18TH JULY LTD vs. YEHANS INTERNATIONAL LTD [2011]DLSC11118

Date	2011-11-30
Suit No.	(CIVILAPPEAL NO14/23/2011)
Citation No.	[2011]DLSC11118

BROBBEY JSC

ANSAH JSC

RC OWUSU JSC

ANIN YEBOAH JSC

BAFFOE-BONNIE JSC

DANIEL OWUSU-NYAMPONG FOR THE APPELLANT

GABRIEL PWAMANG FOR THE RESPONDENT

[2011]DLSC11118
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													<main id="main" class="content" style="min-height: 60rem" >18TH JULY LTD<o:p></o:p>vs.<o:p></o:p>YEHANS INTERNATIONAL&nbsp;&nbsp; LTD<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 0cm 0cm">(CIVILAPPEAL
NO14/23/2011) &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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DATE:
30 NOVEMBER 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DANIEL OWUSU-NYAMPONG FOR THE APPELLANT.<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

BROBBEY JSC, ANSAH JSC, RC OWUSU JSC, ANIN YEBOAH JSC, BAFFOE-BONNIE JSC<o:p></o:p>

</div>&nbsp;ANIN YEBOAH JSC
delivered the judgment of the court. On 30 November 2011, we dismissed the
interlocutory appeal from the unanimous decision of the Court of Appeal and
reserved our reasons. We now proceed to offer our reasons for the dismissal of
the appeal.<o:p></o:p>The
appellant-respondent herein, Yehans International Ltd (hereafter referred to as
the plaintiff) commenced an action at the High Court, Accra on 22 December 2006
for declaration of title to a piece of land at the Light Industrial Area,
Accra. As usual with actions for declaration of title, other ancillary reliefs
were sought against the appellant herein, 18th July Ltd (hereafter referred to
as the second defendant).
On 30 January 2007, the plaintiff filed a motion on notice for interlocutory
injunction.<o:p></o:p>In
a rather terse affidavit sworn to by one Pendagrass Borketey Alabi, the
plaintiff exhibited an indenture and land certificate and deposed to the fact
that the defendant would change the nature of the land in dispute if not rest
ained by an injunction. The writ was accompanied by a statement of claim in
which the plaintiff company pleaded its root of title and long possession of
the land.<o:p></o:p>The
writ of summons was issued against the developer of the disputed land, but
appearance was entered by a solicitor who proceeded to file a statement of
defence thereafter. On 6 February 2007, the defendant filed a statement of
defence, traversing virtually all allegations of facts pleaded by the plaintiff
company in the statement of claim. Virtually all the facts pleaded in the
statement of claim were denied with a counterclaim against the plaintiffherein.
The affidavit in opposition to the interlocutory application, was equally
supported by exhibits in the nature of land certificate and correspondence
which were relied on to resist the application for interlocutory injunction.<o:p></o:p>The
case attracted several other interlocutory applications which we do not find it
necessary to refer to in determining the instant appeal. When the application
for interlocutory injunction was moved against the original defendant, who was
styled as the developer, His LordshipAbada J, on 28 February 2007, granted the
application. On 24 May 2007, however, the second defendant company, 18th July
Ltd, which is the appellant herein, filed a motion on notice to vacate the
order of interlocutory injunction granted on 28 February 2007. The application
was resisted by the plaintiff company but was subsequently withdrawn. The
plaintiff company had, on record, already filed a motion on notice for
interlocutory injunction to restrain the second defendant herein.<o:p></o:p>The
motion was moved on 24 July 2007 before the same judge and on 26 October 2007
same was granted. The second defendant lodged an interlocutory appeal to the
Court of Appeal on 6 November 2007. The Court of Appeal on 18 February 2010
dismissed the appeal. This appeal is the second appeal against the
interlocutory injunction granted by the High Court which was dismissed by the
Court of Appeal.<o:p></o:p>Before
us, several grounds of appeal were filed by the second defendant which were all
argued in detail. The first ground of appeal argued, sought to attack the
capacity of the deponent to the affidavit in support of the motion for
interlocutory injunction at the High Court. According to counsel for the second
defendant, the law clerk lacked capacity to
swear positively to the affidavit. According to counsel, this was a fundamental
issue which was ignored by the Court of Appeal. The argument on want of
capacity was well-addressed, in our view, by the High Court. Indeed, the
affidavit contained several exhibits concerning the disputed land which the
trial judge found to be regular. We have not been referred to any case law or
procedural rule, which prohibits a law clerk in the chambers of a lawyer
handling the case, from swearing to an affidavit in support of an application
for interlocutory injunction. If the clerk could disclose his source of
information, this will be regular. Order 20, r 8(1) and (2) of the High Court
(Civil Procedure) Rules, 2004 (CI 47) which regulates this issue, states the
position as follows:<o:p></o:p>"8. Contents of affidavit<o:p></o:p>