NANA APPIATUA II & 2 ORS VRS NANA APPIAHGYEI NYARKO II (C13/11/2024) [2024] GHAHC 391 (3 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT KIBI ON 3RD DAY OF DECEMBER 2024 BEFORE HER LADYSHIP RUBY NAA ADJELEY QUAISON (MRS) HIGH COURT JUDGE. SUIT NO: C13/11/2024 NANA APPIATUAA II &2 ORS) …. PLAINTIFF VRS: NANA APPIAGYEI NYARKO II) …. DEFENDANTS =========================================================== 1ST, 2nd and 3rd plaintiffs absent Defendant /Respondent absent represented by Joseph Yaw Agyapong Major J.S.K Amissah(RTD) for defendants present Francis Bruce holding brief for Nkrabea Efa Dateh for the Plaintiffs Absent ================================================================ RULING ================================================================ The plaintiffs herein instituted this action by issuing a Writ of Summons with an accompanying Statement of Claim on 16th of July 2024 against the defendant claiming the following reliefs: i. An order of Interlocutory Injunction to restrain the Defendant from pretending to the performing OHUM festival in Akyem Asunafo on grounds that he is a destooled Chief. ii. Costs and legal fees The plaintiff filed an application for injunction on 16/7/2024. The defendant on 7/8/2024 filed an affidavit in opposition vehemently opposing the application for injunction. Subsequently the plaintiff on 27/08/2024 filed a motion for contempt. The defendant responded in an affidavit in opposition filed 3/09/2024. 1 On 26/11/2024 the court suo motu directed the parties to address it on the competency of the writ of summons in respect of the fact that the relief on the writ is not a substantive relief. Both parties addressed the court orally as they did not file any written submission. The defendant in addressing the court stated that by the rules of court, precisely order 25 rule 1 of C.I 47 of High Court Civil Procedure Rules governs Interim injunctions. It is to be issued by filing a motion and not a writ of summons. Since the applicants did not follow the rules then it is incompetent. The Counsel for Plaintiff responding to the application vehemently opposed same. He contends that their intent was to avoid veering into issues of chieftaincy which this court would not be clothed with jurisdiction to address. A very simple question that would beg for answer is how the respondent can be restrained from going on with what is contained in their pleadings. It is their humble belief that though there should be a substantive claim before an order for injunction can be requested from the Honourable Court they believe that the end product of this court’s decision should be just. It is also trite law that the court has the discretion to sometimes consider the content rather than the form. They believe that since this court is clothed with jurisdiction to grant the injunction which is the relief on their statement of claim the court should graciously consider the content for the end of justice to be achieved rather than form. BY COURT: it is trite learning that an application for interim injunction is basically factual, and each case must be determined on its own facts with a guide from established principles of Law. The procedure for dealing with Injunction under our civil jurisdiction is regulated by Order 25 rule (1) of CI 47 which states that “The Court may grant injunction by an Interlocutory Order in all cases in which it appears to the court to be just and convenient to do so and the order may be made either conditionally or upon such terms and conditions as the court considers fit”. In BAIDEN v TANDOH [1991]1 GLR 98, the High Court held at page 121 thus: 2 “Where a plaintiff seeks an order of interim injunction, he must first of all establish a prima facie case that the right he is seeking to protect exists and that there has been a breach and a threat of is continuing so as to cause him irreparable damage if the defendant is not restrained. The Court will then consider the issue of balance of convenience; that I s whether it I s proper to grant or refuse the interlocutory relief……the relative strength of the defence is a relevant consideration in the process”. Also in WELFORD OUARCOO VRS ATTORNEY GENERAL AND ANOTHER [2012] 1 SCGLR 259, the Apex court stated as follows: “…It has always been my understanding that the requirements for the grant of an interlocutory injunction are: first, that the applicant must establish that there is a serious question to be tried; secondly, that he or she would suffer irreparable damage which cannot be remedied by the award of damages, unless the interlocutory injunction is granted; and finally that the balance of convenience is in favour of granting him or her the interlocutory injunction. The balance of convenience, of course, means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief. Where the relief sought relates, as here, to a public law matter, particular care must be taken not to halt action presumptively for the public good, unless there are very cogent reasons to do so, and provided also that any subsequent nullification of the impugned act or omission cannot restore the status quo…” Suffice to state that a writ of summons and statement of claim bearing a relief praying for mere injunction as its only relief without a substantive relief is void/incompetent. In REPUBLIC VRS HIGH COURT, TEMA, EXPARTE M.V.ESCO SPIRIT [2003 – 2004] 1SCGLR 689 the Supreme Court unanimously held thus: “…Since the writ had not been endorsed with any substantive claim or cause of action, it was a nullity and no valid orders could be based on it…” 3 In effect there must be a substantive claim before claiming for an injunction; as an application for ancillary relief without substantive relief is incompetent and void. Where the writ is not endorsed in accordance with mandatory provisions of the HIGH COURT (CIVIL PROCEDURE) RULES 1954 (similar provision in C.I.47 emphasis mine) it was a nullity upon which no valid orders could be based. See: MOSI VRS BAGYINA [1963] 1 GLR337 SC Again defects found in a writ of summons may be cured by reading the writ together with the statement of claim. See: HYDRAFOAM ESTATES GHAN LTD VRS [2013 - 2014] 2SC GLR 117. See also: BANDOH V APPEAGYEI GYAMFI [2018 - 2019]1 GLR 299. ORDER 81 OF C.I.47 has made it clear that perhaps apart from lack of jurisdiction in its true and strict sense , any other wrong step taken in any legal suit should not have the effect of nullifying the judgment or the proceedings. See: AXEX COMPANY LTD VRS KWAME OPOKU & 2ORS (CIVIL APPEAL) NO. 54/23/2008, 19 JULY 2012 IN conclusion, a writ must be endorsed properly in accordance to the mandatory provision of the high court civil procedure rules to be valid. This writ has not been endorsed with any substantive claim or cause of action, thus a nullity SEE: EMMANUEL ROCKSON VRS ILIOS SHIPPING CO SA & 1ORS CIVIL APPEAL J4/13/2007, 10/FEB/2010 The suit is struck out as incompetent. H/L RUBY NAA ADJELEY QUAISON [MRS.] 4 JUSTICE OF THE HIGH COURT 5