EQUITY

A. History and Nature of Equity

1. Common law – Judges of England went around to hold sittings (Assizes) to hear cases of communities. This
enabled them to take the best local law and apply them throughout the country creating a system of law
common to the whole country – that is common law.
2. Common law courts includes:
a. Courts of exchequer (fiscal matters)
b. Court of common pleas (hear cases not involving the kings rights)
c. Kings bench (Reviewed the cases of the common pleas by issuing writs of error; also heard cases
involving kings interest, particularly criminal matters and cases that involved high noble men)
3. Common law procedure – the writ system
a. Extremely formal, beset with technicalities
b. No writ, no remedy
c. Common law is rigid, rules operated unjustly
d. Action was commenced in common law court by writ
e. Common law courts accepted new writs to cover new cases of action over which no judicial
precedent existed. New writs allowed new causes of action and generated new precedents
f. Common law courts had no problem hearing any new case for which there was no precedent because
a new writ could always be issued to cover a new case.
g. The problem with common law began when it stopped accepting new writs because parliament had
objected that it amounted to law making. Thus, whatever cause of action without an already issued
writ and without judicial precedent was not a legal matter the courts would entertain. Thus if one has
an injury, one has to determine the class of wrong his case fell and then apply for the appropriate
writ.
h. You could then have a situation where your injury could fall within a class recognized, yet select and
improper writ and thus the case will fail.
i. In addition, one could fail because after selecting the form of action, the plaintiff would realize that
the wrong done was of a class not referable to any known class of remedy.
4. Defects in the common law
a. System incapable of expansion or of adaptation to the growing wants of society
b. The common law has only one remedy, damages which was not often adequate
c. Paid too much attention to formalities
d. Common law did not recognize trusts
e. A mortgagor at common law forever lost his right of redemption of the property if he failed to
redeem it at the precise date agreed on by the parties.
f. Plaintiffs often unable to obtain remedy owing to strength of defendants who would defy court or
intimidate the jury
g. The use of juries who could be intimidated and corrupted
5. Development of Equity
a. The word equity means fair or just but the legal meaning is rules developed to mitigate the severity
of the common law. In the juristic sense, it means fairness and conscionableness in the adjudication
of disputes by the courts.
6. Rationale for the emergence and growth of equity – It was mainly a reaction to the inadequacies of the
common law and it is essentially about meeting the deficiencies or inadequacies of the common law.
 a. Defects in the law
b. Stringent technical or procedural requirements leading to injustice
c. Law tended to be applied uniformly and rigidly
d. Contemptuous disregard of the common law for human values
7. Petitioning the King – The king was petitioned as the fountain of justice where justice flowed to the citizens.
When the common law courts failed to dispense justice, people began to have a recourse to the king in
council by a way of petition or appeal for relief and for a time, the king determined the petitions himself (If
the agent has failed, I will go to the principal and plead my case). The king in correcting the injustice of the
common law applied equity – using his conscience as a guide. The king afforded remedies thus proving the
right the axiom – it is better to go to the fountainhead than to follow the stream. When the petition became
to many, the king delegated some to the Lord Chancellor – the keeper of the kings conscience. The king
through the chancellor, set up the court of chancery where the chancellor as the keeper of the kings
conscience was expected to apply the kings conscience to deal with the petitions on the basis of what was
morally right
8. The chancellor / court of chancery – The practice of applying to the chancellor directly led to the chancery
starting to function as a court properly so called. The chancellor used to issue writs on behalf of the king for
actions to be commenced in the common law courts for his writs to originate an action – He could now hear
grievances directly himself. Chancery court’s power to grant relief was based on the power of the king to
administer justice and reliefs granted in the kings name. Justice granted by the chancery guided by reason,
justice and conscience. Justice was administered in a more liberal and humane way. Equity came to
supplement the common law, that is recognize the defects of the common law and provide a remedy thus
turning into a system of its own. It introduced new rights, remedies, procedures, and intervened where
common law did not have a remedy, thus it upheld the rights under common law whilst adding new rights
and remedies hence the maxim equity follows the law.
9. New procedures introduced by equity:
a. Equity is not bound by the writ system
b. Chancellor did not use juries
c. Chancellor concerned himself with questions of fact
d. Chancellor could order a party to disclose documents (discoveries)
e. Chancellor could issue subpoenas (summons) compelling the attendance of defendants or witnesses
to be examined on oath.
10. New rights introduced by equity
a. Equity recognized trusts and gave beneficiaries rights against trustees
b. Equity developed Equity of redemption (Right to redeem a property)
c. Specific performance – forcing the defendant to fulfil his end of the bargain
d. Rectification – an order directed at the defendant to modify a document to reflect the agreement
made by two parties.
e. Rescission – An order revoking an agreement
f. Injunction - An order to restrain a party
g. Appointment of a receiver – The appointment of a named individual who takes possession of
property for its protection and realization
h. Order for account – An order requiring a party who has control of money belonging to the claimant
to report on the way in which the money has been spent.
11. Rivalry between the courts – The court of equity (chancery) became popular because of its:
a. Flexibility
 b. Superior procedures
c. It’s is more appropriate remedies
d. With the explicit creation of the court of chancery at the end of the 14 th century, there was an
opposition to its jurisdiction particularly form the common law courts. By the 15 th century, equity
was seen as the rival system of common law. Common law judges contend that the jurisdiction
exercised by the chancellor was unknown to statute or the common law. The chancery court was also
viewed as eroding or undermining the common law court because of it realistic and progressive
nature
e. Problem arose as to the issue of injunctions; rivalry between the two courts. The rivalry came to an
end in the Earl of Oxford’s case where the judgement of Chief Justice Coke was obtained by the
plaintiff by fraud. The Lord chancellor Lord Ellesmere, issued common injunction prohibiting the
enforcement of common law order on the ground of equity and good conscience. Chief justice Coke
threatened to issue a writ of prohibition against Ellesmere’s interference with judgement of the
common law courts – two courts in a gridlock.
f. Matter was referred to King James I, who after conferring with lawyers such as Francis Bacon who
later became Lord Chancellor, decided in favor of the chancery to effect that whenever equity and
common law conflict, equity was to prevail.
12. Problems arising with Equity
a. Each chancellor gave judgement according to his own conscience and this led to criticism about the
outcome of cases. John Selden, an eminent 17 th century jurist noted: Equity varies with the length of
the chancellor’s foot. He noted:
b. “Equity is a roguish thing, for law, we have a measure, know what to trust to, equity is according to
the conscience of him that is the chancellor and that it is large or narrower so is equity. This all one
as if they should make the standard for the measure we call a foot, a chancellors foot, what an
uncertain measure this will be? One chancellor has a long foot, another a short foot, a third and
indifferent, this is the same thing as the chancellor’s conscience.
13. Solutions and further problems
a. Lord Nottingham – He is believed to be the father of equity and believed that equity needed to have
clearly defined principles and he introduced a more systematic approach to cases. The problem came
as a result where by the 19th Century, Equity became as rigid as common law.
14. Attempts to fuse Equity and common law
a. Common law procedure act, 1854 – Common law given limited power of granting injunctions
b. Chancery amendment act 1858 (Lord Cairns Act) – Gave court of chancery the power to damages in
addition to or in substitution for injunction or specific performance.
15. Judicature Acts of 1873 and 1875
a. Created one system of courts by amalgamating the common law courts and the courts of equity.
b. Court will administer both common law and equity – court of complete jurisdiction (Pugh v. Heath)
c. Section 25 of judicature act
d. Salt v. Cooper – Sir George Jessel: As solicitor general was largely responsible for the judicature
acts and stated that the main object of the act was not the fusion of law and equity, but the vesting in
one tribunal of the administration of law and equity in all actions coming before that tribunal.
e. Prof. Ashburner (Traditional Approach) – Common law and equity are two streams running
alongside but never mingling. Courts exercising jurisdiction in both law and equity was required to
maintain separation of equitable doctrine from common law rules whereby legal rights remain legal
rights and equitable rights remains equitable rights though administered by the same court.
 f. Lord Diplock (Fusion Theory) – United Scientific Holdings v. Burnley Borough Council: By the
judicature act 1873 the two systems of adjectival and substantive law administered by the courts of
law and courts of equity were fused. If Professor Ashburner’s fluvial metaphor is to be retained at
all, the confluent streams of law and equity have surely mingled now.
g. It is difficult to follow dictum of Diplock to the point of saying that cannot distinguish between the
two as in respect of trusts for instance. There is a distinction between legal and equitable interests.
h. Conclusion – What the judicature acts have really done is to provide for the administration of law
and equity in the same courts, for the recognition by these courts of both legal and equitable rights,
remedies and defences and for the submission of law to equity where they are in previously in
conflict. It is the fusion of administration rather than of principles. As have been well said, the two
streams have met and now run in the same channel but their waters do not mix. Although the court
directed to administer both law and equity, the substantive part of equity (the rules) remained distinct
from those of law. Judicature acts fused administration of law and equity by making it possible to
obtain both remedies in one court but the substantive part of equity and law remain distinct as equity
did not replace the law but mitigated it rigidities. It is the administration of the principles which are
fused not the principles themselves. All branches of the courts now have the power to administer
equitable remedies. Equitable defences can be pleaded in all courts and appropriate reliefs given. All
branches of the court must recognize equitable rights, titles and interests.

B. Maxims of Equity
1. Various summaries of the principles, which guide the court in the exercise of its jurisdiction to determine
whether or not to grant an interest or remedy. They serve as a general set of principles or rules that govern
the way in which equity operates.
