The East Legon House: Ex Parte Injunction, Non-Disclosure and the Undertaking
Esi and Kojo are half-siblings. Their late father, Nii, owned House No. 12, East Legon, registered in his name. Esi claims Nii sold the house to her in 2019 for GHS 300,000, paid in two tranches, and that a deed was prepared but not registered. Kojo has collected rent from the four tenants since 2021 and has changed the locks. Esi files an ex parte application for an interim injunction restraining Kojo from collecting rent, leasing, or dealing with the property. The supporting affidavit is sworn by Esi's lawyer, who deposes that 'I am informed by the plaintiff and verily believe' that the house was sold, that Kojo has threatened to demolish it, and that the matter is urgent. The affidavit does not disclose that Esi previously sued Nii in 2018 over the same house, that the suit was struck out for want of prosecution, or that Nii's will is in probate and devises the house to Kojo. The court grants the order ex parte. Kojo applies to discharge it and to recover damages.
1. Was the ex parte application proper, and what are the consequences of the non-disclosure?
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An ex parte injunction is exceptional. It is justified only where the urgency is such that notice would defeat the purpose, or where the rules permit it. Esi's complaint concerns conduct that has continued since 2021, and the alleged threat to demolish is not supported by independent evidence. Urgency is therefore doubtful.
The applicant owes a duty of full and frank disclosure of all material facts. The 2018 suit and its striking out, the pending probate and the will devising the house to Kojo are plainly material. They go to the existence of a serious question, to delay and to the balance of convenience. The lawyer's affidavit concealed them. That is a serious breach. The court will ordinarily discharge the order even if the plaintiff's case is otherwise strong, because the jurisdiction is exercised without the defendant being heard. Costs may be ordered, possibly on an indemnity basis, and the matter may be referred for consideration of contempt or professional discipline.
An affidavit sworn by the lawyer is not automatically invalid, but the deponent must state the source of information and the grounds for belief. Contentious facts should ordinarily be deposed to by the plaintiff. The court may order the lawyer to attend for cross-examination.
2. How should the court approach the application to discharge on the merits: legal right, serious question, balance of convenience and status quo?
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The court should first ask whether Esi has shown a legal right or a serious question to be tried. Her claim rests on an unregistered deed and alleged payments. The house remains registered in Nii's name, and the will in probate gives Kojo a strong claim. There is a serious question, but it is not one on which Esi is clearly likely to succeed.
The court then considers whether damages would be an adequate remedy. If Kojo collects rent, those sums can be accounted for; if Esi ultimately succeeds, she can recover them. The balance of convenience therefore does not necessarily favour a blanket injunction. The court should preserve the status quo by restraining any sale, demolition or transfer of the property, and by requiring the rent to be paid into a suspense account or otherwise accounted for, rather than by transferring control of the property to Esi.
Delay and conduct also matter. Esi has waited since 2021, and the earlier struck-out suit is a serious factor. Non-disclosure is decisive on the discharge application. The court should discharge the ex parte order, but it may grant a limited order on notice with an undertaking as to damages, or refuse relief altogether and order that the dispute proceed to trial.
3. Can Kojo recover damages on the undertaking, and what must he prove?
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An applicant for an interim injunction, particularly ex parte, is normally required to give an undertaking as to damages. The undertaking is a promise to the court to compensate the defendant for loss suffered if the injunction was wrongly granted. Kojo can apply for an inquiry as to damages or for the court to assess them summarily.
He must show that the injunction was granted on a basis that fails, that the loss was caused by the injunction, and the amount of the loss. Examples are rent he could not collect, legal costs incurred in discharging the order, and damage to the property or to his relationship with the tenants. The court has a discretion; it may order an inquiry, direct the plaintiff to pay a specified sum, or reserve the damages to the trial.
If the order was discharged for non-disclosure, the court is more likely to enforce the undertaking. But the undertaking does not compensate for every loss; it covers loss flowing from the injunction. If no undertaking was given, Kojo cannot recover damages on it, although he may still seek costs and any other remedy available. The claim should be made in the discharge application or in a separate action, and it must be proved with evidence, not assertion.