  
RULING  
On June 28, 2016, this Court granted the application on notice for mandatory injunction filed by the Plaintiff/Applicant (hereinafter, the “Plaintiff”) and reserved its reasons for today, which I proceed to give. 
[1] PROCEDURAL BACKGROUND 
The Plaintiff is a bank duly registered under the laws of the Republic of Ghana.  The 1st Defendant is a customer of the Plaintiff bank and has its registered office in the Greater Accra Region of the Republic of Ghana.  On 5th August, 2015, the Plaintiff 
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took out a writ of summons at the registry of this court claiming the following reliefs against the Defendants: 
i. Recovery of the sum of GH¢3,385,156.71 (Three Million, Three Hundred and Eighty-five Thousand, One Hundred and Fifty-six Ghana Cedis Seventy-one Pesewas) against the Defendants jointly and severally. ii. Interest on the said sum of GH¢3,385,156.71 (Three Million, Three Hundred and Eighty-five Thousand, One Hundred and Fifty-six Ghana Cedis Seventy-one Pesewas) from 3rd August, 2015 at the rate of 40% per annum till date of final payment against the Defendants jointly and severally. iii. An Order directed at the 1st Defendant to immediately return or re-deliver the Leased Assets to the Plaintiff by sending same to Plaintiff’s Warehouse at Adenta on the Adenta Aburi road near Geowags Limited. iv. Costs inclusive of solicitors’ fees. 
Subsequent to the issuance of this writ, the Plaintiff has brought the instant application under Order 25 of the High Court (Civil Procedure) Rules, 2004 (CI 47), for an order of mandatory injunction directed at the 1st Defendant to immediately return or to re-deliver to the Plaintiff the twenty-two (22) tractor heads and trailers it leased out to the Defendants, (hereinafter, the “Leased Assets”).  Accompanying the Application is an Affidavit and a Statement of Case filed on Plaintiff’s behalf by its Solicitor, Mr. Bannerman Williams, Jnr., of Sackodar Chambers setting out the grounds for the prayer and also urging the Court to grant the application.  The Defendants resist the grant of this application in the affidavit in opposition filed by the 3rd Defendant on their behalf on the ground that the application cannot be supported in law as it will be unfair to order the 1st Defendant to return the Leased Assets. 
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[2] ARGUMENTS OF THE PARTIES: 
Plaintiff claims that it entered into a finance lease of some twenty-two (22) tractor heads and tractor trailers with the Defendants on or about July 23, 2015, (hereinafter, the “Finance Lease”).  According to the Plaintiff, by the terms of the Finance Lease, the lease term was for six (6) months and the payment of the lease rental was to be by bullet payment.  It is the further claim of the Plaintiff that it was agreed in the Finance Lease that the Leased Assets would remain the property of the Plaintiff while the Defendant was to have no right or interest therein otherwise than as lessee.  Plaintiff alleges that as a result of the persistent default by the 1st Defendant in the repayment of the lease, the Plaintiff terminated the Finance Lease on July 8, 2015 and demanded, inter alia, the return of the Leased Assets to the Plaintiff at such place as it may appoint in good working order and condition (fair war and tear excepted), as provided for in the Finance Lease.  The Plaintiff, however, claims that the 1st Defendant has ignored all the demands made on it by the Plaintiff for the return of the said Leased Assets.  It further alleges that all efforts by the Plaintiff to trace and repossess the Leased Assets have proven futile.   
On account of the foregoing facts, Plaintiff argues that the only legal strand that connected the Defendant to the Leased Assets, the Finance Lease, has since been terminated, the Defendant has effectively been stripped of any legal basis for the wrongful continuous detention and or use of the said Leased Assets.  Plaintiff further argues that the Leased Assets are of a wasting nature, suffering increasing depreciation in their values with each passing day the 1st Defendant continues to use them. Plaintiff, therefore, contends that unless ordered by this Honourable Court, the Defendants will not return or redeliver the Leased Assets to it. 
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The Defendants oppose the grant of this application for the reasons set out below.  It is the case of the Defendant that after taking possession of the Leased Assets, the 1st Defendant realised they were not in the condition which the Plaintiff and the 1st Defendant believed they were at the time of negotiations.  Thus, the contract was entered into as a result of a mistake and/or a misrepresentation of the state of the Leased Assets.  It is the Defendants further claim that the said mistake and/or misrepresentation caused the 1st Defendant to incur unexpected expenditure, which state of affairs was communicated to the Plaintiff.  The Defendants further contend that the relationship between the parties was originally envisaged as one of outright sale and purchase agreement and its subsequent conversion into a loan by the Plaintiff Bank was done contrary to law and same is void and of no effect.  The 1st Defendant, has since, successfully secured equity partnership, partly in order to help settle its indebtedness to the Plaintiff Bank, according to the Defendants.  For the foregoing reasons, therefore, the Defendants argue that it will be unfair to order the 1st Defendant to return the Leased Assets and the application for the mandatory injunction cannot be supported in law. 