2. The maxims illustrate the qualities of equity in contrast the way common law operates, equity maxims are
more flexible and responsive to the needs of the individuals and more inclined to take account of the
conduct of the parties and worthiness. The maxims are applied only where the court feels it is appropriate
and none of the maxims is in the nature of a binding rule.
3. Primary justification for the intervention of equity
a. Common law did not provide adequate remedies.
b. Reference is as to the rights that are suitable for judicial enforcement, but were not enforced at
common law owing to some technical defects of common law. E.g.: The enforcement of trusts by
beneficiaries
4. Maxims include:
a. Equity will not suffer a wrong to be without a remedy – This is illustrative of the nature of equity and
the restatement of the legal principle of where there is a right, there is a remedy. It means no wrong
should go unaddressed if it is capable of being remedied by the courts. A legal wrong is a wrong that
is capable of being remedied by the a court of equity. Equity will not allow technical defects to
prevents the delivery of justice or remedy (a reach of a moral right will not qualify). An example
will be the enforcement of a trust.
b. Equity follows the law – Addition and supplementary to the common law but not does not follow
slavishly or always. Maitland – We ought not to think of common law and equity as two different
systems. Equity did not come to destroy the law but to fulfil it. To supplement it and to explain it.
Edmund Henry Turner Snell – It is only in extraordinary circumstances that equity departs from the
common law and therefore the modified maxim equity follows the law but not sluggishly or always.
If the rules of common law become rigid and archaic, equity will not follow them. If there is any
 circumstance, which the common law disregarded and will do injustice, equity will not follow the
law but will intervene to do justice. This is demonstrated in:
i. Restrictive covenants – Common law said it was personal to person entering a covenant and
assignee/sub-lessee are not bound. In Tulk v. Moxhay, equity departed from common law to
establish that the covenant run with the land not the tenant
ii. Mortgagor’s equity of redemption – Irrespective of the time indicated in agreement, equity
will find equitable interest in mortgagors favor.
iii. Creation of an interest in a beneficiary which the common law did not.
c. He who seeks equity must do equity – Relates to the future conduct of a person coming to equity –
future conduct. The person who seeks the intervention of equity will be prevailed upon to deal fairly
with the other party. He must recognize and submit to the right of his adversary. He must be
prepared to do what is right and fair to his opponent; must concede, recognize, and admit the
equitable right of the defendants.
i. Illegal loans – The common law position is that such a contract was not enforceable so you
cannot go to court and sue for the enforcement of such a contract because it was illegal.
Equity began to be faced with situations where the creditor has performed part of his
obligation, the person who takes the money sues for his security and says he won’t give the
money back to the creditor because the transaction was illegal. Equity will say that despite
the fact that the transaction is illegal, you should pay back the money
1. Lodge v. National Union Investments – Borrower borrows money from a lender by
mortgaging certain securities to him. Lender was not registered as a money lender
under the money lenders act, contract was illegal and void. B sued for the return of
his securities, court refused except if B repaid the monies advanced to him.
2. Kasuma v. Baba Egba -
d. He who comes to equity must come with clean hands – Looks at the previous conduct of the
applicant. The requirement of clean hands relates to the transaction in question must have an
immediate and necessary relation to the equity sued for.
i. Keystone Driller v. General Excavator (Patent infringements replying on that at equity) -
There the Court held that a determination of unclean hands may be reached when
“misconduct” of a party seeking relief “has immediate and necessary relation to the equity
that he seeks in respect of the matter in litigation,”
ii. Loughran v. Loughran (Cohabitation, separation and maintenance) - However, equity does
not demand that it suitors should have led blameless lives
iii. Gills v. Louis – Tenant used the premises for purposes not allowed under the lease and
cannot be afforded a remedy against the lessor.
iv. Ewing v. Osbaldistion (Public play within 20 miles without permit) – When a contract is
illegal or immoral, it is not capable of being specifically performed.
v. Highwaymen case – Two robbers were partners. Due to a disagreement in shares, one of
them filed a bill against another for accounts of the profit of robbery. The cause of action
arose from an illegal occupation so they court refused to help them.
vi. Example: Tenant defaults on rent and goes to court to prevent the right of re-entry by the
landlord – Does not have clean hands. Equity gave relief against the forfeiture if the tenant is
willing to pay the rent outstanding and had not also breached other terms of the contract.
e. Delay defeats equity – Equity aids the vigilant not the indolent – If you sleep on your rights, the
rights will be taken away from you. Acquiescence is conduct from which it can be inferred that a
 person has agreed to a certain state of affairs affecting his legal rights example: consenting by
remaining silent. One is guilty of acquiescence when he abstains from interfering when his legal
rights are violated. Delay in Equity we call Laches and a person is guilty of laches when he takes no
step to enforce his violated right (unreasonable delay). If you delay in exercise of your rights and
will be unfair to other party then equity will not allow you to assert your rights (Allcard v. Skinner).
Laches is the equivalent of statute of limitations. However unlike statute of limitations, leaves it up
to the court to determine based on unique facts of the case whether plaintiff has waited too long to
seek relief. Whether the courts will regard the claim as barred will be a matter determined by the
facts.
i. Section 2-5 of Limitations Act 1972 (NRCD 54) refers to actions statute barred after specific
periods of time
ii. Section 6 (1) – of limitations Act provides for the exemptions for equitable reliefs: Section 2-
5 shall not apply to any claim for specific performance of a contract, injunction or other
equitable relief.
iii. Allcard v. Skinner - The Court of Appeal concluded that the gift was tainted by undue
influence. They presumed this from the claimant’s relationship with the sisterhood, the
defendant and her confessor. However, the claim was barred for laches and acquiescence.
The claimant’s delay, combined with evidence that she had considered reclaiming the gift but
had chosen not to, showed that she acquiesced to the defendant keeping the property. The
claimant could not reclaim her gift as a result.
f. Equality is equity (Equity does delight in equality) – Equality is the fairest way of doing things. If
there is no clear indication what the intention of the parties is, equity will presume that it is intended
equally. Equity says joint tenancies are unfair so will presume that holding as tenants in common
where the rights of survivorship does not apply. Statutory but rebuttable presumption under Section
40(3) of the lands act (Act 1036) where tenancy in common is presumed. This can be seen in:
i. Equity’s dislike for joint tenancy and the presumption of tenancy in common
ii. Equal distribution of joint funds.
iii. Fenuku v. John Teye
iv. Petit v. Smith – Brother and sister sharing land
v. Diwell v. Farnes – Wife and husband bought land together and one died
g. Equity looks to the intent rather than the form – Looks at the intention of parties or the substance of
the transaction. Equity looks like the spirit not to the letter, that is intention not words. This intention
will be given effect to though the legal formalities have not been complied with
i. Street v. Mountford – Agreement created a lease even though it was called a licence in the
agreement. The appeal was allowed. A lease must grant exclusive possession of the property
for a fixed or periodic term at a rent. It is the nature of the rights created which are important.
Superficial labels are irrelevant. The only intention that was relevant was the intention to
confer exclusive possession.
ii. Parkin v. Thorold as per Lord Romilly – This should not be thought that formalities are not
required however, equity will not enforce or recognize equitable interests where for instance
formalities are required by the statute
h. Equity looks at that as done which ought to be done – Where one party incurred obligations to do
something but is yet to do so, equity will look on that as producing the same result as if the
obligation has actually been performed. Though there is not creation of a legal interest, equity will
imply the creation of an equitable interest. This relates to specific performance.
 i. Walsh v. Londsdale – A specifically performable agreement to create or transfer property
right will be good in equity even if it is not finally effective at law. Where oral agreement is
supported by acts of part performance, specific performance will be granted and equitable
interests conveyed.
ii. Maddison v. Alderson - The doctrine of part performance: Contracts with respect to land
allowed to be formed by oral evidence where one of the parties does acts of part performance
iii. Central London property trust v. High trees House Ltd – A promise intended to be binding,
intended to be acted on and in fact acted on is binding so far as its terms properly applied.
i. Where equities are equal, the first in time prevails
j. Where equities are equal, the law prevails
i. General rule in determining priorities is that the first in time prevails
ii. If both of them can claim to have acted equitably, then generally the legal interest is the one
that will prevail. This is subject to fraud, estoppel etc where the legal interest will not prevail
over equity.
iii. Abigail v. Lapkin – The claimant who was first in time may lose his priority by any act or
omission which has or might have had the effect of inducing a claimant later in time to act to
his prejudice.
iv. A bona fide purchaser of an equitable estate without notice (actual, constructive or imputed)
of the equity will take free of it – Equity’s darling
v. Amuzu v. Oklikah.
k. Equity imputes an intention to fulfil an obligation – Where a person who owes an obligation to
another person does something/an act which is not clear on the face of it why it has been done but is
consistent with his/her obligations, equity will say that person has discharged his/her obligations.

C. REMEDIES - Specific Performance

1. A decree of the court directed at a particular person or persons in exercise of its equitable jurisdiction to
compel the discharge of an obligation already lawfully undertaken. It is a remedy in personam. (recall the
maxim ‘Equity acts in personam’)
2. A failure to comply with the court order will amount to contempt of court. Contemnor is faced with the
threat of committal to prison for contempt, otherwise = economic breach
3. It is a discretionary remedy, and therefore subject, like all equitable rights or remedies, to the frailties of
equity since all the rules and maxims of equity apply.
a. Specific Performance (SP) will not be granted if the person seeking the remedy sleeps on his rights/
does not act timeously.
i. Kwame Bonsu v Kwame Kusi
ii. Kojo Asamoah v Angela Fritz
b. Another weakness of the remedy is that it will not be granted to a party who is in breach of an
important term of the agreement. The reason being the maxim that he who comes to equity must
come with clean hands. It will also not be granted if the conduct of the party requesting it is unfair or
reprehensible.
i. Gyimah & Brown v Ntiri
4. Key thing to note is that SP is discretionary
a. Busby v Acquah, Bassil v Honger, Kwame Bonsu v Kwame Kusi where the court held that the
prompt and sustained efforts on the part of the family to protect their property, defeated the
appellants’ plea of bona fide purchaser for value.
 b. Mahama Hausa And Others V. Baako Hausa And Another: that:“Even if the second defendant was a
bona fide purchaser from the first defendant the law permits sales of family property to be avoided in
situations where prompt action is taken by the family concerned or its representatives to prove that
the sale had been made without the consent of the principal members of the family. And in this case
there was no evidence that the plaintiffs had slept on their rights.
