Progressive Transport Owners and Another v Global Millennium Transport Asso. and Another (E11/10/2023) [2023] GHAHC 688 (6 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION CORAM: CHARITY A. ASEM (MRS.) J. SUIT NO. E11/10/2023 DATE: 6TH NOV., 2023 1. PROGRESSIVE TRANSPORT OWNERS 2. G. P. R. T. U. OF T. U. C. PLAINTIFFS/RESPONDENTS 3. HO – CO-OPERATIVE SOCIETY VRS. 1. GLOBAL MILLENNIUM TRANSPORT ASSO. 2. POWER EXPRESS TRANSPORT SERVICE DEFENDANTS/APPELLANTS 3. GYEEBA PER DORNYUIE EVANS Parties – Plaintiffs/Respondents – absent 1st Defendant/Appellant represented by David Dzako 2nd Defendant/Appellant represented by Wisdom Amenyo 3rd Defendant/Appellant represented by Maxwell Kumah JUDGMENT The defendant/appellant sought leave of this court to filed the instant Interlocutory Appeal against the decision of His Worship Kwesi Appiatse Abaidoo sitting as the District Magistrate Court 1 Ho dated the 23rd February 2022. The issue bothers on the Interlocutory Injunction order made against the appellant herein. FACTS It is always prudent and desirable to give a clear background of issues of this nature. And I proceed to state same by giving brief facts of the case. The facts which can be gathered from the record of appeal is that; the plaintiffs/respondents initiated an action against the defendants/appellants at the District Magistrate Court 1 Ho for the reliefs endorsed as captured in the statement of claim at pages 148 – 150 of the record of appeal. The Plaintiff/Respondents followed up with a Motion Ex - part for interlocutory injunction which was granted on the 20/12/2021 for a limited period. The application was repeated on Notice which was vehemently opposed by the appellants herein. After hearing the parties the court below in exercise of its discretion delivered the ruling which is under attack and can be found at page 49 of the record of appeal. In the said ruling the court granted the Interlocutory Injnction application restraining the appellants from operating at the lorry park under contention on condition that the Plaintiffs/Respondent to give undertaking to pay the sum of GHC3, 000, 00 in damages to appellants should their actions fail after trial. The ruling can be found at pages 60 to 66 of the record of appeal. Out of the above ruling the appellants being aggrieved exercising their rights to appeal brought the instant appeal process. The Notice of Interlocutory Appeal filed pursuant to leave of the court is found at pages 143 -145 of the record of appeal. Grounds of Appeal are as follows. 1. The court erred in disregarding or not considering the issue of the capacity of the plaintiffs/respondents. 2. The court erred in that ruling, the issue of prima facie case ought to be considered in the determination of issues of interlocutory injunctions. 3. The issue of hardship and convenience rather weighed heavily I favour of the defendant/appellants contrary to the court’s ruling 4. The condition given by the court for the undertaking by the plaintiffs/respondents limiting same to GHC3, 000.00 was unwarranted in law and without any basis at all. 5. The court completely failed to consider the case of the defendants/appellants in the considering their exhibits tendered or exhibited. 6. The court did not properly exercised its discretion which was capricious, unjust, unfair and inequitable amongst others. 7. Other grounds may be filled upon receipt of the full record of appeal. I will proceed therefore to discuss the grounds of appeal as set out. In doing so, and for convenience, I will refer to plaintiffs/respondents as plaintiffs and defendants/appellants as simply defendants. Ground 1 – The court erred in disregarding or not considering the issue of capacity of the plaintiffs/respondents. Capacity to sue cannot be dispelled or proved by affidavit evidence. The position of the law as I understand it is that, a person whose capacity to sue is challenged necessarily would have to prove same on oath, the received evidence from the parties assists the court to determine whether or not a party is clothed with capacity to institute proceedings in court. The implication is that the challenge puts the validity of the writ in issue. The judicial authorities are many as I will reference only a few on the above proposition. Please see NANA OWUSU YEBOAH V. ATTORNEY GERNERAL (1019) 143 GMJ 208 C. A FOSUA & ADU POKU V. DUFIE (DSD) & ADU POKU MENSAH (2009) SCGLR 310 here, the Apex court held that; ‘Any challenge to capacity thereof put the validity of a writ in issue. It is a proposition familiar to all Lawyers that the question of capacity, like a plea of limitation is not concerned with the merits. So that if the axe falls, then a defendant who is lucky enough to have the advantage of the impeachable defence of lack of capacity in his opponent is entitled to insist upon his right.’ More importantly in the instant case under attack, the record of appeal revealed that the trial court had heard arguments from both learned lawyers on the issue of capacity on the 20th January, 2022 and expressed its opinion in the matter as appears at pages 46 to 47 thereof. There is no indication however that that decision of the trial Magistrate has been appealed against by the defendant/appellants herein. A cursory look at the Notice of Appeal filed on the 9/6/2022, clearly the issue of capacity or that ruling is not under attack and does not form the basis of the instant interlocutory appeal and therefore, I hold the view that the industry displayed by the learned counsel for defendants in that regard is not factual, but misleading. In that regard ground (a) of Appeal fails. Other Grounds of Appeal. I intend to consider grounds ‘b, c, d, e, f’ together. These grands of appeal are the known consideration a court mostly rely in grant of interlocutory injunction. Though counsel for defendants indicated to file additional grounds of appeal, he filed none. Interim injunction reliefs are equitable in nature and a discretionary power of the Judge to make and exercise based on the available facts put before the court. Since it is an equitable remedy, the remit of the court at all times in the grant of interlocutory injunctions is to do what is just and convenient after assessment of the facts. Order 25 r 1 of the High Court Civil Procedure Rules C I 47, a court may grant an injunction by an interlocutory or in all cases in which it appears to be just and convenient and may be made unconditionally or upon such terms and conditions as the court considers just to grant. The equivalent provision in the District Court Rules C I 59 of 2009 under which the trial lower court’s jurisdiction was invoked is found in Order 13 r 1 which makes specific provision for interlocutory injunction, interim preservation of property. In all the known judicial pronouncements on the subject under consideration, the following points stand clear; That, the applicant must show a prima facia case that he is entitled to the right which he claims is being violated. That is, to demonstrate there are substantial issues to be tried at the hearing of the case etc. Then also the applicant must show reasonably fair and strong prima facie case in support of the application, for instance hardship etc, without which the applicant is not likely to succeed. The view held by the trial Magistrate in the ruling under attack, where he expressed that the applicant need not demonstrate a prima facie case for consideration is rather erroneous. Prove of prima facie at interlocutory application does not mean that the applicant, must prove he will by all means succeed at the trial but his case must demonstrate strong and compelling reason to entitled him to the grant. The term prima facie, a Latin express, (at first sight) suggest in law to denote that, upon initial examination, a legal claim has sufficient evidence to proceed to trial or judgment. In the instant case the strong and compelling reason was the fact that the plaintiffs were and have been on the land for years and defendants who are just entering will disturb their business before the determination of the merit of the rights of the parties. I hold the view that an applicant must show a prima facie case, it is the court which determine the balance of convenience based on the totality of affidavit evidence whether it is compelling, fair, and convenient and just to grant interim injunction. Secondly, the applicant must show that an injunction is necessary until the hearing in order to protect him against injury which could not be remedied or atoned for by payment of damages should the case be ultimately decided in his favour. Thirdly, Applicant must show also that the balance of convince which he would suffer if the injunction was refused would be greater than that which the defendants would suffer if it was granted. In the American Cyanamaid Co. Ltd v. Elticon Ltd. 1979 1 ALR 504; the court clearly highlighted the main criteria for the grant of interlocutory injunctions as follows: 1. That there must be serious question to be tried (prima facia) 2. That if the plaintiff were to succeed at the trial would he be adequately compensated by way of damages. and 3. If the defendants were to succeed at the trial would he be adequately compensated in damages for injury he suffered by the award of the injunction. Therefore, once it appears to the court that it be just and convenient to grant an interim injunction, the above guidelines must guide its discretionary determination of the matter. The serious question referred to in the above decided case is the prima facie case which must be made out by the applicant. Balance of convenience cannot be reached in vacuum. From the facts before the trial lower court, the parties have exhibited documents to show they have been duly registered to carry on trade/business as transport operators in the Ho Municipality. It is the case of the plaintiffs that, the portion of the lorry park allocated to the defendant will generate unhealthy competition. By taking away their patronage reducing their fortune and therefore should not be allowed to operate their business at the same lorry park. They made a point however that they have enjoyed exclusive use of the place for a long time. These and many other reliefs including defamation of character are before the lower court for determination. The defendants also claim to be registered under the law to operate as transport owners which is disputed by the plaintiffs. From the record as