BADU vs. PAINTSIL [1976]DLHC1249

Date	1976-01-14
Suit No.
Citation No.	[1976]DLHC1249

QUASHIE-SAM J.

DAWSON FOR THE APPELLANT.

GWIRA FOR THE RESPONDENT.

[1976]DLHC1249
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													<main id="main" class="content" style="min-height: 60rem" >BADU <o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;vs. <o:p></o:p>PAINTSIL <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1989-90]1 GLR 400<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
14 JANUARY
1976<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DAWSON FOR THE APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

QUASHIE-SAM J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF QUASHIE-SAM J.<o:p></o:p>The
defendant-appellant (hereinafter referred to simply as the defendant) has
appealed against the ruling of the District Court Grade II, Takoradi, dated 8
September 1975, given in favour of the plaintiff-respondent (hereinafter simply
referred to as the plaintiff).<o:p></o:p><o:p>&nbsp;</o:p>The
background of the ruling is not sufficiently stated in the ruling, but it does
appear from the record that the plaintiff sued the defendant for ¢300.00
damages for an alleged trespass to land. On 25 July 1975, the court granted an
interim order of injunction restraining both parties till the determination of
the case. That order and how it came to be made is not included in the record
of appeal, which only contains the writ of summons taken out on 19 June 1975,
the notes of the court sitting on 25 July 1975 showing the parties as being
present when the matter was adjourned to 18 August 1975, and the court notes of
18 August 1975 when counsel for the defendant made an application for a review
of the interim injunction order granted on 25 July 1975, on the ground that the
plaintiff did not apply for it by the proper method. The court adjourned to 8
September 1975 for its ruling which it gave dismissing the application for
review.<o:p></o:p><o:p>&nbsp;</o:p>It is
against that ruling that this appeal has been lodged on the ground that the
trial magistrate erred in granting the interim order of injunction when there
was no endorsement for perpetual injunction on the writ of summons.<o:p></o:p>At the
hearing of the appeal, this court had the opportunity to peruse the relevant
record book of the lower court which has cured the imperfection of the record
of appeal. In that record book the following is recorded on 25 July 1975, both
parties being present:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
plaintiff applied for an interim injunction verbally in court and said the
defendant is wasting the land by putting up building. The defendant said he is
building on the land. I am satisfied that an interim injunction order be
granted. Both parties are hereby restrained from entering on the plot for a
purpose of doing anything on the land until the final determination of the
case.”<o:p></o:p><o:p>&nbsp;</o:p>Counsel for
the defendant in this court argued that since the writ was not endorsed for
perpetual injunction as an additional relief, and the court was not seised with
facts on affidavit as to whether or not there was waste being committed on the
land, the application for interim injunction was improper. He submitted that
the application should have been by way of motion on notice with supporting
affidavit to enable the defendant to oppose the same by an affidavit. In this
respect, counsel referred to Order 27, rr. 1 to 4 of the Second Schedule to the
Courts Ordinance, Cap. 4 (1951 Rev.), as to procedure. He further contended
that in such applications, the court should consider the question as to who
would suffer more hardship, since the defendant had reached roofing stage in
putting up a building on the land.<o:p></o:p><o:p>&nbsp;</o:p>In reply,
counsel for the plaintiff contended that under Order 42, r. 2 of the Second
Schedule to Cap. 4, the application by counsel for review of the order of
interim injunction was itself out of time and should not have been entertained
by the lower court as it was made’ more than fourteen days from the date of
that order, the order having been made on 25 July 1975 and the application for
review having been made on 18, August 1975. He contended further that the court
had a discretion to grant interim injunction under Order 14, r. 1 of the Second
Schedule to Cap. 4 which it did </main>