5. Grounds for granting Specific Performance:
a. Inadequacy of Damages: The Common Law remedies must be inadequate ie where damages alone
will not suffice, SP may be granted. It is the general rule that intervention by equity in SP may be
sought only if the remedy at law is inadequate, since equity follows the law. The Uniqueness of land
makes the court more ready to grant SP, the idea is that no two pieces of land are the same, hence
not substitutionary performance, but specific performance.
i. In Bonsu v. Agyemang, the plf sued the dfd claiming SP of a contract on the sale of a piece of
land next to the then Motorway Extension. The HC upheld the claim and dfd appealed to the
CA, which upheld the appeal denying the order of SP on the grounds that in each case the
court should investigate the uniqueness of the land before granting SP. On further appeal to
the SC, the CA decision was reversed and the SC held unanimously that the court will
always presume damages to be inadequate in respect of land transactions as land is inherently
unique.
ii. Redco Ltd v Sarpong
iii. In the case of movable property, it is likely to be granted on goods that are unique, of special
value (sentimental or intrinsic). See section 58 of Ghana’s Sale of Goods Act, Act 137 and
the potential for the Ghanaian Courts.Sale of Goods Act, 1963 (Act 137)- SP available for
contract for sale of specific or ascertained goods.
1. Behnke v Bede Shipping Co
iv. There are some conceptual difficulties with the adequacy or otherwise of liquidated damages
for a decree of SP. By the acts of the parties in providing for damages in the contract, implies
damages will be adequate and therefore the issue of SP does not arise.
v. However, in a contract where there are many remedies available and liquidated damages is
only one of them, SP as one such other remedy should be available. The fact that the parties
agreed to an amount in case of non-performance does not preclude them from other remedies
open to them, including SP. The real intention of the parties is important here and the
surrounding circumstances of each case will determine whether the court will grant SP or
not.
1. Falcke v Gray
2. Cohen v Roche [1927] 1 KB 169
3. Beswick v Beswick [1968] AC 58
b. Contract must be specifically enforceable - there must be a legally binding and enforceable contract
and the obligation arising out of the contract must be one binding in law. It will not be granted for
illegal and immoral agreements
i. NTHC v Yaa Antwi
ii. Short v Morris: no purchase price agreed, therefore no contract.“We the
undersigned…..hereby acknowledge receipt of the sum of …. by way of advance on the
pruchace price of our joint property at J.P. Brown Street which we have agreed to sell to
him after agreement on the purchase price which Mr. J. B. Short has put at £850 as against
our demand for the sum of £1,000."
 iii. Contract need not be binding just at Common Law, but it is enough if they are binding in
equity. ie. even if not written as required by law, oral agreements can be specifically enforced
eg under Part Performance. Since 1974, Ghanaian law no longer exclusively recognized
transfer of land in writing. Section 4 of the Conveyancing Act, provided that a transfer of
land shall not be enforceable unless it is evidenced in writing and signed by the person
against whom it is to be enforced. However, section 3 created some exceptions like
transactions that take effect by operation of law, rules of equity and the doctrine of part
performance. The Conveyancing Act has been repealed by section 282 of the Land Act, 2020
(Act 1036) but sections 3 and 4 have been re-enacted in sections 34 and 36 of the Land Act.
iv. Doctrine of part performance - The principle is that, although the formal requirements as to
writing has not been complied with, equity will hold that there is a binding contract if all the
essentials to the contract exist, provided the party who seeks to enforce the contract has
performed at least a part of his obligations under the contract.
1. IBM World Trade Corporation v. Hasnem Enterprise Ltd, Justice Adzoe JSC (as he
then was) is of the view that a plf who seeks SP of a contract must show that he is
ready and willing to perform his obligation under the contract; any failure on his part
or breach of his own obligation is a bar to his claim for SP. The act of part
performance must be by the plf. Part performance by the dfd will not entitle the plf to
obtain a decree of SP.
v. What amounts to part performance? Acts must be based on the faith of the contract and must
also be referable such as the one alleged to exist. Note the traditional principle that the act
must unequivocally be referable to the contract as stated in Maddison v. Alderson.
1. Maddison v Alderson Case: Payment of money per se has not generally been
considered as sufficient act of part performance as per Lord Selborne. Parole
evidence must connect the payment to the agreement.
2. Steadman v Steadman departed from this position, holding that payment of money
was sufficient as part performance.
3. In Djan v. Owoo Edusei J. also held that two installments of advanced payment
constituted sufficient part performance.
4. See also Koglex v. Field
5. Sbaiti v. Samarasinghe
c. Contract should not be unconscionable or oppressive - built on the “clean hands” maxim- if the
contract is grossly unfair as to be unconscionable to be enforced, no SP
i. Campbell Soup Co v Wentz- sale of special red cored carrots exclusively to co, no sale to
others, but possible rejection of stock in excess of twelve tons to each of the 15 acres covered
by the agreement.
1. even if refused, couldnt sell without consent of the company
2. farmers liable for liquidated damages for breach, but co not liable for any damages.
d. Mutuality - Equity will decree specific performance only if the remedy is available to the other
party. Mutuality means that each party to the agreement should be entitled to the relief. was
generally a bar to SP if the other party would not be entitled to the remedy.
i. Flight v Bolland:
ii. Elliot &H. Elliot (Builders) Ltd v. Pearson
iii. rule as to mutuality- criticised by many including Kludze on the bar against infants seeking
SP, See majority decision in Lartey v Bannerman (per Amissah JA.(obiter)
 iv. court modified the principle, and stated (obiter) that if the infant has performed his side of the
bargain, SP may be decreed in his favour
v. It is also significant to note that in England the old rule on the doctrine of mutuality has been
subjected to re-appraisal and rejected by the CA in Price v. Strange. In this Case, it was
agreed orally that if the plf executed certain repairs on the property, he would be granted a
lease of it. After the plf had completed half the work, the dfd refused to allow him to
continue and repudiated the contract. The plf brought an action for SP and dfd pleaded lack
of mutuality as a bar for the relief. Dfd’s case was that because the court could not grant SP
for repair contracts there was want of mutuality. FunFact: Originally, SP could not lie against
married women because it was not available to them
e. SP may be granted where breach is threatened even though the time for completion isn't actually
there
i. Hasham v Zenab
6. Barriers to SP
a. Stultification - Equitable remedies are not issued unless the court can ensure that they will be
observed. This is because equity does not act in vain. Specific performance will be decreed only
when the defendant is in a position to comply with the order.
i. Jones v. Lipman - (Masking land sale after prior agreement)
b. Misdrescription - If substantial, it vitiates the whole contract which, therefore, cannot be specifically
performed. It means because of the misdescription there was no contract at all to be enforced.
i. British Bata Shoe Co. Ltd.v. Roura & Forgas Ltd: applicants had entered into an agreement
to purchase a piece of land, on the basis that a freehold will be conveyed. It turned out that
the vendor respondents title was defective since they had only a life interest. An order for SP
was discharged by the SC because what was offered was different from what they bargained
for.
ii. Also a possessory title cannot be forced on a purchaser who intended to buy a freehold
property, see Re Brine & Davies’ Contract [1935] Ch. 388.
iii. Re Fawcett & Homes’ Contract - If the misdescription is minor or insignificant, SP may be
granted. In such a case though the purchaser did not get exactly what he bargained for but he
got substantially that and the discrepancy can be compensated for with damages.
c. Illegal / immoral contracts - Where a contract is illegal or immoral it is not capable of being
specifically enforced.
i. Ewing v. Osbaldiston - it was the law that no play could be acted for hire, gain or reward
within 20 miles of London, without the authority of letters patent from the Lord
Chamberlain. The parties agreed to enter into a partnership in breach of this law. An order for
SP of such an agreement was refused, because a decree would have commanded an illegal
act.
ii. Zagloul Real Estates Co. Ltd. V. British Airways Ltd. [1998-99] SCGLR 380, the SC held
that equity certainly abhors illegal transactions like the dishonest device contrived in a deed
of indemnity and will not condone the granting of any relief since equity cannot be invoked
in aid of an illegal transaction.
iii. Hope v Hope - even if legal in the country where the contract was made, not enforceable in
Ghana if illegal in Ghana/ immoral.
d. Contracts requiring supervision - It is an established principle that SP will not be granted of a
contract which requires constant supervision by the court
 i. Blankett v. Bates
ii. Ryan v. Mutual Tontine Westminster Chambers Association - the lease of a residential flat
in a block of buildings contained inter alia a covenant to the effect that the lessor will
provide a resident porter for some duties. The Porter was a cook who was irregular at work
because he took other jobs as chef elsewhere. SP against the lessors was refused because the
contract involved successive continuous acts which will have required constant supervision
by the courts
iii. Co-Op Insurance v Argyll Stores
iv. Seeley v Jago - Equity, like nature, will do nothing in vain’- per Lord Cowper. if it is not in a
position to enforce it, court of equity will not decree it
v. An exception to the rule is that SP may be granted of a building contract in a case where the
nature and specifications of the building are with sufficient precision stipulated in the
agreement as in Wolverhampton Corporation v. Emmons
e. Contracts of personal services and personal skills - The general principle is that the courts will not
order SP of contracts of personal services or those involving the use of or application of personal
skills. However the principle has seen some statutory manipulation.
i. Bani v Maersks Gh. Ltd - It remains the common law that the remedy available to an
employee who has been wrongfully dismissed or terminated is an action for damages. An
employee cannot be awarded an order for his reinstatement into a job from which he has
been removed unlawfully, unless there is a public law element which requires otherwise.
