LARYEA vs. MACVROOM [1988]DLHC2271

Date	1988-03-15
Suit No.
Citation No.	[1988]DLHC2271

LUTTERODT J.

J. E. OFORI FOR THE DEFENDANT-APPLICANT.

JONES MENSAH FOR THE PLAINTIFF-RESPONDENT.

[1988]DLHC2271
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													<main id="main" class="content" style="min-height: 60rem" >LARYEA<o:p></o:p>vs.<o:p></o:p>MACVROOM<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p>[1991] 1
GLR 190<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 15 MARCH 1988<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J. E.
OFORI FOR THE DEFENDANT-APPLICANT.<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">

JONES
MENSAH FOR THE PLAINTIFF-RESPONDENT. <o:p></o:p>

</div>JUDGMENT
OF LUTTERODT J.<o:p></o:p>At the
hearing of this originating motion on notice, counsel for the respondent raised
this preliminary objection which is also contained in paragraph 6 of the
respondent’s affidavit in opposition filed on 19 January 1988. The thrust of
counsel’s argument is that since the substance of the application is for an
injunction to restrain the defendant, the proper method for initiating the
proceedings should have been by the issue of a writ. Counsel based his
contention on the fact that the relief sought is for an order of injunction;
and since Order 50 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A)
has clearly provided for the method of initiating proceedings where this is the
relief sought, the applicant was enjoined to use this method and no other.
Counsel for the applicant’s answer to this objection is simply that since no
provision has been made under the Companies Code, 1963 (Act 179) for
application under the Code, he had to fall on Order 74 of L.N. 140A for help
and thereby use the English rules.<o:p></o:p>While it
is true that section 217 of Act 179, or for that matter any other section, does
not provide the method for applying for any of the reliefs specified therein,
it is equally true that the relief sought is for an order of injunction. The
problem raised by this preliminary objection is whether in the light of the
relief sought, an originating motion on notice is the proper method of
initiating the proceedings under section 217(1) of Act 179. I would wish to
confine myself to this issue raised by this preliminary point, rather than attempt
to answer the broader question which Taylor J. (as he then was) addressed his
mind to in the case of Luguterah v. Northern Engineering Co. Ltd. [1979] G.L.R.
477, namely the question of what is the proper method for initiating
proceedings to enforce a right under Act 179.<o:p></o:p>It seems
to me that the applicant’s counsel fell on the English rules the minute he
realised that no procedure has been laid down by Act 179 for initiating
proceedings under section 217(1) of Act 179. He drew support from Order 74 of
our rules. This Order stipulates as follows:<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">“Where no
provision is made by these Rules the procedure, practice and forms in force for
the time being in the High Court of Justice in England shall, so far as they
can be conveniently applied, be in force in the Supreme Court of the Gold
Coast.”<o:p></o:p>Again, in
the case of People’s Popular Party v. Attorney-General [1971] 1 G.L.R. 138 at
145 we find this to be “a rule of practice” that where a statute provides for
an application to the court without specifying the form in which it is to be
made, and the normal rules of court do not expressly provide for any special
procedure, such an application may be made by an originating motion. The view
of Odgers On Pleading and Practice (18th ed.) at 350 is that an originating
motion is used only when permitted by the rules or statute. Thus, in this case
where the statute is silent on the method for initiating proceedings, the first
question one has to ask is whether the rules of procedure, i.e. L.N. 140A, has
provided for the method for seeking that relief. When we bear in mind that
Order 74 on which counsel for the applicant relied speaks of “where no
provision is made by these Rules,” then one cannot be far from right when it is
said that the thing to do is to look at the rules and find out whether any
procedure has been provided for. And it is in this exercise that I would agree
that our rules provide for the method of initiating proceedings where the
relief sought is an injunction. This can be seen from rules 7 and 8 of Order
50. Rule 8 in particular says “... and if for an order under Rules 4, 5 or 7 of
this Order it may be made after notice to the defendant at any time after the
issue of the writ of summons ...” Admittedly, Order 50 deals with interlocutory
orders but in substance an interim injunction order does not differ from the
final order in the sense that they both restrain all or one of the parties. The
interim order, as the name implies, is the temporary grant of the final order.
For this reason, if the interim order is obtainable after the issue of the writ
of summons, more so would be the order of perpetual injunction. In this case,
therefore, where the relief sought is for an injunction, I would hold that our
rules provide for the procedure to be adopted when applying for an injunction
under section 217(1) of Act 179, and an originating motion on notice cannot be
the proper method.<o:p></o:p>In so
doing, I have adverted my mind to two things: firstly, there is the amendment
we have not yet taken. The story would not have been any different as again the
intended relief is for an injunction. I would then turn to counsel for the
applicant’s contention that the learned judge in the Luguterah case (supra)
admitted that the principle have firmly been established by the courts that an
originating motion on notice is the proper method of initiating proceedings
under Act 179. In the first place, we find clearly that in all of the instances
where this method was used to initiate proceedings under Act 179 this question
of the propriety of the method was never raised or even considered, if raised.
This was the lamentation of Taylor J. </main>