HAYFORD BOAMAH AND KWABENA ADJEI BOATENG vs. KOFI AMPONSAH-EFFAH KUMASI METRO ASSEMBLY [2009]DLCA4842

HAYFORD BOAMAH AND KWABENA ADJEI BOATENG vs. KOFI AMPONSAH-EFFAH KUMASI METRO... [2009]DLCA4842

Date	2009-01-29
Suit No.	CIVIL APPEAL NO: H1/67/2007
Citation No.	[2009]DLCA4842

GBADEGBE J.A. (PRESIDING)

DUOSE J.A.

ADDOH J.A.

[2009]DLCA4842
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													<main id="main" class="content" style="min-height: 60rem" >HAYFORD BOAMAH AND KWABENA ADJEI BOATENG <o:p></o:p>(PLAINTIFFS/RESPTS/RESPTS)<o:p></o:p>vs.<o:p></o:p>KOFI AMPONSAH-EFFAH <o:p></o:p>(DEFENDANT/APPEALT/APPLT.)<o:p></o:p>KUMASI METRO ASSEMBLY<o:p></o:p>(APPLICANT/APPELLANT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO: H1/67/2007&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; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 29TH JANUARY, 2009<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;
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GBADEGBE&nbsp;&nbsp; J.A. (PRESIDING), DUOSE&nbsp;&nbsp;&nbsp; J.A. , ADDOH&nbsp;&nbsp; J.A.<o:p></o:p>

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

</div>Gbadegbe J. A.&nbsp; read the judgement of the court as follows:<o:p></o:p>My Lords, the questions that we have
to decide in this appeal are relatively simple and may be posed as follows:
Whether a plaintiff can obtain an order of interlocutory injunction ex-parte
before the issue of a writ and also whether in such a case the order made by
the court upon the grant of the application may be directed at a non-party and
finally whether in its nature the order so made by the court may subsist until
judgment in the action? <o:p></o:p><o:p>&nbsp;</o:p>In the court below, the
defendant-appellant though not served with the instant writ had an order of
interlocutory injunction made ex-parte against him and the Kumasi Metropolitan
Assembly (KMA), the latter not being a party to the action. As a result, the
appellant applied to the trial Circuit Court sometime thereafter for an order
to set aside the order of interlocutory injunction. After hearing arguments
from the parties, the learned trial judge refused to yield to the urgings of
the appellants with the result that the ex-parte order of May 17 2004 was
enabled by the learned trial judge to subsist until the final determination of
the action. The appellant who from the processes before us must have been
inconvenienced by the refusal of his application sought leave from the court
below to appeal from the order and having obtained leave so to do the instant
proceedings are now before us for our decision. <o:p></o:p><o:p>&nbsp;</o:p>In his complaint to us the appellant
urged several grounds. In this delivery, the grounds of appeal would be
considered in terms of their relevance for the purpose of deciding the instant
appeal. Reference is made to the fact that the order was obtained before the
issue of the writ and also that it was made to affect a person not a party to
the action. Also to be noted is the objection taken to the duration of the
order. Although the respondents were served with the statement of case, they
have not responded thereto and as such our decision is based only on the
submission of the appellants’ case.<o:p></o:p><o:p>&nbsp;</o:p>In our view this case raises for our
consideration points of procedure of some considerable importance that have
been set out in the opening paragraph of this delivery.&nbsp; Although Order 25 rules 7, 8 and 9 of the
High Court Rules CI 47 empower the Court in cases of urgency to make orders of
interlocutory injunction ex-parte; the said power appears to be circumscribed
by Order 25 rule 12 as follows:<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;“That
the plaintiff shall not make such an application before the issue of the writ.”<o:p></o:p>This being the position it was
contended on behalf of the appellant that the learned trial judge was wrong in
acceding to the application for injunction.&nbsp;
In our view, the above provision appears to be a statement of the
general rule to which there may be exceptions in cases of urgency. We observe
regarding the said point that when the court is satisfied having regard to the
affidavit placed before it that the applicant requires protection before the
issue of the writ and that if the application were to be proceeded with only
after the issue of a writ, irremediable hardship would thereby be occasioned to
the applicant then it may make an order ex-parte subject to an undertaking by
the applicant to issue the writ immediately. See: (1) Chanoch v Hertz (1888) 4
T. L. R.331; (2) Thorneloe v Skoines
(1873) LR16 Eq.126; (3) Young v
Brassey (1875) 1 Ch. D 277.<o:p></o:p>