Interlocutory injunctions in Ghana case law.

It has been held in a plethora of cases that, where the grant of the final declaratory relief will nullify the act complained about, the grant of an order of interlocutory injunction is inappropriate regardless of the intermediate steps that may have been undertaken during the pendency of substantive proceedings.

VINCENT EKOW ASSAFUAH (PLAINTIFF/APPLICANT) vs. THE ATTORNEY GENERAL WRIT NO: J1/18/2025 [2025] SLR (SC) 9 · Supreme Court · 2025 · TANKO AMADU JSC

Where such an act is declared null and void, the harm that the Plaintiff will be presumed to suffer if the application for injunctive relief is not granted, would be addressed by the grant of the declaratory relief. Granted therefore that, the Plaintiff had demonstrated in the instant case that, he will even suffer any kind of damage if the injunction is refused, the fact that the Plaintiff has sought declaratory reliefs in the substantive matter to nullify the very acts in respect of which he seeks the present injunctive relief, will militate against the grant of the interlocutory injunction and suspension reliefs sought.

VINCENT EKOW ASSAFUAH (PLAINTIFF/APPLICANT) vs. THE ATTORNEY GENERAL WRIT NO: J1/18/2025 [2025] SLR (SC) 9 · Supreme Court · 2025 · TANKO AMADU JSC

In my view, contextually, the caution expressed by this court in the Ex parte Duffour case should apply only to private law disputes involving contract and tort and other similar actions within the realm of private law.

HER LADYSHIP JUSTICE GERTRUDE V. THE ATTORNEY-GENERAL AND 4 ORS CIVIL MOTION NO. J8A113/2025 [2025] SLR (SC) 11 · Supreme Court · 2025 · TANKO AMADU JSC

As a court, we risk endangering the workings of the Constitution by failing to recognise that, in the sphere of public law, particularly in actions challenging the constitutionality of the conduct of public bodies or individuals, especially those entrusted with functions under the Constitution or relevant statute, the mere filing of a suit and an application for an injunction should not, in itself, automatically restrain a constitutional or statutory entity or duty bearer from discharging the lawful mandates.

HER LADYSHIP JUSTICE GERTRUDE V. THE ATTORNEY-GENERAL AND 4 ORS CIVIL MOTION NO. J8A113/2025 [2025] SLR (SC) 11 · Supreme Court · 2025 · TANKO AMADU JSC

In the premises, we find that, in cases involving the discharge of constitutionally or statutorily mandated functions by specifically designated actors, be they, statutory bodies, public offices or individuals empowered by law so to act, it would be utterly imprudent to adopt a blanket rule that mere service of an application for interlocutory injunction suffices to halt constitutional or statutory action which presumptively, would inure to the collective interest of the public. We further hold that in such cases, nothing short of an express judicial grant of an injunction would suffice to restrain a constitutional or statutory duty bearer whose actions are presumptively in line with constitutional or lawful mandates.

VINCENT EKOW ASSAFUAH (PLAINTIFF/APPLICANT) vs. THE ATTORNEY GENERAL WRIT NO: J1/18/2025 [2025] SLR (SC) 9 · Supreme Court · 2025 · TANKO AMADU JSC

The constitution in the said article 64(2) accepts the principle of continuity of the effect of discharged constitutional duties, that being the case, we are of the considered opinion that there is no jurisprudential basis for halting or suspending the operation of the constitution by the mere filing and service of an application for interlocutory injunction. On what basis should we put clutches on constitutional and public law duty bearers by the force of mere pendency of interlocutory applications. We think that a pending interlocutory injunction application is insufficient to hold the ground and suspend the performance of a constitutional or statutory duty, irrespective of the possibility of success.

VINCENT EKOW ASSAFUAH (PLAINTIFF/APPLICANT) vs. THE ATTORNEY GENERAL WRIT NO: J1/18/2025 [2025] SLR (SC) 9 · Supreme Court · 2025 · TANKO AMADU JSC

Clearly, an application for an interlocutory injunction is not a remedy that is beyond the jurisdiction of the High Court of Justice. Indeed, a High Court Judge has jurisdiction and power to entertain and determine, in one way or the other, an application for interlocutory injunction.