See Lt. Col. Ashun v Accra Brewery Ltd. [2009] SCGLR 81. A reinstatement would be
equivalent to specific performance of a contract of employment, which is not permissible. It
is settled law that contracts of employment, in general, may not be specifically enforced at
the suit of either party. There is a sound policy underlay to this rule. It has to do with the
courts restraining themselves from interfering with personal liberty. The essence of the
policy is sometimes expressed in the saying that contracts of employment are not contracts of
servitude. It would not be wise to compel an employee to work for an employer he does not
want to work for, nor conversely to compel an employer to employ an employee it does not
want to. There is a large element of personal relationship in many employment contracts
which would make them unworkable if the parties were compelled to work together.
However, increasingly, modern legislation has been intervening to give employees a right to
reinstatement. This is in recognition of the fact that the modern relationship of an employer
to an employee may have less of the personal element of the master and servant relationship
in response to which the equitable principle developed, that contracts of employment should
not be specifically enforced. In Ghana, the statutory intervention to give employees the right
to reinstatement has not been to set aside the equitable principle refusing specific
performance to contracts involving personal service. Rather, it is a remedy that is made
available to the Labour Commission established under the Labour Act 2003.
ii. De Francisco v. Barnum is of the view that ‘the Courts are bound to be jealous, lets they turn
contracts of service into contracts of slavery’. In principle equity leans against contracts of
servitude. Policy considerations are that it will be improper to compel one man to work for
another against his will.
iii. By the same reasoning an employer cannot be compelled to keep a servant as stated in Page
One Records, Ltd. V. Britton. Plf cannot use an injunction to indirectly enforce performance -
Page One Records
 iv. Very much like contracts of service are contracts which by their very nature require the use
or application of personal skills. Such contracts will not be specifically enforced because the
Courts cannot specifically supervise the application of the personal skills. eg contract to
perform on stage- how will court ensure eg that Sarkodie raps properly? can he then be sued
for suddenly stammering? or forgetting his lyrics? can you specifically enforce that he sings
at the correct pitch and with correct timing? court will not stultify itself and therefore will not
grant Sp for contracts requiring personal skill.
1. Lumley v Wagner
2. Owusu-Afriyie v State Hotels Corpn, and the decision by CA reversing it sub nom
State Hotels v Owusu-Afriyie. compare with
3. Vine v National Dock Labour Board
v. Bank of Ghana v. Nyarko. Apaloo J.A (as he then was) did not side with the State Hotels
Corpn case. He was of the view that the trial judge had formulated a broader principle than
the authorities he cited suggests, and that the case was distinguishable. He was of the view
that the bank was entitled, even without assigning a reason, to dispense with the services of
any of its employees. And all the Justices of Appeal concurred with Apaloo’s position.
vi. In some American Jurisdictions, particularly where the employer is a public institution, the
courts have been willing to decree SP.
1. Endress v. Brookdale Community College - The NJ Superior Court ordered the
reinstatement of an Assistant Professor who had been wrongly dismissed for writing
critical editorial against the College Administrators.
2. American Association of University Professors v. Bloomfield College 136 NJ Super.
442 A. 2d 615.
f. Part of a contract - Generally, the court will not split a contract so as to grant SP of only a part,
unless the contract as a whole is specifically enforceable. Therefore if the agreement covers several
matters, of which some are specifically enforceable but others are not, the general rule is that SP will
be refused of even those parts which are specifically enforceable unless they are severable. See the
rules of severability of contracts.
i. Ogden v. Fossick - the agreement was that the dfd would grant a lease of a coal wharf to the
ptiff at a certain rent and that the dfd would be appointed manager of the wharf throughout
the tenancy at fixed remuneration. Because of the part of the contract relating to employment
was a contract of service, it was considered not specifically enforceable.
ii. Wilkinson v. Clements (1872) - The building agreement provided for piece-meal leases to the
builder as he completed the building on each plot. On the completion of the building on one
plot, SP was granted of the lease of that plot, though the rest bad not been completed. The
only condition under which the court will grant SP of part of a contract is where the part to
be specifically performed is distinct and separate and independent of the unenforceable part.
That is to say the contract is severable.
g. Specific performance against the republic - Under the old State Proceedings Act, 1961 (Act 51).
Section 13 (2) and (3) made the liability of the State in Contract the same as that of a private person.
However, S. 13 (1) prohibited the grant of orders of Specific Performance or an Injunction. In lieu
the court could make a declaratory order in respect of the rights of the parties. But under the current
State Proceedings Act, 1998 (Act 555), the combined effect of sections 2, 3 and 13 is also to make
the liability of the state in contract and tort the same as that of a private individual. In addition the
 court can grant any relief and make any order as it has power to make in respect of a private
individual. And these orders may include those of Injunctions and Specific Performance.
h. Subject matter of SP does not exist -
7. Defences –
a. Hardship: Patel v Ali: damages awarded instead on proof of special facts that demonstrated that were
the order to be granted it would cause great hardship to 1st def.
b. Impossibility of performance-
i. Jones v Lipman,
ii. Watts v Spence
c. the plaintiff has not performed his obligations:
i. Lamare v Dixon

D. REMEDIES - Rectification:
1. Rectification is a discretionary remedy jealously guarded by the courts and based on the inflexibility of the
common law and the inadequacy of the remedy at law.-Thompson v Hickman.
2. A wide range of instruments can be the subject of rectification: Conveyance, bill of exchange, marriage
settlement, transfer of shares, and statutory Wills. It may be necessitated where, for instance, through a
mistake a written instrument does not reflect the true agreement between the parties. In that case equity may
rectify the instrument to render it consonant with the true wishes of the parties. The rectification is aimed at
the manner of expression of the transaction on paper.
a. Mackenzie V. Coulson - that courts of equity do not rectify contracts, but rather they rectify
instruments purporting to have been made in pursuance of the terms of contracts. Rectification is
ordered upon clear conditions.
3. It is an exception to the parol evidence rule, where oral evidence may be admitted to demonstrate that a
written instrument is incorrect
a. Joscelyne v Nissen, the CA ordered for rectification of an agreement between a daughter and her
father which they intended should include a provision that she was to pay the household expenses,
which she has refused to pay, claiming that she was not required to do so on a true construction of a
written agreement she had entered into
4. Grounds for granting rectification:
a. No alternative remedy - An order of rectification will not be granted if the result can be achieved
through other methods or remedies - Walker Property Investment (Brighton) Ltd. V. Walker. Also
voluntary out of court correction.
b. Collateral contract – Walker Property Investment (Brighton) Ltd. V. Walker
c. Construction - If the error is merely grammatical or clerical the court may correct it without ordering
rectification.
i. Colmes v Humes-instrument recited that the defendant owed a sum of money without
specifying the currency. The court held that the currency was pound sterling cos the
instrument was executed in England
d. Mistake - If rectification is sought on the basis of a mistake, the mistake must be considerable and
sufficient to invoke the doctrine. If by reason of mistake, the instrument differs from what was
agreed upon, court may decree rectification-, to remove any discrepancy b/n the oral agreement and
the written form
 i. Murray v Parker - The mistake must be one common to both parties and contrary to their
intention.
ii. Unilateral mistake is only corrected in specific limited circumstances
iii. Requirements for mistake:
1. There must be an antecedent agreement - Frederick E Rose v Pim, per Denning LJ-
“…if u can predict with certainty what their contract was, and that it is, by common
mistake, wrongly expressed in the document, then you can rectify the document…”
(here the rectification was not possible because the parties agreed to buy and sell
horsebeans, and the written contract referred to horsebeans, but the parties mistakenly
believed that horsebeans were same as feveroles.)
2. Doesn’t have to necessarily be a binding, enforceable contract- Joscelyne v Nissen
(agreement between father and daughter that he would hand over business to her, she
would take care of his bills etc. The term was not expressed in the written contract,
woman refuses to pay the bills saying the agreement isn’t enforceable. Court rectified
the written contract to express those terms)
3. Contract must remain in force at the material time of the execution of the instrument.
if the parties varied the terms of a first oral agreement, then reduced the 2 nd one into
writing, they will not be allowed to rectify the terms of the instrument to reflect the 1 st
agreement- Fowler v Fowler. In Frederick e rose v Pim, they weren’t allowed to
rectify because it was held that at every material moment the parties intended to
contract for Moroccan horsebeans described as feveroles and nothing else” nor will it
be rectified to reflect changes made to it after it has been signed/ executed Bradford
(Earl) v Romney (Earl)
iv. Unilateral Mistakes - where one party incorrectly records a term of the agreement, but it is
bonafide accepted as it is written by the other party, the mistake is unilateral and there is no
ground for rectification. The party making the mistake can only obtain rectification if he can
show that the mistake is due to fraud of the other party, or that the other party was aware of
the mistake. Riverlate Properties Ltd V. Paul - The plaintiffs, who were the landlords of
property in London, intended to provide in the lease that the defendant should be liable to
contribute one half of the landlord’s expenditure on external and structural repairs. By
mistake, the lease omitted that term. The defendant and her solicitors were unaware of the
mistake. The lease stood, as signed.
v. The circumstances under which a person will be estopped from resisting rectification where
laid down by Buckley LJ (as he then was) in Thomas Bates & Sons Ltd v Wyndham’s
(Lingerie) Ltd as: First, that one party, A, erroneously believed that the document sought to
be rectified contained a particular term or provision which, mistakenly, it did not contain.
