WHAT IS AN INJUNCTION?
An injunction is a legal order that restrains a person or entity from doing something or compels them to do something. In Ghana, injunction applications are common in civil cases, especially in land disputes. The High Court has the power to grant an injunction by an interlocutory order in any case where the court finds it just or convenient to do so, according to Order 25 of the High Court (Civil Procedure) Rules, 2004, CI 47. An injunction application can be made at any stage of a trial before a court, be it at the start of the trial or during its pendency. Additionally, an injunction it can be made ex parte or on notice. An ex parte application is made without notice to the other party, and a grant made pursuant to this application can only last for ten days unless extended by the court. An application on notice is made with notice to the other party, and it can last until the final determination of the case. As was stated by Twumasi J. in Mensah v. Moro (1981) GLR728 at 732
“In every litigation, there is an inevitable lapse of time between the commencement of the action and the trial, however efficient and expeditious the judicial machinery may be. A person who is causing injury to property, which is the subject matter of the action, would naturally, if not prevented, take advantage of the lapse of time to continue the injury. It was for the purpose of averting such injury that equity assumed the power to grant interim injunctions the purpose of which was and still is to preserve the status quo ante litem … Although its purpose is laudable, yet the courts do not grant an interim injunction to an applicant just for the asking. Nor do the courts act arbitrarily. On the contrary, our courts have, over the years, evolved very articulate rules and principles for their guidance and true to the dynamic and flexible character of the common law tradition, these rules and principles have and continue to undergo a process of metamorphosis.
TYPES OF INJUNCTIONS
Although injunctions are typically understood as being orders to compel a party to stop a particular course of action or prevent them from taking said action in the first place, they may be used for other purposes as well. This is because there are different types of injunctions. These include the Mandatory Injuncto reversect, typically to reverse or correct a wrong act previously carried out by the same party, the Anton Piller injunction, which allows the party to whom it is granted to search property belonging to the party against whom it is granted and is typically granted with the Mareva Injunction which orders the freezing of assets to prevent the other party from dealing with them and the Quia timet Injunction which prohibits a course of action (and is often referred to as a Prohibitory Injunction) Ghanaian jurisprudence does not emphasize the different names or titles given to these types of injunctions. Thus, a judge will not say, “I hereby grant an Anton Piller injunction against the Respondent.” Instead, judges make specific orders with the directions or prohibitions to be undertaken by the parties contained in the order.
TIME PERIODS FOR AN INJUNCTION
Injunctions are also categorized based on the length of time for which they operate. Injunctions may be interim, interlocutory, or perpetual. An interim injunction lasts for a specific period, typically ten days in the Ghanaian Jurisdiction, subject to any further extensions by the granting court. An interlocutory injunction is granted during the pendency of a court matter and lasts until final judgment is given.[1] The perpetual injunction is granted without a time limit and is typically granted at the end of the matter in the final judgment.
BASIS FOR GRANTING INJUNCTIONS
Order 25 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) provides a valuable starting point for the basis of granting injunctions in Ghana. Order 25, Rule 1, provides that a judge may grant an injunction where they deem it to be “just or convenient to do so.” As stated by Twumasi J., case law has provided some guidance on the means of determining what is “just and convenient.” Very briefly, these are the establishment of a prima facie case,[2] the proof of a legal or equitable interest by the applicant,[3] the balance of hardship or convenience,[4] and the fact that damages would not sufficiently compensate the injured party should the application be refused.[5] A fundamental feature of the injunction as well is that being an equitable remedy, the rules and maxims of equity will also apply.[6]
THE EFFECT OF THE SERVICE OF A NOTICE OF THE FILING OF AN INJUNCTION ON A PARTY AGAINST WHOM IT IS FILED
The effect of the service of a notice of the filing of an injunction on the person against whom it is filed before the hearing of the matter has been frequently debated and been subjected to varying interpretations within the legal fraternity. Such debates have long existed but have come to the forefront of public discourse as a result of recent matters involving the Electoral Commission and the Ghana Police Service of the Republic of Ghana. The aforementioned parties have been subjects of two separate injunction applications in September of 2023.