[3] ANALYSIS AND OPINION OF THE COURT: 
Order 25 r 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47) states that: 
 “[t]he court may grant an injunction by an interlocutory order in all cases in which it appears to the court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the court considers just.”  
 It is trite that an injunctive order is an equitable remedy and it lies only within the discretion of the court to decide whether or not to grant same.  Yet, the court shall 
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only grant it upon carefully considering the justness and convenience of the order requested for.   
In Halsbury’s Laws of England Vol. 24, 4th edition, paragraph 819 at page 429 it is stated that:   
“the words just and convenient in the statutory provision 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 the rights or the prevention of injury according to legal principles.  They confer neither arbitrary nor unregulated discretion on the court, and do not authorise it to invent new modes of enforcing judgments in substitution for ordinary modes.” 
In that regard, an injunctive order would only be granted where there is a legal right that can be asserted either at law or in equity, for the protection of such a right.  The Applicant must, prima facie, demonstrate, therefore, a legal right that is in danger of continuous threat if the status quo ante was or was not to be maintained.  Also, the Applicant is to demonstrate that, on the balance of convenience, irreparable damage shall be caused to him or her if that legal right was not protected for the time being.  See the case of PUNJABI BROTHERS v. NAMIH (1958) 3 WALR 381.  This further principle, in the case of FRIMPONG v. NANA ASARE OBENG II, [1974] 1 GLR 16, was proposed in the following terms, that is, the Court must also consider the  
“… hardship that would be caused if the application is granted or refused; in other words, the relative convenience or inconvenience which might result to the parties from granting or withholding an interlocutory injunction…”.   
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The basic purpose of interim injunctions is, as was discussed in the Supreme Court case of ODONKOR v. AMARTEI (1987-1988) GLR 578, to hold the balance evenly between the parties pending the final resolution, as much as is possible, of matters in difference between them, and also to ensure that the victory of the successful party is not rendered nugatory or one that brought him more problems than blessings.  In the English case of AMERICAN CYANAMID CO. LTD v. ETHICON LTD (1985) AC 396, applied by the Court of Appeal in the local case of VANDERPUYE v. NARTEY (1977) GLR 428, at 431, Lord Diplock advanced the opinion that where the court was considering the application for interim injunction while the substantive suit was still pending for determination on its merits, it was more appropriate for the court, at that stage of the litigation, to resolve the conflict between the parties on the affidavit evidence before it and refrain from making pronouncements which would pre-determine the issues for trial.  Amissah, JA, stated in VANDERPUYE v. NARTEY, supra, that: 
“[T]he governing principle should be whether on the face of the affidavits there is need to preserve the status quo in order to avoid irreparable damage to the applicant and provided his claim is not frivolous or vexatious”. 
Plaintiff asserts that it is the legal owner of the Leased Assets, which assertion is not denied by the Defendants.  Defendants also do not deny Plaintiff’s further assertion that the Finance Lease, the agreement on the strength of which the 1st Defendant came to be in possession of the Leased Assets has been terminated, for which reason the 1st Defendant has no legal basis to keep the Leased Assets..  Yet, the Defendants on the other hand deny that by the terms of the Finance Lease, the 1st Defendant is required to return the Leased Assets to the Plaintiff and rather claim that the Finance Lease was executed ultra vires the law and therefore of no effect. Thus, there are 
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serious issues to be tried between the parties, as to whether or not the Plaintiff is entitled to its reliefs as claimed on the writ of summons.  Considering the pleadings and the affidavit evidence before me, I find, therefore, that the claim of the Plaintiff is neither frivolous nor vexatious.   
As stated earlier, where the court takes the view that the case was neither frivolous nor vexatious, the court must then proceed to determine the application for the interlocutory injunction by considering the balance of convenience as between the parties. 
In considering the balance of convenience, I must, however, first determine what is the status quo currently existing as between the parties.  From the affidavit evidence before me, it is a fact that the Leased Assets which are the legal property of the Plaintiff are currently in the possession of the 1st Defendant.  Further, the Plaintiff has terminated the Finance Lease because of the persistent default of the 1st Defendant in making the agreed rental payments for the use of the Leased Assets.  The Defendants do not deny these assertions, yet they insist on keeping the Leased Assets.  What will happen to the legal right of the Plaintiff in the Leased Assets if the status quo ante is maintained?  The foregone conclusion is, while these Leased Assets remain in the possession of the 1st Defendant, the Plaintiff is being denied the funds which would have accrued to it from hiring out the equipment to other potential or prospective customers.  Plaintiff, seeks to protect its proprietary/ownership interest in the Leased Assets against the danger of the continuous threat of depreciation physically and/or in value of the Leased Assets and limit its inability to realise the rents from the Leased Assets while they remain in the possession of the Defendants and while the substantive suit has not been heard.    
