CENTRACOR RESOURCES LTD vs. BOOHENE AND OTHERS [1993]DLCA5040

Date	1993-02-05
Suit No.	1992 – 93] 4 G B R 1512 – 1519 C.A
Citation No.	[1993]DLCA5040

KPEGAH JSC

AMUAH JA

LUTTERODT JA

WILLIE FUGAR FOR THE APPELLANT.

QUASHIE-IDUN FOR THE RESPONDENTS.

[1993]DLCA5040
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >CENTRACOR RESOURCES LTD<o:p></o:p>vs.<o:p></o:p>BOOHENE AND OTHERS<o:p></o:p>[COURT
OF APPEAL]<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">

1992 – 93] 4 G B R 1512 – 1519
C.A&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; &nbsp; &nbsp; &nbsp; DATE: 5 FEBRUARY 1993<o:p></o:p>

QUASHIE-IDUN
FOR THE RESPONDENTS.<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 1.0pt 0in">

KPEGAH
JSC, AMUAH JA, LUTTERODT JA<o:p></o:p>

</div>KPEGAH JSC. <o:p></o:p>This
is an appeal against the ruling of an Accra High Court presided over by
Kwadu-Amponsam J refusing an application for an order of interim injunction
brought by the plaintiff.<o:p></o:p>The
plaintiff-appellant (hereinafter referred simply as the plaintiff) is a limited
liability company registered in the Isles of Man, in the British Isles. The 1st
defendant, Mr Boohene, is the Managing Director of the 2nd defendant, a limited
liability company registered under the laws of Ghana. The share capital of the
2nd defendant is owned by the 1st defendant. The defendants hold a mineral
concession at Obuom in the Ashanti Region of the Republic of Ghana.<o:p></o:p>On
14 June 1991, the 1st defendant signed an agreement with the plaintiffs in the
Republic of South Africa in respect of the defendants’ concession. The essence
of the agreement was for the parties to co-operate in the mineral prospecting
operations on the said concession. If the prospecting proved good, the plaintiffs
and the 1st and 2nd defendants would form a company to exploit the minerals. In
consideration, the 1st defendant would be given 10% of the share capital of a
company to be formed with an option for more shares. The plaintiff, under the
said agreement, was enjoined “to use its reasonable endeavours to raise funds
necessary for the mining company to commence mining operations.” The defendants
also warranted not to alienate their interest in the concession to anybody.<o:p></o:p>In
breach of the said agreement, according to the plaintiff, the 1st and 2nd
defendants entered into a joint venture agreement with Oro Sunkwa Inc, a
company incorporated in Denver, Colorado, and they incorporated the 3rd
defendant company, Obuom Goldfields Limited to prospect minerals in the
concession. The plaintiff therefore brought this action against the defendants
claiming the following reliefs:<o:p></o:p>“1. an order of perpetual injunction
to restrain the defendants, their agents representatives or assigns from
performing any acts inconsistent with the agreement of 14 June 1991 between the
plaintiffs and 1st and 2nd defendants.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
an order of perpetual injunction to:<o:p></o:p>(a) restrain the 1st and 2nd
defendants from entering any agreement or contract with the 3rd defendants,
their servants or agents or other 3rd parties with the view to exploiting or
developing land or proving gold at land situate in Ashanti and held by the 2nd
defendants under license No AC 1550/88 and bearing Land Registry title number
123804;<o:p></o:p>(b) restrain the 3rd defendants their
servants, agents, privies and or assigns from dealing with exploiting
developing and or proving gold in the land in Ashanti and under license
aforementioned.<o:p></o:p>3(a) an order compelling the 1st and
2nd defendants to hand over all documents on land No 12804 and concession No AC
1550/88 to the plaintiff as agreed between the plaintiff and 1st and 2nd
defendants and to do all acts consistent with the agreement of 14 June 1991,
executed between the plaintiff and 1st and 2nd defendants; alternatively,<o:p></o:p>(b) an order for specific performance
of the agreement of 14 June 1991 executed between the plaintiff and 1st and 2nd
defendants.<o:p></o:p>4. any other orders as this honourable
court will deem fit to make in the present circumstances.”<o:p></o:p>The
plaintiff followed up immediately with an application for an order of interim
injunction. The learned trial judge refused the application. Dissatisfied with
the said decision, the plaintiff appealed to this court.<o:p></o:p>Before
us, learned counsel for the plaintiff, Mr Willie Fugar, argued that once the
court below found that there were serious issues to be tried between the
parties, (in other words, the action not being frivolous or vexatious), it
should have exercised its discretion in favour of the plaintiff and granted the
application as the plaintiff stood to suffer irreparable damage unless the
defendants were restrained. He also castigated the court below for not
considering the balance&nbsp;&nbsp; of&nbsp;&nbsp; convenience&nbsp;
after&nbsp; holding&nbsp; that&nbsp;&nbsp;
the&nbsp;&nbsp; action&nbsp; was&nbsp;
not frivolous or vexatious.<o:p></o:p>Mr
Quashie-Idun who appeared for the 1st and 2nd defendants argued that the
agreement which formed the basis of the action was so vague and ambiguous that
no court would order specific performance since such an order would entail the
constant supervision of the court. Also, an order of interim injunction could
lead to judicial sanction in case of breach. It must therefore be specific and
direct in its prohibition. An order of interim injunction, the parameters of
which were indeterminate, or ambigous would entail the court's constant
supervision.<o:p></o:p>The
case of Vanderpuye v Nartey [1977] 1 GLR 428 is often cited in our courts as
the locus classicus on the principles to be applied when an application for an
order of interim injunction is being considered. The decision in the Vanderpuye
case is a decision of this court which under normal circumstances I am bound to
follow.<o:p></o:p>Speaking
per Amissah JA the Court of Appeal</main>