GHANA PRIVATE ROAD TRANSPORT UNION OF THE TRADES UNION CONGRESS vs. DANFUL AND OTHERS [1995-96] 1 GLR 20

CASES REFERRED TO:

(1) Saunders v Smith (1838) 3 My & Cr 711; 7 LJCh 227; 40 ER 1100.

(2) Woodford v Smith [1970] 1 WLR 806; [1970] 1 All ER 1091; 114 SJ 245.

(3) Manchester Corporation v Connolly [1970] 1 Ch 420; [1970] 2 WLR 746; [1970] 1 All ER 961, CA.

NATURE OF PROCEEDINGS

APPLICATION by the defendant-applicants, the GPRTU, for an interlocutory injunction to restrain the plaintiff-respondents from holding office as executives of the Kaneshie-Cape Coast-Takoradi branch of the GPRTU of TUC since the plaintiffs’ term of office had expired. The facts are sufficiently stated in the ruling.

COUNSEL

Nutifafa Kuenyehia (with him Benson Nutsukpui and Kludze) for the defendant-applicants.

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William Addo for Peter Ala Adjetey for the plaintiff-respondents.

JUDGMENT OF GBADEGBE J.

On 26 March 1993, the plaintiffs who at the time of the issue of the writ herein were the elected executives of the Kaneshie-Cape Coast-Takoradi branch of the Ghana Private Road Transport Union (GPRTU) of the Trades Union Congress (TUC) commenced the instant action claiming:

“(1) An order for injunction restraining the defendants, their agents, servants, or workmen or any other body acting for and on behalf of the defendants from interfering with the administration, management and work of the Kaneshie-Cape Coast-Takoradi branch of the GPRTU of TUC (Ghana) without due recourse to law and the constitution of the union:

(2) A declaration that the purported imposition of an interim management committee (IMC) by the defendants to conduct the affairs of the plaintiffs is unlawful.”

Following the service of the said writ and statement of claim on the defendants, they entered an appearance and filed in due course a defence to the action in which they counterclaimed as follows: “Wherefore the defendants counterclaim for a declaration that the plaintiffs’ four-year term of office have come to an end having been elected to office on 19 February 1989.”

The said defence was filed on 23 October 1995. Since then pleadings have closed in the matter and the action has proceeded to a hearing, with the reception of evidence. In the course of the hearing, the defendants caused an application to be filed seeking an order of interim injunction restraining the plaintiffs “from acting as officers or holding themselves as officers and administering the affairs of the Kaneshie-Cape Coast-Takoradi branch of the GPRTU of TUC during the pendency of the instant suit.”

Before proceeding to consider the instant application, I wish to observe that having regard to the nature of the relief sought, the application seeks an order of interlocutory injunction since the order is to last until the final determination. An interim injunction however is an order which lasts until a specified date or the occurrence of a specified event. This being the case, in the exercise of the power

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conferred on this court under Order 28, r 12 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) I hereby amend the error in the proceeding before me to read: “interlocutory injunction” instead of “interim injunction.” I think that before me the arguments were proceeded with on the basis that the order is to last until the final determination, hence this amendment fairly reflects the understanding which the parties have of the application.

Certain facts are not in dispute in this application. It is not disputed that the plaintiffs’ term of office expired in September 1993. It is further not denied that the Kaneshie-Cape Coast-Takoradi branch of the GPRTU is a member of the defendants’ association, the GPRTU of the TUC of Ghana. It is also not in dispute that the said defendant-organisation is run according to a constitution, the current one being exhibit A, a document which is entitled “Ghana Private Road Transport Union of the TUC Constitution, Rules and Bye Laws.”

Arguing the application, learned counsel for the applicants said that as at now the plaintiffs’ term has expired but they are still in office and have been dismissing a section of the members of the union who have levelled allegations against them. It is further said that the plaintiffs though officers of a branch of the defendant-association, have been conducting themselves in a manner which does not acknowledge the parent body and that if this situation is not restrained, it will undermine the authority of the union and serve as a precedent to other branches.