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[4] CONCLUSION 
I find that Plaintiff’s apprehension that should the Court refuse to grant it this interlocutory injunction, the Leased Assets will suffer a depreciation physically and/or in their value is real.  These assets are of a depreciating nature and while they are in the possession of the 1st Defendant, nothing prevents the 1st Defendant from continuing to use them to advance its business activities, while at the same time failing to make any financial payments to the Plaintiff for their continued use.  It is my opinion, then, that the Plaintiff stands to suffer more hardship by the continued retention of the Leased Assets in the possession of the Defendants.  What would the Defendants, on the other hand, suffer if the interlocutory injunction is granted?  To my mind, the Defendants stand to lose the benefit of working with the Leased Assets, assets they admit they do not own and whose continued use they do not deny failing to pay for.  In other words, the Defendants stand to lose nothing that rightfully belongs to them if the interlocutory injunction is granted.    The foregoing brings to mind what the Supreme Court said in the case of IN RE YENDI SKIN AFFAIRS; YAKUBU II v. ABUDULAI [1984-86] 2 GLR 231-238, that: “the courts had consistently operated on the principle that where two parties were litigating, every care must be taken to ensure that the party who eventually won did not find his judgment useless in his hands.  Hence, at first instance, there were rules for interim preservation of the subject of litigation, and for injunction to prevent waste.  At the same time the courts have tried to hold the balance evenly between the parties so that one did not take undue advantage of the other during the course of the litigation.  Those principles have been 
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applied, subject to the balance of the convenience in a particular situation and to the hardship which the making or the refusal of an order might have on one or the other of the parties.”    
In considering the competing claims of the parties in the light of the evidence before me and on the balance of convenience, therefore, I am of the view that it shall be rather unjust and/or inconvenient to maintain the status quo as between the parties.  I also find that taking into consideration the peculiar circumstances of this case, the Plaintiff will not be adequately compensated for in damages, should the court refuse to grant the interlocutory injunction pending the final determination of the suit.  In the AMERICAN CYANAMID CO. LTD v. ETHICON LTD case, supra, the court stated at page 509 thus:  
“The object of the interlocutory injunction is to protect the Plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the Plaintiff’s need for such protection must be weighed against the corresponding need of the Defendant to be protected against injury resulting from him having been prevented from exercising his own legal rights for which he could not be adequately compensated under the Plaintiff’s undertaking  in damages if the uncertainty were resolved in the Defendant’s favour at the trial.”  
After giving my thoughtful consideration to the rival contentions put forward by the parties to the suit in the light of the relevant provisions of the C.I 47, the case law and the principles underlying the grant or otherwise of an interlocutory injunction, I 
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conclude that it would rather be fair to grant the Plaintiff the order of mandatory injunction prayed for, directed at the 1st Defendant to immediately return or to redeliver to the Plaintiff the Leased Assets.  The Court grants this order with a view to preserve the security and the integrity of the Leased Assets, they being of a wasting nature, to protect them from depreciating physically and/or in value and to prevent further financial loss to the Plaintiff, which may be occasioned by the failure of the 1st Defendant to make the agreed rental payments for the continued use of the Leased Assets in the interim pending the final determination of the suit.  See the decision of Benin JA (as he then was) in the Court of Appeal case of GENERAL DEVELOPMENT CO. LTD v. RAD FOREST PRODUCTS LIMITED & OTHERS [1999 - 2000] 2 GLR 178.  It is the considered view of this court, therefore, that the justice of the matter requires that the application be granted.  
[5] ORDER:  
Let the 1st and 3rd Defendants convey the said tractor heads and trailers to the Plaintiff by sending same to the Plaintiff’s warehouse at Adenta on the Adenta-Aburi road near Geowags Limited, Accra, on or before 12th July, 2016 for the purpose of preservation pending the final determination of the suit.  
I make no order as to costs.     
   Sgd ……………………………………………… JUSTICE JENNIFER ABENA DADZIE JUSTICE OF THE HIGH COURT (COMMERCIAL DIVISION) 
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COUNSEL:  
BANNERMAN WILLIAMS, JNR. ESQ., OF SACKODAR CHAMBERS, ACCRA, FOR PLAINTIFF TUINESE AMUZU, (HOLDING BRIEF FOR DR. AZZIZ BAMBA, ESQ.) OF AB & M LEGAL CONSULT, ACCRA, FOR 1ST AND 3RD DEFENDANTS  
CASES REFERRED TO:  
PUNJABI BROTHERS v NAMIH (1958) 3 WALR 381 FRIMPONG v. NANA ASARE OBENG II, [1974] 1 GLR 16 ODONKOR v. AMARTEI (1987-1988) GLR 578 AMERICAN CYANAMID CO. LTD v. ETHICON LTD (1985) AC 396 VANDERPUYE v. NARTEY (1977) GLR 428, at 431 IN RE YENDI SKIN AFFAIRS; YAKUBU II v. ABUDULAI [1984-86] 2 GLR 231-238 GENERAL DEVELOPMENT CO. LTD v. RAD FOREST PRODUCTS LIMITED & OTHERS [1999 – 2000] 2 GLR 178 