THE REPUBLIC vs. HIGH COURT (GENERAL JURISDICTION 8), ACCRA EX PARTE DANIEL OFORI ECOBANK GHANA LIMITED CIVIL MOTION NO: J5/93/2024 [2025] SLR (SC) 1 · Supreme Court · 2025 · ASIEDU JSC

It has always been my understanding that the requirements for the grant of interlocutory injunctions are; first, that the Applicant must establish that there is a serious question to be tried; second, that he or she would suffer irreparable damage which cannot be remedied by the award of damages, unless the interlocutory injunction is granted; and finally that the balance of convenience is in favor of granting him or her the interlocutory injunction. The balance of convenience of course means weighing up the disadvantages of granting the relief against the disadvantages of not granting the relief. Where the relief sought relates as here, to a public law matter (emphasis mine) particular care must be taken not to halt action presumptively for the public good, unless there are very cogent reasons to do so, and provided also that any subsequent nullification of the impugned act or omission cannot restore the status quo”

VINCENT EKOW ASSAFUAH (PLAINTIFF/APPLICANT) vs. THE ATTORNEY GENERAL WRIT NO: J1/18/2025 [2025] SLR (SC) 9 · Supreme Court · 2025 · TANKO AMADU JSC

Recognising the danger to injunct or suspend a constitutional duty or power pendente iite, this court has stated the dearest legal position in a plethora of decisions that, the same must be sparingly exercised with extreme circumspection unless there is a dear demonstration that, the case of an Applicant is invariably most likely to succeed for a permanent order of injunction to be made in the substantive suit. That is, there must be extreme exceptional necessity, in the interest of the state and the public at large, as a result of a dear and manifest conduct of constitutional infraction to warrant the court to grant an interlocutory injunction against the exercise of a constitutional function by no mean a person than the President in the exercise of the powers vested in him by the constitution pending the determination of a substantive matter. The WELFORD QUARCOO case makes this point loudly... Therefore, the correct jurisprudence is that the threshold to injunct the exercise of a constitutional or statutory function, duty, or discretion is not wishful thinking nor is it grounded on conjecturing political conspiracies. There must be sufficient demonstration that, the substantive action before the court is not frivolous, and must have been founded on a clear breach of the constitution or relevant statute. Of equal importance is that, the grant of the injunction pending final determination of the action will advance the public interest.

HER LADYSHIP JUSTICE GERTRUDE V. THE ATTORNEY-GENERAL AND 4 ORS CIVIL MOTION NO. J8A113/2025 [2025] SLR (SC) 11 · Supreme Court · 2025 · TANKO AMADU JSC

In such cases, a significantly higher threshold is required. The Applicant must go beyond asserting inconvenience or disagreement. They must demonstrate, with compelling clarity, the threat or existence of a gross and flagrant constitutional violation. Moreover, they must establish that, the continuation of the impugned public act would, absent judicial intervention, cause irreparable harm or hardship so substantial that it outweighs the public interest in allowing the constitutional process to continue.

HER LADYSHIP JUSTICE GERTRUDE V. THE ATTORNEY-GENERAL AND 4 ORS CIVIL MOTION NO. J8A113/2025 [2025] SLR (SC) 11 · Supreme Court · 2025 · TANKO AMADU JSC

Clearly therefore, the current position of the law is that no court, including this Court, must yield to any invitation to make any order that would have the effect of truncating, interfering or suffocating the duties of any duty bearer or any process under the 1992 Constitution by injuncting the performance of any constitutional or statutory functions or process, unless there is a clear violation of a provision of the Constitution or statute that confers power or authority on the duty bearer and only where jurisdiction is properly invoked by an applicant.

HER LADYSHIP JUSTICE GERTRUDE V. THE ATTORNEY-GENERAL AND 4 ORS CIVIL MOTION NO. J8A113/2025 [2025] SLR (SC) 11 · Supreme Court · 2025 · TANKO AMADU JSC

As I have already outlined in the introductory remarks, an applicant seeking such injunctive reliefs in matters within the realm of public law must meet a higher threshold. The applicant is required to present an exceptional case of a breach or threatened breach of a statutory provision or of the Constitution itself, the consequence of which would affect the public interest. The applicant must therefore demonstrate a violation or threatened violation of the Constitution or other statutory provisions that underpin the impugned process. In all cases, the injury or damage likely to be suffered must be of such a nature that it cannot be remedied even if the applicant ultimately succeeds in the substantive suit.