Second, that the other party, B, was aware of the omission or the inclusion and that it was
due to the mistake on the part of , A; third, that, B has omitted to draw the mistake to the
attention of, A … a fourth element is namely, that the mistake must be one calculated to
benefit B. Roberts and Co. ltd v Leicestershire County Council, the plfs had undertaken to
build a school for the defendants. The agreement provided that the school should be
completed within 18 months, but the officers of the council altered the period to 30months in
the draft contract, not drawing the company’s attention to the alteration. The company
signed the contract without noticing the change, and one of the defendant’s officials was
aware of the mistake. Rectification was ordered.
 vi. Rectification may be granted where one party was induced by fraud to sign an agreement
which he would otherwise not sign. See PY Atta & Sons Ltd v Kingsman Enterprise Ltd -
The plaintiff in this case entered into the agreement with the dfd, believing that it was a
sublease and parties related to each other on that basis. However, the final document drafted
by a common solicitor was in the nature of an assignment. On appeal to the SC it was
unanimously held that the document could be rectified because both parties relied on a
document as a sublease which turned out to be an assignment.
5. Barriers to rectification:
a. Rectification will not normally be allowed if a third party have acquired rights bona fides for value.
b. delay may also bar a claim.
i. Smith v Jones
ii. Beale v Kyte
c. Acquiescence: means alth’ough you are aware of the error, you’ve chosen to adopt the instrument
with the mistake. This may either be express or inferred
d. prior performance: if one party has performed his obligations wholly under the agreement, may not
be allowed to rectify the terms to prejudice him
e. Incapability of performance: equity will not do anything in vain, so if the agreement can no longer
be performed/ executed, will not waste time with decree. eg, if the subject matter doest exist, or is
rendered illegal by some statute no rectification, if contract has already been breached, no point in
rectifying the terms. Borrowman v Rossell- plfs failed to deliver refined petroleum according 2
sample, within the stipulated period in the agreement. The court held that the defs were entitled to
treat the contract as at an end, and there was no basis for rectification.
f. 3rd party rights; if it will prejudice the right of an innocent 3 rd party ex BFPVLIWN, rectification will
be refused. The instrument cannot be rectified to prejudice the rights of a person who acquired an
interest under the instrument

E. REMEDIES - Rescission
1. Rescission is the remedy by which one party to a transaction may set aside that transaction, and be restored
to his original position- restitutio in integrum. The transaction may be and is often a contract; but it may be
available in other cases including settlement, gifts releases and other unilateral transactions.
a. Abram Steamship Co. Ltd. V. Westville Shipping - Strictly speaking, rescission is not a judicial
remedy but the act of the party entitled so to do. But since the parties usually seek the assistance of
the courts detailed rules have been developed, particularly in regard to the restitution of property.
b. Johnson v Agnew [1980] AC 367 at 392, held that rescission has another notion, where a contract is
treated as never having come into existence in law, due to mistake, fraud, undue influence or lack of
consent- rescission ab initio
2. The right to rescind is the right of a party to a contract to have it set aside and to be restored to his former
position. The contract remains valid unless and until rescinded, so that, third parties may acquire interests
under it in the meantime. Rescission in the strict sense must be distinguished from contracts void ab initio,
for example on the grounds of illegality. And on the other hand from contracts with no inherent invalidity
but which are subsequently discharged by breach.
3. Role of equity in rescission:
a. Equity will set aside a contract in circumstances where the common law would not.
b. Equity is more flexible in its view of restitutio in integrum, and can effect what is necessary, for
example by ordering accounts and inquiries,
 c. Equity can grant relief on terms, by applying the maxim ‘he who comes to equity must do equity’.
The party rescinding is entitled to be restored to the position he would have been in had the contract
not been entered into. He cannot recover damages, as that would put him in the position he would
have been in had the contract been performed.
4. Grounds for misrepresentation includes:
a. Mistake – If two parties enter into a contract and one makes a mistake concerning it, the general
principle is that behind the maxim caveat emptor; a party who knows he is making a better bargain
than the other is under no obligation to divulge that fact. A party who wishes to secure a form of
guarantee as to any aspect of the transaction must raise the matter at the time and have it dealt with
on the basis of representation or a term of the contract. However, this is subject to some limits even
at common law.
i. For instance, a party cannot remain silent when he knows the other party is mistaken as to
what the actual terms of the contract are Smith v Hughes or
ii. in certain cases of mistake as to the identity of the person contracted with –Ingram v little (3
sisters sell car to person who reps himself as PGM Hutchinson. Turned out he’s a rogue, he
sells car to another. Court held that because the vendors had refused to hand over the cheque
until the id was shown, they had believed themselves to be contracting with PGM
Hutchinson and no one else, as it was a mistake, contract void, swindler got no title.
iii. Generally speaking the mistake of the plaintiff is no ground as such for rescission, but only
when coupled with, example a misrepresentation that induced it- Edgington v Fitzmaurice -
The directors of a company induced the plf to lend money to the company, by issuing
prospectus, that stated that the objects of the issue of debentures were to complete alterations
in the buildings of the company, to purchase horses and vans and to develop the trade of the
company. The real object of the loan was to enable the directors to pay off pressing
liabilities. Plf stated in his evidence that he would not have advanced his money but for such
belief, but that he also relied upon the statements contained in the prospectus: Held: the
misstatement of the objects for which the debentures were issued was a material
misstatement of fact and a misrepresentation of the intention of the company.
iv. In the absence of misrepresentation, the general principle is that, in order to justify rescission,
the mistake must be common to both parties.
1. Riverlate Properties ltd v. Paul it is said that such a mistake must be so fundamental
as to render a contract based on it void.
2. Cooper v. Phibbs, Cooper agreed to rent a salmon fishery from Phibbs, who was a
trustee of a settlement. But the fishery had in fact already descended under an entail
to Cooper. It had been generally believed that the fishery was not subject to the entail
and, in this belief, substantial sums had already been spent in improving it by
members of the family now represented by Phibbs. Cooper brought an action
requesting cancellation of the agreement upon suitable terms. The House of Lords
held: If parties contract under a mutual mistake and misapprehension as to their
relative and respective rights, the result is, that that agreement is liable to be set aside
as having proceeded upon a common mistake.
3. Solle v. Butcher, a flat was leased for 7 years on an erroneous assumption by both
parties that structural alterations had taken the premises out of the provisions of the
Rent Restriction Acts imposing rent control. The lessee sued to recover rent paid in
 excess of the amount permitted by the Act. He failed. The landlord obtained
rescission of the lease on ‘just and equitable’ terms on the ground of mistake.
b. Fraudulent misrepresentation - A representation is fraudulent if the statement:
i. Is a false statement of fact;
ii. Made knowingly or without belief in its truth
iii. or made recklessly;
iv. Or without caring whether it is true or false, and
v. With intent that it be relied upon;
vi. Which is in fact relied upon by the representee.
vii. Smith v Land & Housing Corp: Plfs = mortgagees with power of sale, advertised hotel as
being “let to a most desirable tenant”. The defendants bought the property, but it turned out
that the vendor knew that the said tenant was often long in arrears of his rent and he later
went into liquidation. The defendants refused to complete the transaction and the plfs brought
an action for specific perf. Held: on evidence, it was clear that by the insertion of the “let to a
most desirable tenant” the vendor impliedly stated that he knew facts which justified his
opinion. A reasonable man, with his knowledge of the facts, could not have reasonably held
such an opinion. The statement amounted to a misrep and the defs were entitled to rescind
the contract
c. Contract uberrimae Fidei - If one party in a contract is in a stronger position to know the facts more
than the other party, the latter may be permitted to rescind the contract if he is not fully informed.
Typical examples are contracts of insurance
i. Lambert v Co-operative Insurance Society, family settlements and arrangements
d. Silence as misrepresentation - However, silence does not constitute misrepresentation unless it
creates a false impression by distorting the meaning of any positive statement, or unless there is a
duty of disclosure because it is a contract uberrimae fidei, such as contracts of insurance of all kinds,
and contracts for family settlements.
i. Gordon v. Gordon a deed of settlement of property within a family was entered into by an
eldest son in the belief that he was illegitimate, though a younger son knew of a secret
marriage of his parents by virtue of which the eldest son was legitimate. Lord Eldon held that
a duty of candour recognized in equity had been breached so that the settlement should be set
aside. However, is not every failure to disclose would result in the setting aside of the order.
The test was whether the order was substantially different from that which would have been
made upon full disclosure.
e. Innocent misrepresentation - Is where the dfd honestly believes in the truth of his assertion, even if
he had no reasonable grounds for his belief. As far as innocent misrepresentation was concerned,
equity’s jurisdiction depended on the force of misrepresentation on the plaintiff’s mind rather than
the mental state of the defendant when he made it, or on the relative importance of the fact
misrepresented to the contract as a whole. Thus a plaintiff seeking rescission on this ground did not
have to prove negligence or any other degree of fault in the defendant but only the fact of his own
reliance on the statement, and its untruth.
i. Peek v. Derry - Plf claimed defs had misrepresented in the prospectus that the company had
the right to use steam or other mechanical power, when in fact they had no such right, but
only a contingent possibility of obtaining that right dependent on the consents of the
authority responsible, which consents were subsequently refused as to a most material
portion of the line. The respondent, on the faith of the prospectus, applied for 400 shares in
 the company, which were allotted to him. The company was compulsorily wound-up.
