BAIDEN vs. TANDOH AND OTHERS [1989]DLHC2219

Date	1989-02-28
Suit No.
Citation No.	[1989]DLHC2219

KPEGAH J.

J. B. K. SPIO FOR THE APPLICANT.

FRANK SAWYERR FOR THE RESPONDENTS.

[1989]DLHC2219
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													<main id="main" class="content" style="min-height: 60rem" >BAIDEN<o:p></o:p>vs.<o:p></o:p>TANDOH
AND OTHERS<o:p></o:p>[HIGH
COURT, CAPE COAST]<o:p></o:p>[1991] 1
GLR 98<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: 28 FEBRUARY 1989<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J. B. K.
SPIO FOR THE 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">

FRANK
SAWYERR FOR THE RESPONDENTS. <o:p></o:p>

</div>JUDGMENT
OF KPEGAH J.<o:p></o:p>This is
an application for an order of interim injunction to restrain the defendants,
their agents, servants and representatives “from having anything to do with the
disputed land pending the final determination of this suit.” In her writ of
summons, the plaintiff is seeking a declaration of title to a certain piece of
land therein described. It is clear from the description that the plaintiff’s
and the defendants’ family have a common boundary and the issue is where this
boundary is to be fixed, or its correct position is.<o:p></o:p>In
support of her application, the plaintiff sought to rely on certain documents,
including a previous judgment in favour of one Mrs Mary Brew through whom the
plaintiff is claiming the disputed land. This felow, the plaintiff says is her
predecessor in title and shares boundary with the defendants’ land. This
explains the common boundary between the parties. It is also admitted that the
defendants have leased over 500 acres of the disputed land to a company, Ameen
Sangari Industries, which has cultivated a vast expanse of palm plantation to
support its soap industry. The plaintiff is also seeking to restrain all
tenants put on the land by the defendants.<o:p></o:p>In
opposing the application for interim injunction, learned counsel for the
defendants, Mr Frank Sawyerr, submitted that the plaintiff has failed to
establish a prima facie case to entitle her to the grant of the interim relief
she seeks. The ground for this argument is that the case is one of boundary
dispute and the exact position of the boundary has not been established by the
plaintiff to entitle her to the relief; for one cannot grant such a relief in
respect of land the identity of which is not known. The argument was in
response to an earlier one by Mr Spio, for the plaintiff, that the plaintiff
had established a prima facie case to entitle her to the grant of an order of
interim injunction. Both counsel advanced their respective cases as if they
were unaware of the case of Vanderpuye v. Nartey [1977] 1 G.L.R. 428. But I do
not think so, for at least Mr Sawyerr specifically referred to it in his
submission before this court. The Vanderpuye case (supra) is often cited as
authority for the proposition that it is not necessary, in an application for
an order of interim injunction, for the plaintiff to establish a prima facie case
but rather the consideration should be whether there is a need to preserve the
status quo in order to avoid irreparable damage to him. The dictum often quoted
as supporting such a proposition is to be found at 432 of the report. Amissah
J.A. who read the unanimous judgment of the Court of Appeal said:<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
governing principle should be whether on the face of the affidavits there is
need to preserve the status quo in order to avoid irreparable damage to the
applicant and provided his claim is not frivolous or vexatious.<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
question for consideration in that regard resolves itself into whether on
balance greater harm would be done by the refusal to grant the application than
not. It is not whether a prima facie case however qualified and with whatever
epithet, has been made.”<o:p></o:p>The above
dictum has often been quoted as a coup-de-grace by the Court of Appeal to the
time-honoured practice in our court that a plaintiff who seeks an order of
interim injunction must prima facie establish that the right he seeks to
protect in fact exists and that there is a breach or threatened breach of that
right which was likely to cause him irreparable damage. The case is therefore
considered to be the locus classicus on such applications in our courts.<o:p></o:p>I have
decided in this ruling to take a close look at the Vanderpuye case (supra)
simply because the reference by both counsel to the need to establish a prima
facie case has invoked in me nostalgic sentiments about a practice which has
been in vogue in the courts but now appears to have been jettisoned by the
Court of Appeal in Vanderpuye v. Nartey (supra); a decision in which there
appears to be a complete acquiescence by the legal profession. This is as it
should be, because a Court of Appeal decision is binding on the High Court and
other courts below, and it cannot be ignored without the risk of a censure. In
deciding to take a close look at the Court of Appeal decision, therefore, I
have no doubt as to the greatness of the exercise I intend to undertake in this
ruling, i.e. to determine whether the case of Vanderpuye v. Nartey (supra) is
really an authority for the proposition that where a plaintiff seeks an order
of interim injunction, he needs not show a prima facie case but only
demonstrate that there is the need for the preservation of the status quo in
order to avoid irreparable damage to him. Also, I have no illusion that the
views I am about to express may cause a stampede or, at least, ripples in legal
circles and possibly create such a furor that I may be accused of lésé majesté
and denounced accordi</main>