HER LADYSHIP JUSTICE GERTRUDE V. THE ATTORNEY-GENERAL AND 4 ORS CIVIL MOTION NO. J8A113/2025 [2025] SLR (SC) 11 · Supreme Court · 2025 · TANKO AMADU JSC

Consequently, whilst ordinarily, the grant or refusal of an interlocutory injunction ultimately rests in the sound discretion of the court exercised in light of specific facts and circumstances of each case, an applicant in a constitutional interpretation or enforcement action otherwise called public law suit, must sufficiently demonstrate prima facie, that not granting the order was likely to cause an irreversible prejudice or injury to him or will irredeemably jeopardize the very subject matter of the case before a final decision is rendered.

HER LADYSHIP JUSTICE GERTRUDE V. THE ATTORNEY-GENERAL AND 4 ORS CIVIL MOTION NO. J8A113/2025 [2025] SLR (SC) 11 · Supreme Court · 2025 · TANKO AMADU JSC

Recognising the danger to injunct or suspend a constitutional duty or power pendente lite, this court has stated the clearest legal position in a plethora of decisions that, the same must be sparingly exercised with extreme circumspection unless there is a clear demonstration that, the case of an Applicant is invariably most likely to succeed for a permanent order of injunction to be made in the substantive suit. That is, there must be extreme exceptional necessity, in the interest of the state and the public at large, as a result of a clear and manifest conduct of constitutional infraction to warrant the court to grant an interlocutory injunction against the exercise of a constitutional function by no mean a person than the President in the exercise of the powers vested in him by the constitution pending the determination of a substantive matter. The Welford Quarcoo case makes this point loudly.

VINCENT EKOW ASSAFUAH (PLAINTIFF/APPLICANT) vs. THE ATTORNEY GENERAL WRIT NO: J1/18/2025 [2025] SLR (SC) 9 · Supreme Court · 2025 · TANKO AMADU JSC

Therefore the correct jurisprudence is that, the threshold to injunct the exercise of a constitutional or statutory function, duty, or discretion is not wishful thinking nor is it grounded on conjecturing political conspiracies. There must be sufficient demonstration that, the substantive action before the court is not frivolous, and must have been founded on a clear breach of the constitution or relevant statute. Of equal importance is that, the grant of the injunction pending final determination of the action will advance the public interest.

VINCENT EKOW ASSAFUAH (PLAINTIFF/APPLICANT) vs. THE ATTORNEY GENERAL WRIT NO: J1/18/2025 [2025] SLR (SC) 9 · Supreme Court · 2025 · TANKO AMADU JSC

In such cases, a significantly higher threshold is required. The applicant must go beyond asserting inconvenience or disagreement. They must demonstrate, with compelling clarity, the threat or existence of a gross and flagrant constitutional violation. Moreover, they must establish that the continuation of the impugned public act would, absent judicial intervention, cause irreparable harm or hardship so substantial that it outweighs the public interest in allowing the constitutional process to continue.

VINCENT EKOW ASSAFUAH (PLAINTIFF/APPLICANT) vs. THE ATTORNEY GENERAL WRIT NO: J1/18/2025 [2025] SLR (SC) 9 · Supreme Court · 2025 · TANKO AMADU JSC

As a matter of practice, therefore, unless an applicant can prove both the obvious and egregious unconstitutionality of an action and the likelihood of irreparable damage that cannot be reversed or redressed, interim injunctive relief must be denied. Even where a serious constitutional question is raised, the absence of irreparable harm and the overriding public interest in continuity of governance will weigh heavily against preemptive judicial intervention by way of an injunction. The guiding principle, therefore, is that only a blatant, undeniable breach of the Constitution, paired with a compelling necessity to prevent irreversible harm, can justify the extraordinary measure of enjoining the executive or legislature or preemptively halting a constitutionally mandated public function.

VINCENT EKOW ASSAFUAH (PLAINTIFF/APPLICANT) vs. THE ATTORNEY GENERAL WRIT NO: J1/18/2025 [2025] SLR (SC) 9 · Supreme Court · 2025 · TANKO AMADU JSC

We are not unmindful of the fact that certain matters may require immediate injunctive relief due to their time-sensitive nature. In such exceptional constitutional cases, the Supreme Court, given its critical constitutional role, can be empaneled to hear the application immediately, without delay. The Court’s unique mandate afterall, allows it to convene at any time to address urgent matters of national significance, ensuring that constitutional order and continuity is maintained and potential irreparable harm to the constitutional order and public interest is averted.

VINCENT EKOW ASSAFUAH (PLAINTIFF/APPLICANT) vs. THE ATTORNEY GENERAL WRIT NO: J1/18/2025 [2025] SLR (SC) 9 · Supreme Court · 2025 · TANKO AMADU JSC