CYNTHIA OSEI KOFI & ANOR vs. ALHAJI IBRAHIM ISSAKA & ANOR [2018]DLCA4616

Date	2018-04-01
Suit No.	SUIT NO: H1/87/2018
Citation No.	[2018]DLCA4616

KUSI APPIAH (J.A) PRESIDING

LOVELACE-JOHNSON (J.A)

HENRY A. KWOFIE (J.A)

BELINDA PWAMANG FOR THE DEFENDANTS/APPELLANTS

[2018]DLCA4616
																																						<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" >CYNTHIA OSEI KOFI &amp; ANOR <o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>ALHAJI IBRAHIM ISSAKA &amp; ANOR <o:p></o:p>(DEFENDANTS/APPELLANTS)<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;
padding:0in 0in 1.0pt 0in">

SUIT
NO: H1/87/2018&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; &nbsp; &nbsp;DATE: 1ST APRIL,
2018<o:p></o:p>

</div>COUNSEL:<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">

BELINDA
PWAMANG FOR THE DEFENDANTS/APPELLANTS<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">

KUSI
APPIAH (J.A) PRESIDING, LOVELACE-JOHNSON (J.A), HENRY A. KWOFIE (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;
padding:0in 0in 1.0pt 0in">

JUDGMENT<o:p></o:p>

</div>AVRIL
LOVELACE-JOHNSON JA:<o:p></o:p>This is an appeal against
the ruling of the High Court granting an order of interlocutory injunction
against the Defendants/Appellants<o:p></o:p>The Plaintiff/Respondents
had sought the injunction against the Defendants and the court in its ruling
had injuncted both parties.<o:p></o:p>Per their grounds of
appeal, the Appellants contend that the trial Judge failed to exercise her
discretion in accordance with the correct principles of law governing such
applications and that the ruling is against the weight of evidence. On this
basis, they seek a setting aside of the said ruling and a ruling made in their
favour.<o:p></o:p>Regarding the first ground
of appeal, it is to be borne in mind that an appellate court will be loathe to
disturb the exercise of discretion by a lower court unless the circumstances
are exceptional. See CRENTSIL V CRENTSIL
(1962) 2 GLR 171 where the Supreme Court stated as follows<o:p></o:p>As
to appeals from the exercise of the courts discretion, it is a rule of law deep
rooted and well established that the Court of Appeal will not interfere with
the exercise of the court’s discretion save in exceptional circumstances<o:p></o:p>Such exceptional
circumstances will include a judge allowing the exercise of his discretion to
be interfered by irrelevant considerations or ignoring the relevant. See<o:p></o:p>AGYEI
V SIMILAO (2012) 1 SCGLR 127 @ 135 which also cites the
English case of BLUNT V BLUNT 2 ALL ER
76, HL which states that an appeal not being from the discretion of the
lower court to the discretion of the appellate one, to succeed on a ground of
appeal such as the one under consideration, it has to be shown that<o:p></o:p>The
court acted under a misapprehension of facts in that it either gave
consideration to irrelevant or unproved matters or omitted to take relevant
matters into account<o:p></o:p>The complaint here appears
to be that the court failed to apply the laid down guidelines in considering
whether or not to grant an application for interlocutory injunction. A reading
of the ruling on appeal shows that the learned High Court Judge after
discussing both local and foreign authorities injuncted both parties. It is
clear from the ruling that she considered herself unable to make the order for
injunction without going into the facts, an exercise she was not allowed to
perform at that stage of the proceedings and so ‘threw up her hands in despair”
so to speak and injuncted both parties as she had power to do under order 25
rule 1(1). Here, I refer to the power to make the grant on terms.&nbsp; She wrote about being ‘worried’ about the
requirement to assess if there was a prima facie case established when at that
stage one could not delve into the facts and even went further to ponder
whether deciding on who loses more if the status quo was maintained did not
amount to delving into the facts. Clearly the learned trial Judge had more
questions about the propriety of the factors she was required to consider in
such an application than an answer to the question of who merited the benefit
of the exercise of her discretion. She did mention the factors and discussed them
in her ruling but in spite of her misgivings and discomfort she was duty bound
to state clearly whether after applying the factors to the circumstances of the
case before her a grant of the application was what was warranted. Her ruling
does not show that she did this before concluding that the just thing to do was
to injunct both parties.<o:p></o:p>I am satisfied that from
the record it is not clear that the learned High Court applied the necessary
factors to the facts of the present case and that is more than sufficient
reason to interfere with her exercise of discretion. In the result, I consider the
first ground of appeal made out. It succeeds and is hereby upheld.<o:p></o:p>