Rescission was granted, held further: where rescission is claimed it is only necessary to
prove that there was misrepresentation. Then, however honestly it may have been made,
however free from blame the person who made it, the contract, having been obtained by
misrepresentation, cannot stand.
ii. Smith New Court Security Ltd v Scrimgeour Vickers (Asset Management)
iii. Low v. Bouverie - where he once knew the true facts but has forgotten of them as in
f. Undue influence - Actual threats or physical duress are remedied both at law and in equity, but
equity’s view is the wider. Where threats have made it impossible for a plaintiff to operate as a free
agent:
i. Williams v Bayley - where a father executed a mortgage in favour of his son’s bankers in
order to prevent the threatened prosecution of his son for forgery of bills held by the bank,
the mortgage was rescinded because of express undue influence
ii. Lloyds Bank v. Bundy, the Court of Appeal set aside a guarantee by old Mr. Bundy of the
overdraft of his son’s company, and a mortgage of all his assets. He was reliant in the matter
on the Bank, which should have recommended him to take independent legal advice. This
case illustrates the fact that undue influence may be exercised by a corporation, although
there may be no special personal relationship with any individual representative.
iii. Allcard v. Skinner (woman joins religious sisterhood and makes gifts to them, she leaves the
sect and sues to get the gifts back), and other situations where it is shown that a similar
relationship of confidence existed. Certain relationships give rise to the presumption of
undue influence such as parent, child, guardian and ward, doctor and patient, religious
adviser and pupil. However, the presumption of undue influence can be rebutted by
establishing insistence on independent legal advice; it may also be rebutted by showing that
the gift was a ‘spontaneous and independent act.’
iv. National Westminster Bank v. Morgan, where, on the special facts of the case, it was held
that a relationship of confidentiality existed between a bank manager and customer, resulting
in the setting aside of a mortgage executed without independent legal advice. The Court of
Appeal summarized the principles as follows. The presumption of undue influence arises
whenever there is a transaction between persons who have a relationship of confidentiality.
Such relationships have no defined limits and may be categorized as situations where one
party relies on the guidance or advice of another, who is aware of that reliance and stands to
benefit in some way from the transaction, and where there also exists an element of
confidentiality going beyond that between normally trustworthy persons dealing with each
other in a business transaction at arm’s length. Once such a relationship is established and the
presumption raised, the court, for reasons of public policy, will set aside the transaction
unless the defendant can show that he had ensured that the plaintiff had formed an
independent judgment after full, free and informed thought. The plaintiff need not show that
the transaction was manifestly disadvantageous.
g. Unconscionable Bargains - Equity intervenes to set aside unfair transactions made with ‘poor and
ignorant’ persons. It is not enough to show that the transaction was hard and unreasonable. The
following elements must be established.
i. First, that one party was at a serious disadvantage to the other by reason of poverty.
 ii. Secondly, that this weakness was exploited by the other in a morally culpable manner and
thirdly, that the transaction was not merely hard, but oppressive. Similar principle applies in
unconscionable bargains with reversioners or ‘expectant heirs’
5. Barriers to rescission
a. Affirmation: where the party entitled to rescind affirms the contract. E.g by taking a benefit under it,
with knowledge of the facts giving rise to the right to rescind and of his legal rights he will be taken
to have waived that right.
b. Restitutio in Integrum not possible: A contract will cease to be capable of rescission if the parties
can no longer be restored to their original position Erlanger v. New Sombrero Phosphate Co.
c. Third party acquiring rights: The right to rescind is lost if an innocent third party acquires an interest
under the contract for value before the plaintiff seeks to set it aside.- Phillips v Brooks, Cundy v.
Lindsay
6. Effects of rescission –
a. A person who rescinds a contract is entitled to be restored to the position he would have been in had
the contract not being made. Hence property must be returned, possession given up; and accounts
taken of the profits or deterioration but no damages are recoverable; since the purpose of damages is
to restore the person in the same position in as much as money can do so.
i. Redgrave v. Hurd –
b. A vendor who rescinds on account of the purchaser’s default may forfeit and retain any deposit
already paid, but cannot recover any unpaid part deposit. Because there is a difference between
forfeiting money paid as a pledge and to seek to enforce an obligation under a contract that has been
rescinded.
i. Lowe v. Hope –

F. REMEDIES – Accounts:
1. Accounts - An Account is a process by which the court assesses sums due from one person to another; and it
also describes the remedy of payment that is ordered by the court at the end of the assessment process.
Anim-Addo & Ors v. Mensah & Ors and the appeal Anim-Addo & Ors v. Mensah & Ors. Jurisdiction for
Account are twofold:
a. An Account in aid of an equitable right; for example a cestui que trust (beneficiary) could obtain an
account from his trustee, or a mortgagor from his mortgagee in possession, as well as a
remainderman could ask for account from his tenant for life who has committed equitable waste.
i. Duke of Leeds v. Earl of Amherst – Account is now more useful as a remedy for purposes
that may be ordered in favour of a beneficiary against a defaulting trustee.
ii. AG V. Guardian Newspaper - An order for account is also useful for requiring a dfd to
disgorge profits made from unauthorised use of confidential information as in
b. Account in aid of a legal right: where an order of account could be made in a number of relational
situations such as Principal and Agent, Mutual Accounts, as incidence of an injunction, spouses, and
covenants.
c. It is a defence that the parties have already in writing stated and adjusted the items of the account
and struck the balance and settled by payment. In case of a mistake, accident or fraud in the
statement of the account equity will not allow the account to be conclusive upon the parties. In cases
of fraud or serious errors equity will direct the account to be opened and taken afresh; and in other
cases the ptiff will be given the liberty to surcharge and falsify. The effect is that it leaves the
 account in full force as a stated or settled account. But it can be impugned by the ptiff who has the
burden of proving errors and mistakes

G. INJUNCTIONS
1. An injunction is an order of the court to a party to do or refrain from doing a specified act. And where it is
used at protecting some property it is also directed at the agents, servants, workmen, successors and assigns.
2. It will normally be issued when the conduct of the party is likely to cause such injury to the opponent such
that damages cannot adequately compensate him. That is .why it is often sought when the act is merely
threatened.
3. It may also be obtained during the pendency of a case to maintain the status quo until final determination of
the rights of the parties in the litigation. In this case it is interim or interlocutory.
4. Like all equitable remedies it operates in personam. An order to a particular individual or individuals to do
or refrain from doing an act. Failure will amount to contempt and contemnor can be imprisoned
5. An injunction could be perpetual or interlocutory it can also be prohibitory or mandatory. It is prohibitory
if it enjoins the dfd to abstain or refrain from a particular act or conduct. The latter is an order which
requires the dfd to do an act.
a. Interim/ interlocutory injunctions- preserves the status quo, pending a hearing/ until a final
determination of the suit.
b. Perpetual/permanent injunction: granted once the plaintiff’s right has been established, to protect his
enjoyment of that rights. It permanently restrains the unsuccessful party from doing that which the
court orders.
6. As with all remedies, damages must be inadequate to compensate the plaintiff. If the conduct sought to be
restrained can adequately be compensated by the award of damages, no injunction will lie.
a. Wood v. Sutcliffe -‘the very first principle of injunction law is that prima facie you do not obtain
injunctions to restrain actionable wrongs, for which damages are the proper remedy’.
b. However, there a number of situations in which damages will be inadequate.
i. Hodgson v Duce - where damages will be useless as in the case of an impecunious dfd
ii. AG v Harris - continuing nuisance; and infringement of trademarks, or where the amounts
are so small that they are easily payable
iii. London & Blackwall Rly v Cross,
iv. Anton Piller v Manufacturing processes Ltd
7. Governing principles – American Cynamid v. Ethicon - As to that, the governing principle is that the court
should first consider whether if the plaintiff were to succeed at the trial in establishing his right to a
permanent injunction he would be adequately compensated by an award of damages for the loss he would
have sustained as a result of the defendant's continuing to do what was sought to be enjoined between the
time of the application and the time of the trial. If damages in the measure recoverable at common law
would be adequate remedy and the defendant would be in a financial position to pay them, no interlocutory
injunction should normally be granted, however strong the plaintiff's claim appeared to be at that stage.
a. Plaintiff must establish a right - Before a ptiff can obtain an injunction against his opponent, he must
show that he has a right in himself which is to be protected by an injunction.
i. Maxwell v. Hogg (1867) Ch. App. 307. Hogg earlier registered an intended magazine by
name Belgavia, unknown to Maxwell he spent some money advertising a new magazine
bearing the same name. An application from Hogg to prevent Maxwell from using the name
was refused. It was held that by merely registering a title for intended publication did not
give him any copyright in that name, therefore there was no legal right there to protect.
 Turner, LJ indicated that, in order to obtain an injunction against the dfd, ‘the first principle
which applies, not only to this case, but for every case in this court, is, that the plaintiff must
show some property, right, or interest, in the subject matter of his complaint’.
ii. Musicians Union of Ghana v Abraham,
iii. Day v Brownrigg
iv. Thorne v. BBC per Lord Denning ‘it is a fundamental rule that the court will only grant an
injunction at the suit of a private individual to support a legal right’.
v. The legal right sought to be protected need not be based on property, an injunction may be
granted to restrain the publication or revelation of confidential information or communication
as in Ashburton v. Pape [1913] 2 Ch. 469. Also see Fraser v. Evans [1969] 2 Q.B 349; P.A.
