HIGH COURT, SEKONDI
Date: 25 MARCH 1975
EDUSEI J
NATURE OF PROCEEDINGS
PRELIMINARY OBJECTION to a claim for interim injunction endorsed on a writ of summons for damages for trespass to land. The facts are sufficiently set out in the ruling.
COUNSEL
K. E. Amua Sekyi for the plaintiff.
James Mercer for the defendant.
JUDGMENT OF EDUSEI J
The plaintiff by his writ of summons as head of the Twidan family of Agona claims:
“(a) damages for wrongfully entering the plaintiff’s ancestral land commonly known and called Akaagyinakrom and felling oil palm trees growing thereon;
(b) an injunction restraining the defendants, their servants and agents from entering the said land until the final determination of this suit.”
Mr. Mercer, counsel for defendants, has raised the preliminary point that claim (b) which is in the nature of an interlocutory or interim injunction cannot be endorsed on a writ of summons and it should therefore be struck out in limine. He buttressed his argument by saying that in the
[p.143] of [1975] 2 GLR 142
ordinary course of procedure an application for interim injunction can only be applied for after the issue of the writ of summons and he referred the court to Order 50, rr. 7 and 8 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). A fortiori a claim for an interim or interlocutory injunction cannot be a relief to be endorsed on a writ of summons, so Mr. Mercer contended.
Mr. Amua Sekyi, counsel for plaintiff, has argued the contrary. He stated that the nature of the claim made should always be endorsed on the writ of summons and he referred the court to Order 2, r. 1 of the High Court (Civil Procedure) Rules, 1954, which provides:
“Every action in the Supreme Court shall be commenced by a writ of summons, which shall be indorsed with a statement of the nature of the claim made, or of the relief or remedy required in the action . . . “
He further contended that by Order 3, r. 3 of the High Court (Civil Procedure) Rules, 1954, guidance as to the endorsement on the writ is provided in Appendix A, Part 6. There it is stated that a claim for an injunction to restrain the defendants from doing certain things may be endorsed on the writ of summons, and Mr. Amua Sekyi therefore contends that this is what he has done in claim (b) on his writ of summons.
This is a knotty point that has exercised my mind for some time. I do not suppose there should be any difficulty if the claim on the writ was for “perpetual injunction” which is invariably joined to a claim for trespass. A claim for mandatory injunction, for instance, by directing that a building be pulled down and removed may also be endorsed on a writ of summons. In such two claims for injunction the rights of the parties will be determined after the trial. But in the instant claim for interim injunction it only preserves matters in status quo until the case is tried. I must confess that this is the first time that I have seen a claim for interim injunction endorsed on a writ in the High Court.
However, in Halsbury’s Laws of England (3rd ed.), Vol. 21, pp. 343-344, para. 716 the following passage appears:
“It [interlocutory injunction] does not assume finally to dispose of the right, and will only impose such restraint as may suffice to stop the mischief complained of, or, where the object is to stay further injury, to keep things as they are at the moment. Such an injunction is in effect a substitute for the damages which might be assessed for the period between the issuing of the writ and the trial; and so a claim for such an injunction may be joined with a claim for the possession of land. .
(The emphasis is mine.) The plaintiff s claim (a) is for damages for trespass and not a claim for possession. And since claim (b) as stated in Halsbury’s Laws of England and quoted above is a substitute for damages for a certain specified period of time, I do not see my way clear in awarding general damages for the two claims endorsed on the writ in respect of the
[p.144] of [1975] 2 GLR 142
same subject-matter, if the plaintiff succeeds. It is for this reason that I strike out claim (b) on the writ. But this does not prevent the plaintiff from coming by way of a motion for an order for interim injunction to preserve the status quo until the rights of the parties are finally determined. Of course such an application will be considered on its merits.
Since this is a novel point Mr. Mercer thinks that no costs be awarded in favour of his client and I agree.
DECISION
Order as above.
Endorsement struck out accordingly.
K. S. N. -D.
