HULSTEIN WARREN FARMS LTD AND REV DONALD WARREN vs. ECO PLANET BAMBOO WEST AFRICA LTD AND HUGO SLABBER, GENERAL MANAGER [2017]DLHC4112

HULSTEIN WARREN FARMS LTD AND REV DONALD WARREN vs. ECO PLANET BAMBOO WEST AFRIC... [2017]DLHC4112

Date	2017-02-01
Suit No.	SUIT NO. OCC 34/2017
Citation No.	[2017]DLHC4112

DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT

GEORGE AGYEKUM FOR PLAINTIFFS/APPLICANTS

GOLDA DENYO FOR THE DEFENDANTS/RESPONDENTS

[2017]DLHC4112
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													<main id="main" class="content" style="min-height: 60rem" >HULSTEIN WARREN FARMS
LTD AND REV DONALD WARREN<o:p></o:p>vs.<o:p></o:p>ECO PLANET BAMBOO WEST AFRICA LTD AND HUGO SLABBER, GENERAL
MANAGER <o:p></o:p>[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT&nbsp;NO. OCC 34/2017&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: 1ST FEBRUARY, 2017<o:p></o:p>

</div>COUNSEL
<o:p></o:p>GEORGE AGYEKUM FOR
PLAINTIFFS/APPLICANTS <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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</div><p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
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<p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
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</div>On 25 November, 2016, the
Plaintiffs/Applicants herein brought this instant application for an interlocutory
injunction pursuant to Order 25 of the High Court (Civil Procedure) Rules (C.I
47). They are praying this honourable court to restrain the defendants, their
servants or agents from entering unto the 1st plaintiff’s farm or any portion
thereof and from removing the Bamboo Nursery Infrastructure in any manner
whatsoever. <o:p></o:p>The grounds of the
application are contained in the affidavit in support filed on 25/11/2016 and a
supplementary affidavit in support of the motion filed on 19/12/2016.<o:p></o:p>The Respondents are
opposed to the application and have demonstrated the grounds in the affidavit
in opposition filed on 12/12/2016 as well as the supplementary affidavits in
opposition filed on 16/12/2016 and 13/01/2017 respectively.<o:p></o:p>Many documents have been
filed by the parties in the prosecution of this motion. The parties have also traded
accusations and counter accusations in relation to the issues involved in the
case. It cannot be gainsaid that this is a hotly contested application. <o:p></o:p>After reading the various
affidavits and their annexures as well as the statements of case of both
parties, it is glaring that applicants’ position that the 1st Respondent
through its CEO has entered into an agreement with the 1st applicant
for the future transfer of interest in the nursery infrastructure from the 1st
Respondent to the 1st Applicant has necessitated this application.
The applicants allege that by the terms of the agreement with Hulstein Warren,
the applicant herein were to pre-finance the services rendered at the project
site. They also aver that the 1st Defendant/Respondent has
undertaken to make good the cost incurred on the nursery facility and that the
said facility in dispute will remain on the property of Hulstein Warren Farms
Ltd after the planting of the North Bandai Concession has been completed and that
ownership of the same would be transferred to the 1st Plaintiff. The
applicants are unhappy with what they perceive as moves by the Respondents
herein to decommission the infrastructure in violation of the said agreement.
In their supplementary affidavit, the applicants attached a document (Exhibit
FA) which they described as the agreement between the parties.<o:p></o:p>The Respondents have
denied that the 1st Respondent has agreedwith the 1stApplicant
for the latter to pre-finance the project in return for the greenhouse nursery
and its infrastructure at the end of the project.<o:p></o:p>At the hearing of the
motion the parties canvassed the above facts and learned counsel for the
respondents opposed the granting of the order of interlocutory injunction. Counsel
for the Respondent attacked the relevance of the purported Agreement document which
had been exhibited by the Applicant describing it as a due diligence report
rather than an agreement.<o:p></o:p>Now the question is:
should the interlocutory injunction be granted?<o:p></o:p>The grant of interlocutory
injunction is governed by Order 25 Rule 1 of the High Court (Civil Procedure)
Rules, C.I. 47. Order 25 Rule 1 (1) provides as follows:<o:p></o:p>‘‘The
Court may grant an injunction by an interlocutory order in all cases in which
it appears to the Court to be just or convenient to do so, and the order may be
made either unconditionally or upon such terms and conditions as the Court
considers just.’’ <o:p></o:p>The foremost consideration
adopted by the court in the grant of injunction is based on whether on the
balance of convenience the grant of the order would be just. As rightly pointed
out by counsel for the Respondents, the jurisdiction to grant an injunction
does not confer an arbitrary or unregulated discretion on the court. The twin
ethos of ‘‘justice and convenience’’ are key in the determination.<o:p></o:p>