Thomas & Co Ltd. V. Mould [1968] 2 Q.B. 913 (on confidential commercial information);
Argyll v. Argyll [1965] 2 W.LR 790 (on husband and wife).
b. Public right - Where a statute is broken or some other public right is infringed, the Attorney-General
is the proper person to sue for an injunction.
i. In A-G V. Sharp [1931] 1 Ch. 121, the dfd had applied but refused a licence to operate an
omnibus within the city of Manchester. The law provided for fines for operating without a
licence. The dfd continued to operate in breach of the law and was comfortable paying the
fines. At the suit of the A-G, an injunction was granted against the dfd since remedies
provided under the law were ineffective.
ii. Also see article 88 (5) of the 1992 Constitution.
8. Barriers to injunction
a. Cessure of Annoyance- CFC Construction Co. v. Accra City Council - ptiff complained that the dfd
Council had been dumping garbage and refuse near their residential Area. There was stench and
offensive smell and sought an injunction to restrain the dfd from the dumping. Dfd Council
submitted that before the application came up for hearing, the smell had ceased and that further
dumping had ceased. Archer J (as he then was) held it to be a temporary interference, though it was
actionable, injunction was not the appropriate remedy in the circumstances of that case. He gave the
ptiff 6 months to apply for an injunction if after the expiration the nuisance still prevailed.
b. Conduct of Plaintiff (any of the clean hands cases/seeking equity cases will do), sometimes
conduct in court-
i. Armstrong v Sheppart & Short Ltd- the plf misled the court by denying that he had given an
oral permission for sewers to be laid on his land. The court found out n on this basis refused
the injunction.
ii. Sayers v Collyer- plf sought an injunction to restrain the use of premises as a shop, but it was
found that he himself had bought goods there. Also if he has acquiesced/ committed any
laches- if by the plf’s conduct it can be inferred that he has waived his rights, court wont
grant the injunction
c. Difficulty in compliance- if cost is unreasonable on dfd, the court may refuse to exercise its
discretion- Redland Bricks Ltd v Morris
d. Other grounds that impact discretion
e. undertaking in damages by the plf
i. Proctor v Bayley
ii. Barber v Penley
iii. Jenkins v Hope
9. Interlocutory injunctions - Some times referred to as interim injunctions, is an injunction obtained after the
commencement of a substantive action in court but before final determination of the suit. It is effective only
up to the final determination of the suit.
a. Jones v. Pacaya Rubber and Produce Co. Ltd - Its main aim is to prevent irreparable damage from
being done after commencement of the action and before judgement. The idea is to maintain the
status quo, until final determination of the case.
b. Punjabi Bros. v. Namih - This injunction is at times granted to facilitate the administration of justice.
For instance where the tittle to land turns crucial on the identification of boundaries marked by
exiting farms or clearings, it may lie to restrain entry upon the land so that material evidence may be
preserved.
c. Lardan v. A-G, where an interim injunction was granted to restrain the execution of a deportation
order. At times an interim injunction is granted in order not to render the final judgment nugatory
d. Agyei & Ors v Similao - An application for interim injunction is by a motion supported by an
affidavit stating the facts of the case for consideration of the court. The dfd replies by an affidavit in
opposition stating why it should not be granted. The motion is normally on notice.
e. Where there is urgency in the matter it can be made Ex Parte, and if granted it will be for a limited
time and application repeated on notice to give the other party a hearing in the matter.
f. Barclays Bank of Ghana Ltd. v. Ghana Cable Co. Ltd, an Obiter per Justice Kpegah JSC (as he then
was) to the effect that ex parte applications are to be resorted to only in cases of extreme emergency,
where the interest of justice requires that the court should intervene immediately without notice to
the party affected. This should be a situation where it would be improper or imprudent to give notice
to the other party. He suggested further that the order should be for a very limited period of about 7
days. Where the circumstances require it an interim injunction may be granted against both parties
and not only the respondent.
10. Need for prima facie case?
a. The earlier position had been that an applicant for interim injunction must disclose a prima facie
case for the relief; As observed by Cotton LJ, in Preston v. Luck (1884) 27 CH. D 497 that ‘’…
though the court is not called upon to decide finally on the rights of the parties, it is necessary that
the court is satisfied that there is a serious question to be tried at the hearing and that upon the facts
before it there is a probability that the plaintiffs are entitled to the relief’.
b. In the Lardan Case, interim injunction was discharged because the applicant could not disclose a
prima facie case of Ghanaian Citizenship. Sarkodee-Addo J (as he then was) extended the notion of
prima facie case rather too widely from having a fair question to raise at the trial to he will probably
succeed in the final suit, in the Punjabi Bros. Case.
c. The Punjabi Bros. Case was not followed in Annobil v. Annobil (1960) C. C. 27 . The Ptiff had
applied for an interim injunction to restrain the Dfd from further management of a disputed property.
The application was opposed on the ground that the Ptiff’s Writ was defective, indicating that the
applicant was going to fail in the final issue. The application was granted by Owusu J, Who held that
in an application for interlocutory injunction the Ptiff does not have to show he would be entitled to
relief at all events, but that the evidence before the court shows a prima facie case for relief.
d. In 1975 the House of Lords swept away the prima facie requirement in American Cyanamid Co. v.
Ethicon Ltd. [1975] A.C. 396, which held that the plaintiff need establish only a real possibility of
success and not a probability. After the American Cyanamid Case, a number of questions were
developed to be considered in granting an interim injunction:
 i. Real Prospect of success- That the ptiff claim is not ‘frivolous and vexatious’ and that there
is a ‘serious question to be tried’. If this hurdle is not cleared, that ends the matter. See Re
Lord Cable [1977] 1W.L.R 7. And if this hurdle is cleared the court next considers;
ii. Balance of Convenience- If compensation will be adequate and dfd can pay it will not be
granted; it will next consider if Dfd were to win the substantive case will damages be
adequate and can the ptiff pay. If this can be done it will not be a bar in granting the
application notwithstanding dfd’s prospects of success. And if there is doubt about the
adequacy of the respective remedies in damages available to both parties then each case has
to be considered based on other factors and merits of each case.
iii. Status Quo- Where other factors are equally balanced it is a counsel of prudence to take
measures to preserve the status quo. A new venture on the part of the dfd may be restrained
but not an established enterprise.
iv. Relative strength of the Cases- Court should not embark on anything like a trial on
conflicting affidavits. But where there are undisputed facts, then the strength of one party’s
case is disproportionate to the other and that should be considered to decide the balance. See
The Quaker Oats Co. v. Alltrades Distributors Ltd. [1981] F.S.R 9.
v. Special Factors- These factors only relates to the balance of convenience. An injunction will
not be granted as in the Cyanamid Case where it would deprive the public of an essential
drug.
e. Ghana: The 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. The question for consideration in that regard resolves itself into
whether on balance greater harm would be done by the refusal to grant the application than not. It is
not whether a prima facie case however qualified and with whatever epithet, has been made.
f. See 18th July Ltd. V. Yehans International Ltd. [2012] SCGLR 167 at 168, Anin Yeboah JSC, held
that granting a interim injunction was discretionary and must be guided by the following principles:
i. Consider whether the case of the applicant was not frivolous and had demonstrated that he
had a legal or equitable right which the court should protect;
ii. Ensure that the status quo was maintained so as to avoid any irreparable damage to the
applicant pending the hearing of the matter; and
iii. Consider the balance of convenience and should therefore refuse the application if its grant
would cause serious hardships to the other party.
g. Also see Dr. Date-Bah JSC (as he then was) in Welford Quarco v. Attorney-General [2012] ‘It has
always been my understanding that the requirements for the grant of interlocutory injunctions are:
i. first, that the applicant must establish that there is a serious question to be tried;
ii. 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
iii. finally that the balance of convenience is in favour 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 public law (original emphasis), particular care must be taken not to
halt the 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.
 h. Also see Ransford France (No. 1) v. Electoral Commission & Attorney-General, where Ansah JSC,
refused to grant an interim injunction because: A public authority should not be restrained by an
interlocutory injunction in the performance of its statutory functions unless the plaintiff can show
there is a real prospect that he would succeed in his claim for a permanent injunction at the trial.
11. Summary: Serious question to be tried (not frivolous/ vexatious), Balance of convenience, Irreparable
damage not remedied by damages if not granted
12. Kinds of interlocutory injunction
a. Mandatory Injunctions: The court has jurisdiction to grant a mandatory injunction on an
interlocutory application, but will seldom do so. See Blakemore v. The Glamorganshire Cana
Navigation (1832) 1 My. & K. 155. The Court usually requires a high degree of assurance that at the
trial it will appear that the injunction was rightly granted. However, in case of infringement of a right
of light the court has compelled the dfd to pull down the building where he was hurrying to complete
the building after being served with notice of proceedings as in Mathias v. Davies [1970] E.G.D
370; or has evaded service of a writ as in Luganda v. Service Hotels Ltd. [1969] 2 Ch. 209.
b. Freezing Orders formerly known as Mareva Injunctions: Generally the court will not grant an
injunction to restrain a dfd from parting with his assets pending trial. The ptiff needs to obtain his
judgment and enforce it. But in 1975, the CA in the UK introduced a limited exception to this
principle by granting ex parte injunctions restraining dfds from disposing of or dealing with any
assets within the jurisdiction of the court. See Barclay-Johnson v. Yuill [1980]. Such an injunction
will also be issued against removing or disposing out of the jurisdiction moneys standing to the
credit of the dfds as in Mareva Compania Naviera S.A V. International Bulk Carriers S.A. Such
Injunctions are now more frequently granted more in Commercial Courts. The Following guidelines
have been laid down to guide the grant of Mareva Injunctions:
i. Disclosure: The Ptiff must make full disclosure of all matters to his knowledge which are
material for the judge to know as in Negocios Del Mar S.A V. Doric Shipping Corporation
S.A [1979] 1 Lloyd’s Rep. 331.
ii. Statement of the Case: Ptiff must state the ground of his claim against the dfd and its amount,
points against it made by the dfd
iii. Must have assets within the jurisdiction: The ptiff must give some grounds why he thinks the
dfd has assets within the jurisdiction, though he might not be that precise of the extent of the
assts.
iv. The existence of a bank account within the jurisdiction is enough even if it is in overdraft.