On the 7th day of September 2023, five registered political parties filed an injunction before the Supreme Court against the Electoral Commission to prohibit the Limited Voter Registration Exercise commencing on the 12th day of September 2023.[7] Despite having been validly served with the injunction, the Electoral Commission chose to proceed with the registration as planned. On the other hand, however, is the Ghana Police Service. The Ghana Police Service, in a bid to prevent a planned demonstration by a section of the public that they deemed to be unlawful, filed an injunction a day before the scheduled date of the protest and purported to serve same on the conveners of the protest. As a result of the failure of the conveners to comply with the alleged injunction, the police proceeded to arrest the protesters and subsequently detained them in police cells for varying periods, some for over 13 hours.[8]
In the foregoing instance the matter of the effect of the service of an injunction on a party against whom it is filed has been brought to the fore of legal discourse.
On one side is the argument which posits that mere service of notice of an injunction applu7ication, should be of no effect. This argument is based on the logic that the service of a writ does not compel the defendant to comply with the reliefs on the writ. Thus, for example, the filing of a divorce petition does not allow either party to commence sexual relations with another person. That would still be adultery. Additionally, a validly served writ claiming ownership of land does not automatically mean the occupying party must vacate the premises until judgment is made. The filing of a custody petition does not oblige the Respondent to transfer custody of the child to the Petitioner. The logic of these examples is obvious- that a defendant party is not required to immediately comply with the prayers of the plaintiff until judgment is obtained.
The other side of this argument, supported by judicial authority, holds that the valid service of an injunction on the party against whom it is served is essentially effective as a stay on whatever conduct is being injuncted against. Thus, an injunction against a party building on the contested property is, by itself, a stay against further construction until the judge dismisses the injunction. The logic of this argument is drawn from the contempt principles of overreaching.
CONTEMPT
As a result of the Presidential election petitions of 2012 and 2020 before the Supreme Court, most lay people understand contempt as occurring when a person makes unsavoury comments about a judge. Others understand it as occurring when a person makes statements about a pending court case. Other types of contempt do exist, however, since contempt of court can broadly be explained to be any conduct that has the effect of bringing the administration of justice into disrepute. As was stated by Bamford-Addo JSC in Republic v. Mensa-Bonsu and others [1994 – 95] GBR 131 – 281 SC,
“Therefore, for the fair and proper administration of justice it is of the utmost importance that the sanctity and integrity of the court and its judges are preserved to enable them to perform their constitutional and judicial functions peacefully, fairly, impartially and independently free from any undue interference from any quarter. This is the reason why the courts are given power to commit for contempt, that is to punish any acts which tend to interfere with the proper administration of justice, or which “scandalises” the courts, by eroding public confidence in them or by weakening and impairing their authority.”
OVERREACHING AS A FORM OF CONTEMPT
Thus, any conduct that has the effect of unduly interfering with the fair and proper administration of justice may be deemed to be contemptuous. Overreaching as a form of contempt occurs when a party to an action deliberately conducts themselves in a manner that has the effect of limiting the effect of whatever judgment is to be given or has the effect of extinguishing whatever rights would have accrued to the victorious party at the end of the judgment.
Contempt by way of overreaching, although uncommon, has received some judicial pronouncements from the courts. A case in point is the dictum of Okunor J in the case of Republic v. Jehu Appiah and Ors. Ex-parte Forson (1981) GLR 398 where, in considering an application for contempt, the judge stated:
“…the test for contempt was not confined to cases where the conduct of the respondents did prevent the court from inquiring into specific matters raised in the pleadings in the suit before it. It was still contempt even when the court could go into the matter but the end product of the exercise of that jurisdiction would be marred by some act of interference done during the pendency of the action. The expression “jurisdiction” was not confined to physical inability of the court to inquire into the matter before it; it extended to the effect of its orders or judgment on the parties litigant and beyond.” (Emphasis is mine)
Additionally, in the case of Republic v. Prof. Nii Otu Nartey Ex-Parte Peter Waka And 36 Others (2011) JELR 69876 (HC), Assuman-Adu stated thus:
“Civil contempt is that quasi-contempt consisting in failure to do something which the party was ordered by the court to do for the benefit or advantage of another party to pending proceedings; while criminal contempt is the act done in respect of the court or its process or which obstructs the administration of justice or tend to bring the court into disrespect.
So, any act or conduct that tends to interfere with the administration of justice may constitute contempt of court. Once an application is pending and parties are made aware of the pendency of the said application, any conduct on the part of the respondents that is likely to prejudice a fair hearing of the application is tantamount to contempt of court.” (Emphasis is mine)
CONTEMPT AND INJUNCTIONS
This above-discussed logic is consequently applied to injunction applications. Thus, the earlier construction would constitute contempt because the applicant for the injunction would be saddled with an unwanted edifice on their property., should the court declare title in their favour. Who then is to be liable for the expense of demolition of the structure on the land? Imagine the reverse, where the guilty party was instead threatening to demolish the property of the applicant. Still proceeding to destroy the property merely because the injunction has not been heard would most likely make the judgment moot.