In opposing the application, learned counsel for the respondents conceded that some members of the union have been dismissed for not availing themselves of the laid down procedure in making complaints. It was also contended that the instant application is incompetent in that no urgency has been shown to exist and that if granted greater hardship would be occasioned the respondents, ie the plaintiffs herein. Consequently, learned counsel for the respondents urged me to dismiss the application as incompetent.

The court’s power to grant interlocutory injunctions is provided for in Order 50, r 7 of LN 140A as follows:

“7. (1) The Court may grant a mandamus or an injunction or appoint a receiver by an interlocutory

order in all cases to which it appears to the Court to be just or convenient so to do.

(2) Any such order may be made either conditionally or on such terms or conditions as the Court thinks just.”

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In my view, in the exercise of this power, the court must act in a manner which accords with justice. In Halsbury’s Laws of England (4th ed), Vol 24, para 919 at p 519, the learned authors commenting on a similar provision in England said of the words “just” and “convenient” in a manner which I accept as correct to the following effect:

“They do not mean that the court can grant an injunction simply because it thinks it convenient, but mean that it should grant an injunction for the protection of rights or the prevention of injury according to legal principles.”

It is established that an applicant who seeks an order of interlocutory injunction in aid of an alleged right should show that the case is clearly made out and free from objection on equitable grounds, such as to enable the court to interfere without having to wait for a determination of the alleged right. In the case of Saunders v Smith (1838) 7 LJCH 227 at 233, the court said:

“This Court does not exercise its jurisdiction for the purpose of acting upon legal right, but interposes for the purpose of better enforcing legal rights, or for the purpose of preventing mischief, until the time shall arrive in which those legal rights may be ascertained. In all questions of injunction in aid of legal rights, . . . the only question the Court has to consider is, whether the case be so clear and so free from objection upon the grounds of equitable considerations, that the Court ought to interfere by way of injunction . . .”

It is submitted that every application should be considered having regard to the circumstances and that it is impossible to lay down any set of rules which may serve as a guide to the court in the exercise of its discretion.

Having said earlier on that there is no dispute as to the fact that the respondents’ term of office expired as far back as September 1993 and that consequently their continued stay in office is contrary to the agreement under which the association is conducted, ie exhibit A, I am of the view that the justice of the matter requires that the respondents be restrained as sought for in this application. I also think that it is convenient as well that the order sought be acceded to. As things stand

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now, I have no doubt that the continued exercise of the functions of offices by the plaintiffs is a wrongful act. Being wrongful, I do not think that to be restrained would result in any inconvenience or hardship to them. They as members of the defendant-organisation together with others have chosen to be guided in the conduct of their affairs by a contractual document, exhibit A, and as such they cannot be heard legitimately complaining to cease exercising the functions of their office more than two years after, to their own knowledge, their term has expired. I also venture to say that since the right on which the application is based is clearly established; the balance of convenience is irrelevant. Even if it were relevant I think that where a breach of a contractual right is established, as in this case, the convenience is that the breach should be stopped.

Before coming to this conclusion, I have considered whether or not it is competent for a court on an interlocutory application to grant what is substantially the whole relief sought by a party to the action, and have come to the view that it could be done in appropriate cases. In the case of Woodford v Smith [1970] 1 All ER 1091 at 1093 Megarry J when faced with a similar problem observed: “I do not think that there is anything to prevent the court in a proper case from granting on motion substantially all the relief claimed in the action.”

Again in Manchester Corporation v Connolly [1970] 1 All ER 961at 965, CA Diplock LJ said: “The question argued on the appeal . . . was whether it was permissible to grant interlocutory relief which gave substantially the whole of the relief claimed in the action. It was held that in a case where it was plain that there was no defence, it was permissible so to do.”

Consequently, I propose to make an order which bears out the above statements of the law which I accept as correct and I accede to the application before me. In particular, I make an order restraining the plaintiffs from acting as officers or holding themselves out as officers of the Kaneshie-Cape Coast-Takoradi branch of the GPRTU and/or administering the affairs of the said branch until further or other order.

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This order is to be of effect until the final determination of the action herein.

DECISION

Application allowed.