ABASS BRAIMAH vs. ADOLF SANKA MARTEI [2012]DLHC7063

Date	2012-03-08
Suit No.	SUIT NO. BMISC 127/2011
Citation No.	[2012]DLHC7063

HIS LORDSHIP JUSTICE PETER DEI OFEI

[2012]DLHC7063
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													<main id="main" class="content" style="min-height: 60rem" >ABASS
BRAIMAH<o:p></o:p>vs.<o:p></o:p>ADOLF SANKA MARTEI<span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;mso-fareast-font-family:
&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0"><o:p></o:p>[HIGH COURT,
ACCRA]<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="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO. BMISC 127/2011 &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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 8TH MARCH, 2012<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">

HIS LORDSHIP JUSTICE PETER DEI OFEI<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;
padding:0in 0in 1.0pt 0in">

</div>This
is one of the two interim motions filed on behalf of the Defendant for an order
of interlocutory injunction restraining the Plaintiff/Respondent from
terminating the tenancy agreements of the tenants in the Property, the subject
matter of this dispute pending the final determination of the suit. <o:p></o:p>It
is not in dispute that the Defendant/Applicant is the legal and beneficial
owner of the land with building thereon, which is the subject-matter of this
dispute. It is also not in dispute that the parties herein entered into a
Management contract on the 4th day of February 2009. A copy of the Management
contract was attached to the affidavit in support and marked as Exhibit 'A'. <o:p></o:p>It
is the Defendant/Applicant's case that currently the Plaintiff/Respondent has
collected rent advance from the tenants and has failed to pay him his share of
same per the contract between the Defendant and the Plaintiff marked as Exhibit
'A'. That the sum due is GH¢7,394.00. <o:p></o:p>The
applicant does not refer to the appropriate clause under which his share of the
rent is to be paid or which period the amount covers. The Tenancy Agreement
marked as Exhibit 'A' does not state any where how much of the rent is to be
paid to the Defendant and the manner of payment is also not Stated. In fact the
Tenancy Agreement provides remedies at Clause 9(1) thereof And it is reproduced
below: <o:p></o:p>"9(1) If the rent hereby reserved
or any part thereof shall be in arrears and unpaid for two (2) calendar months
after becoming due (whether formally) demanded or not) or the Agency fails to
perform or observe any covenant on its part contained in this Agreement to
observe or perform then and in any case, the landlord or any person authorized
by him may re-enter upon the demised premises or any part thereof in the name
of the whole and immediately this Agreement shall absolutely determine, without
prejudice to the right and remedies of the landlord in respect of any previous
claims or breaches of covenant." <o:p></o:p>I
have glanced thoroughly through the Tenancy agreement and so far no rent is
reserved therein. Furthermore, the Tenancy Agreement does not create any situation
where the landlord will have any direct dealing with Tenants put in occupation
by the Plaintiff. Simply put the Defendant/Applicant is not privy to the
Tenancy Agreement between the Plaintiff and the Tenants, which the former had
put in the premises. <o:p></o:p>The
Defendant can only exercise the remedy or right provided or conferred on the
Defendant in the Tenancy Agreement at Clause 9(1) as quoted above.
Defendant/Applicant has failed by his affidavit evidence to show any violation
of the Defendant's existing right contained in Exhibit 'A' and that renders
this instant application unmeritorious. <o:p></o:p>The
Defendant/Applicant's counsel has rightly cited several legal authorities none
of which supports his case. He has quoted ATKINS COURT FORM, 2ND Edition Vol.
22 D61 where it is stated that: <o:p></o:p>"An interim injunction is granted
in order to prevent the commission of some act or the alteration of the status
quo or[sic] or to prevent the commission of some act or the taking of some
steps which if done or taken will be impossible or difficult to reverse or is
in all circumstances clearly vexatious." <o:p></o:p>Counsel
states further though rightly that: <o:p></o:p>'The
basis for the grant of an interlocutory injunction has been finitely
established by a maze of legal authorities over the years to be caught under
the ambit of the following: <o:p></o:p>a.
The applicant must have some legal or equitable right that could be asserted in
law and thus, demonstrate that the claim was not frivolous. <o:p></o:p>b.
Whether or not on the balance of convenience the Applicant would suffer more
harm if the order was not granted. <o:p></o:p>c.
Whether damages will adequately compensate the Applicant in the event that the
dispute was resolved in his favour at the conclusion of the trial. <o:p></o:p>An
injunction is an equitable remedy and each application must be looked at within
its peculiar circumstances. <o:p></o:p>Counsel
then cites the following cases to support his claim. <o:p></o:p>