The courts have additionally made specific pronouncements on this form of contempt. In finding the Respondents liable for contempt for ignoring an injunction application in the case of Republic v. Moffat and Others; Ex Parte Allotey [1971] 2 GLR 391-403, Abban J stated thus at p. 399:
“I would be laying down a very dangerous precedent if I were to hold that a party, when served with application for an order of prohibition from the High Court, can disregard or ignore the said application and treat the court with contempt, if he believes that the said application is misconceived.”
Even more compelling is the recent Supreme Court case of The Republic v. Bank of Ghana, The Governor (Bank of Ghana) And 4 Ors. Ex-Parte: Benjamin Duffour (2018) JELR 68876 (SC) where Baffoe-Bonnie JSC discussed the existence of such contempt when an action is pending before a court. In doing so, he stated:
“The respondents in their statement of case aver that not a single one of the Respondents herein have engaged in any act(s) which have the effect of bringing the administration of justice into disrepute and or scandalizing the Court. They further state that for an act to constitute contempt it has to be a willful disobedience of an order of a court. True as their contention may be, we believe the respondents miss a very important aspect of contempt of court. They fail to consider the fact that contempt of court may arise where a party knowing that a case is sub judice, engages in an act or omission which tends to prejudice or interfere with the fair trial of the case despite the absence of an order of the court.
…. When a court is seized with jurisdiction to hear a matter, nothing should be done to usurp the judicial power that has been vested in the court by the Constitution of Ghana. In effect, the state of affairs before the court was seized with the matter must be preserved until the court delivers its judgment. This is so whether or not the court has granted an order to preserve the status quo or not. A party to the proceedings will be in contempt if he engages in an act, subsequent to the filing of the case, which will have the effect of interfering with the fair trial of the case or undermine the administration of justice. The conduct must be one which has the effect of prejudging or prejudicing the case even before a judgment is given.” (Emphasis is mine)
The application of these rules does, however, raise certain concerns which are based on practicality. It is humbly submitted that the presence of these rules, as they are, leaves room for abuse of the law by parties. For example, a party who merely does not wish an event to happen or intends to stall the occurrence of an event may file and serve a frivolous injunction application just hours before the occurrence of the said event. Should the service of the notice be successful, the party against whom it is served will be in contempt if they proceed to act. This is exacerbated when one considers the holding of the court in Ex Parte Allottey that even where a party is not served with the notice but it can be shown that they knew or should have known of the pendency of same, they will still be liable for contempt of court.
Even more frustrating is the fact that the disbelief of the party on whom the injunction is served in its merit is no defense to refusing to comply with its terms. This point is better put across by F.G Korbieh JA in the case of The Republic v. Alhaji Tudjani Ex-Parte: Kasseke Akoto Dugbartey Sappor And 2 Others (2014) JELR 67921 (CA) where the learned Justice stated thus:
“…In any case it is no defence to a charge of contempt for the respondent to say that because he believed in the legitimacy of his claim to the property in dispute his actions on the property were legally justifiable. The issue of the legitimacy of any person’s claim to property that is the subject matter of litigation before a court is a matter of law for the court to decide. So (sic) matter how well founded the person thinks his belief may be, he cannot decide the issue otherwise he would be usurping the legitimate power of the court. That alone amounts to contempt of court since it interferes with the court’s duty to adjudicate the matter without interference from either party or anyone else.”
And so, even where, for example, a party reasonably believes that the injunction will be dismissed because the applicant does not have a right to the subject matter or the applicant has not conducted themselves equitably, the respondent is still estopped from proceeding.
This remains true regardless of the expenses incurred by the Respondent in preparation for the event. Thus, where the conduct to be injuncted against is a ceremony, for example, the finale of a competition, there would no doubt be extensive and time-sensitive expenses that the Respondent would have incurred. What if it is a ticketed event? Then, the Respondent would be stuck with costs already incurred and the cost of refunds, not to mention the damage to their reputation. The position of the law will still apply regardless. One might respond to this using the oft-quoted dictum of Lord Mansfield in the English case of Somerset v. Stewart (1772) 98 ER 499 that “Let Justice be done, though the heavens may fall.” But it is humbly submitted that a frivolous application to injunct the occurrence of an expensive event that is served a day or hours before the event rather occasions the greater injustice to the Respondent party.