can be gleaned, the defendants have also alleged they have been permitted by the Ho Municipal Assembly to operate at the same vicinity and upon their arrival, sparked this contentious litigation. The trial Magistrate of pages 5 & 7 of the record of appeal, in the concluding part of his pronouncements on the ruling under attack stated as follows; “What one will justifiably glean from the defendants affidavit in opposition is that it was when they the defendants attempted to exercise their right as transport operators at the Ho Main Lorry Station that they were met with stiff opposition by the plaintiffs. And that plaintiffs have been the only party occupying the Lorry Station before the acquisition of their right to operate transport at the lorry station. Since both parties are keen in securing their economic interest which an award of damages will not be adequate should they be successful at the end of the trial, I am of the considered opinion that the plaintiffs are likely to suffer an irreparable damage than the defendant should the instant application be denied. As the plaintiffs have for some considerable number of years been enjoying exclusive right to the lorry station, at least between the plaintiffs and defendants. Accordingly, I hereby grant the plaintiffs application under the condition that they sign an undertaking that, should their action fail, they shall jointly pay damages, GH¢3,000.00 to the defendants”. 1. The germane question to pose therefore is, did the lower court exercise its discretionary powers judiciously per the Ruling of 23/02/2022? Where a person is vested with a discretionary power, the Constitution enjoins that, firstly the discretionary power shall be deemed to imply a duty to be fair and candid, and secondly, the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due proses of law. In learning, under the rules it is mandatory for a court to require undertaking for damages before granting an interlocutory injunction where one party opposes the application. The purpose of this is to provide a means of recovering the losses if any suffered by one who opposes it. From the ruling, the learned trial Magistrate himself has observed that, both parties are keen in securing their economic interest which an award of damages will not be adequate should, they be successful at the end of the trial. By His findings he presuppose that he is aware of the huge income the transport owners make in business. Therefore the order for undertaking made in the sun of GHC3, 000.00 is poor discretion in the circumstance of this case. The question which should have engaged the thought of the trial Magistrate should be what will amount to adequate compensation in the circumstance of this case, as espoused in the case of Americam Cyanamaid Co. Ltd case (supra). Having carefully and thoroughly examined the record of appeal and cases of the parties, the sun of GHC3,000.00 is woefully inadequate to compensate the defendants should they be successful at the trial taking into consideration the business time, financial lost when they were prevented by the plaintiffs. The circumstances under which an appellate court would interfere with findings of fact made by a trial court has been clearly stated in many judicial pronouncements one of which is the case of; AMOAKO V. LOKKO & ALFRED QUATEY (2011) SCGLR, also reported in (2011) GMJ 50 SC, where it was held that the appellate court can only interfere with the findings of the trial court if they are wrong because; The court had taken into account matters which were irrelevant. The court has come to a conclusion which no court properly instructing itself would have reached. The court’s findings were not proper inferences drawn from the facts. Taking learning from the above decisions, and having review the record of appeal, I hold the fair view that the discretion to restraining was based upon facts put before the court which I do not wish to interfere with, besides counsel for appellant did not demonstrate that the decision is not justified by any law. In my view, the discretion was to maintain the status quo to prevent mayhem. I would however think that, the trial Magistrate having found from facts and acquainted himself with the nature of the parties business fortunes, and so captured same in his decision, that adequate compensation will be hard to meet considering the nature of the business of the parties; I hold the view that, his discretion to peg the condition of undertaking in damages at GHC3, 000,000 was poorly exercised and not judiciously made. Flowing from the above reasoning therefore, this court will affirm the ruling dated the 23/02/2022, in part that the status quo be maintained pending the outcome of the trial. I however vary the condition of undertaking and order that the plaintiffs undertake to pay adequate compensation in damages to the defendants in the sum of Fifty Thousand Ghana Cedis (GHC50, 000. 00) should the defendants succeed at the trial. The Appeal succeeds in part and there will be no order as to cost. CHARITY A. ASEM (MRS.) (JUSTICE OF THE HIGH COURT) (SGD.) LEGAL REPRESENTATIVE GODWIN KPOBLE FOR THE DEFENDANTS/APPELLANTS – PRESENT. EMILE ATSU AGBAKPE FOR THE PLAINTIFFS/RESPONDENTS – PRESENT. 11