The strict application of the rule also becomes problematic when one considers events of a public nature. This is a fairly common occurrence in public elections. One party is dissatisfied with the conditions leading up to the election or a condition on the day of the election and applies to injunct the entire election. What about an application to injunct a person from being sworn into office, as was the case in Ex Parte Allotey? As was held in the case, the injunction is binding regardless, provided it has been validly filed and served.
Even more pertinent is where the injunction application relates to the enjoyment of fundamental human rights by citizens. This is best evidenced in the recent matter involving the Ghana Police Service and the #OccupyJulorbiHouse protesters. Despite being served with the notice of intention to hold a planned peaceful demonstration pursuant to Section 1 of the Public Order Act, 1994 (Act 491) a month in advance, the police service, whether maliciously or otherwise, waited until a day before the scheduled protest to file and attempt to serve the injunction application against the protest. The right to demonstrate and protest is strongly guarded by Article 21 of the 1992 Constitution and has received judicial blessing in the classicus Supreme Court case of New Patriotic Party v. Inspector-General of Police [1993-94] 2 GLR 459—509. It is humbly submitted that these rules and principles regarding the effects of filing and serving an injunction application, as they exist, create room for undue fetters on the rights of citizens.
POSSIBLE REMEDIES
Presently, besides making orders as to payment of costs to the opposing party, there exists no real consequence on a person who maliciously files an injunction application. This is undesirable since the entire point of an injunction application is to protect the applicant from a circumstance that money cannot or will not be adequate to compensate them for the losses or damage that will be incurred or suffered.
It is accordingly humbly submitted that attempts must be made at resolving the different issues that come out of the application of the contempt rules over injunction applications. The solutions or principles to be applied must necessarily take cognisance of the peculiar nature of the problem. It should be stated that remedying the problems enumerated above will most likely go beyond judicial determinations. The Police Service issue with regard to timing of the filing of an injunction application following receipt of notice of a planned demonstration for example can best be resolved by amending the Public Order Act to be more time-sensitive regarding when an application to prevent an event from occurring may be brought.
As a starting point, a distinction should be drawn between ongoing acts and short-term events. A maliciously filed injunction is of greater consequence to the latter than the former. Thus, there should be more stringent consequences for parties who intentionally file malicious injunction processes of this kind before courts. Where it can be assessed from the circumstances by the courts that the injunction was frivolous and was filed maliciously at a time when the respondent would have no other choice than to call off the event, the innocent party or the court suo motu should be able to commence contempt proceedings against the applicant.
Additionally, administrative review of the process for hearing injunction processes relating to public interest matters should be considered. This would inevitably require a determination of what amounts to the public interest. Such an administrative procedure would best be developed by the Rules of Court Committee and imbued into the Rules of Court.
CONCLUSION
In conclusion, an injunction is an order of the court made to a party to either prohibit them or compel them to take an action with the aim of maintaining the status quo between the parties. The current position of the law is that a party who is served with a notice of an injunction is essentially estopped from engaging in the conduct against which he is injuncted. This position of the law in its application on occasion produces results that rewards parties who seek to abuse the judicial process. It is important that its application should be balanced in order to protect the sanctity of the justice system, especially from those who seek to abuse its processes for their own gain.
[1] See the dictum of Ayebi JA in Serwaa & Anor. v. Dwomoh & 4 Ors. [2015] 86 GMJ 95 at 120
[2] See Adjei Acheampong v. Donkor [1980] GLR 108
[3] See Owusu v. Owusu Ansah & Anor. [2007-2008] SCGLR 870
[4] Bonsie v. Boateng [2012] 52 GMJ 206 @ 211, C.A
[5] See Montero v. Redco [1984-86] 1 GLR 711, C.A and the Musicians Union of Ghana v. Abraham and Another [1982-83] 337-345
[6] Dede II v. Ansah and Others [1980] GLR 746-751
[7] Daniel Kenu, ‘EC begins limited voter registration today – Despite court injunction’ Graphic Online (Accra, 12 September 2023) <https://www.graphic.com.gh/news/general-news/ec-begins-limited-voter-registration-today-despite-court-injunction.html>
[8] Kent Mensah, ‘Ghana police arrest 49 as high cost of living triggers street protests’ Aljazeera (Doha, 22 September 2023) <https://www.aljazeera.com/features/2023/9/22/ghana-police-arrest-49-as-high-cost-of-living-triggers-street-protests>
BY; KEKELI DZEKETEY EKQ.
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