See Third Chandris Shipping Corporation v. Unimarine S.A [1979] Q.B 645.
v. Risk of Removal: Ptiff should give some grounds for believing that there is a risk of removal
before judgment is satisfied.
vi. Undertaking in Damages: Usual undertaking with damages must be given; quite often with
security or a bond
The form of the Order restrains the dfd from removing from the jurisdiction, or otherwise disposing
of or dealing with any of the assets within the jurisdiction, except such assets do not exceed the
value of Ptiff’s claim. See A.J. Bekhor & Co. Ltd. V. Bilton [1981] 2 W.L.R. 601. But such a wide
order made can later be varied i.e if the dfd needs to make payment in the ordinary course of
business or to provide for his living expenses or course of defending the action. See Iraqi Ministry of
Defence v. Arcepey Shipping Co S.A [1981] Q.B 65; and A. V. C (No.2) [1981] 2 W.L.R 634a
respectively.
 c. Anton Piller Orders: While a Mareva injunction restrains a dfd from dissipating his assets, an Anton
Piller Order prevents the dfd from destroying vital evidence before an issue comes to trial. It
requires the ptiff to enter dfd’s premises and search for, examine, remove or copy articles specified
in the order. The rationale for the Order was outlined by Lord Denning MR (as he then was) in
Anton Piller KG v Manufacturing Process Ltd. [1976] Ch 55 at 61 as:
i. Such an order can be made by a judge ex parte, but it should only be made where it is
essential that the ptiff should have inspection so that justice can be done between the parties
and … if the dfd was forewarned, there is a grave danger that vital evidence will be
destroyed …
ii. This decision was approved by the then House of Lords (now SC) in Rank Films
Distributors Ltd v Video Information Centre [1982] AC 380
iii. It is normally granted ex parte as the element of surprise is important. As was held in the
above Rank Film Case, ‘If the stable door cannot be bolted, the horse must be secured … if
the horse is liable to be spirited away’
iv. Preconditions for the Order:
1. There must be an extremely strong prima facie. This represents a much stronger
standard for the grant of interlocutory injunctions
2. The damage, potential or actual, must be very serious for the applicant
3. There must be clear evidence that the dfds have in their possession incriminating
documents or things, and that there is real possibility that they may be destroyed
4. Lord Denning was of the view that the order should be granted if it will do no harm
to the dfd
v. Limitations to grant of Order: Because of its essentially draconian nature to the dfd, there
are some limits in its grant:
1. An order must be served by an independent Supervising Solicitor accompanying the
ptiff, who must explain what it means to the dfd in plain everyday English. See ITC
Films Distributors Ltd v Video Exchange Ltd
2. The Order may only be served between 9:30 am and 5:30 pm on a weekday
3. Dfd can apply within short notice to vary or discharge the order, provided the ptiff
and supervising solicitor have been granted access to the premises.
4. Other limitations include giving list to dfd, search should be in his presence, and
undertaking by ptiff in damages for loss suffered in the search.
5. In addition, the order will not be granted if it requires the dfd to provide answers or
documents that are incriminating, based on the privilege against self-incrimination.
See IBM United Kingdom Ltd v Prima Data International Ltd
6. But when the law on self-incrimination was amended (s. 72 of the SC Act 1981), it
was held in Cobra Golf Ltd v Rata, that the dfd had no right to assert an entitlement
to a privilege against self-incrimination.
7. But the right not to incriminate one self by refusing to give evidence in criminal
matters is a human right under the Constitution. The issue is whether it extends to
civil matters.
13. Perpetual injunctions - Also known as a permanent injunction, is an order obtained after the Ptiff’s right has
been established and he has shown that there is an actual or threatened breach. It permanently restrains the
unsuccessful party from doing that which the court orders. Though of a permanent nature, the order subsist
and is contingent on the interest it seeks to protect. If the interest is permanent it will remain in force, but it
 will be vacated where the interest ceases. For example a permanent injunction on a lease will be vacated
where the lease determines. See Halsbury’s Laws of England, 4th ed. 1979, Vol. 24 p. 525 at par. 932.
14. Quia Timet Injunctions - A violation or infringement of the Ptiff may be threatened or feared though it has
not yet taken place. In such a situation it may be better to prevent the infringement than to wait for it to
occur before you go to court. As observed by Coke in colloquial English preventing justice excelleth
punishing justice, in Graigola Merthyr Co. Ltd. V. Mayor, Alderman and Burgesses of Swansea, [1928]
Ch.235. This injunction could either be interlocutory or permanent depending on the facts of the case.
a. In addition to all the considerations for granting injunctions, there is the additional need for the Ptiff
to prove that there is not only a possibility but a strong probability or an imminent danger of a very
substantial irreparable damage. In Mamudu Wangara v. Gyato Wangara, it was held that since
there was a strong probability of interference with the ptiff’s right over the house by the dfd, the
proper remedy was for a quia timit injunction.
b. There are challenges with this remedy as the court might find it difficult to determine whether or not
the Ptiff is crying ‘Wolf’ when there is none. In In re Anderson-Berry, an administrator was
restrained by quia timet relief from distributing the estate without provision for the possibility of
liabilities of the estate. The applicant had reasonable grounds for anticipating a jeopardy owing to a
threat by the administrator, which persisted up to the point of issuing the writ.
c. The decisions of the courts are at times difficult to reconcile.
i. In Attorney-General v. Nottingham Corporation, the Dfd Corporation planned to built a
smallpox hospital between some 48 to 157 yards of a residential area. An injunction was
sought against the corporation as the project was likely to pose a health hazard to the
residents. The injunction was refused because there was no proof of actual and real danger.
ii. Sometimes an injunction is refused because of assurances from a responsible body to take the
necessary steps to avoid a nuisance. In Bridlington Relay Ltd. v. Yorkshire Electricity Board.
The Ptiff Company had erected a mast on their land for TV and Radio business. The dfd
erected an overhead electricity power line very close to the mast. In an application for an
injunction to restrain the dfds for fear that the power line will interfere with transmissions.
The dfd gave an assurance that every effort would be made to prevent interference. The
assurance was accepted as satisfactory and the quia timet injunction was refused.
15. Under Order 25 R. 9(1) and (2), a person applying for an interlocutory injunction may be required to make
an assurance to pay damages to the respondent if it turns out he was not entitled to the relief.
a. In the Republic v High Court, Koforidua; Ex parte Ansah-Otu [2009] SCGLR 141 at 147-8; Ansah
JSC, stated that the failure of Court to comply with the mandatory terms of O. 25 r. 9 (1) and (2)
constituted an error apparent on the face of the record and judgment was quashed
b. In Kofi Manu v Akosua Agyeiwaa & 3 Ors, Civil Appeal N0. JA/11/2012, dated 26th July, 2013, it
was held by Akamba JSC, that the Court would not ordinarily grant any relief which a party has not
formally asked. The only instance, when a relief has been, so to speak, granted without specifically
being asked for is an instance when the relief emerges from or is apparent from the evidence on
record. Also see Brobbey JSC (as he then was) in Republic v High Court (Human Rights Division)
Accra; Ex parte Akita (Mancell-Egala & AG Interested Parties), [2010] SCGLR 374 at 386.
c. These Ghanaian Cases suggest the remedy need not be pleaded in some circumstances.

H. CASES
1. Anton Pillers v. Manufacturing Processes Ltd
 a. Facts - The plaintiff, Anton Piller KG, a German manufacturer of high repute, discovered that the
defendant. Manufacturing Processes Ltd, an English company, was in secret communication with
other German companies, Ferrostaal and Lechmotoren. The defendant disclosed confidential
information to the German companies and was negotiating with Canadian and United States firms.
Anton Piller KG feared that the defendant, in cooperation with the German manufacturers, would
make a copy of their "Silent Block" and ruin their market. Anton Piller KG applied to the Court
for an injunction to restrain the defendant from infringing their copyright or using confidential
information or making copies of their machines. Mr Justice Brightman granted an interim
injunction, but refused to order inspection or removal of documents. The plaintiff appealed.
b. Issues:
i. Is there jurisdiction to make an ex parte Order without prior notice to the defendant?
ii. Is the proposed Order necessary in the interests of justice?
iii. What is the extent of the Court's powers in making such an Order?
c. Decision: The Court of Appeal allowed the appeal and granted the Order sought by Anton Piller KG.
d. Reasoning: The Court held that there is jurisdiction to make an ex parte Order without prior notice
to the defendant in extreme cases, where there is grave danger of property being smuggled away or
of vital evidence being destroyed. However, the Court must act with due circumspection in
enforcing such an Order. The proposed Order is at the extremity of the Court's powers and is an
Order on the defendant in personam to permit inspection. It is therefore open to him to refuse to
comply with such an Order, but at his peril either of further proceedings for contempt of Court or of
the refusal to comply being the most damning evidence against the defendant at the subsequent trial.
The Court further held that the Order sought by Anton Piller KG is necessary in the interests of
justice, as the defendant was in secret communication with other German companies and was
disclosing confidential information to them. The plaintiff feared that the defendant would make a
copy of their "Silent Block" and ruin their market. The proposed Order is therefore necessary to
prevent the defendant from infringing the plaintiffs copyright or using confidential information or
making copies of their machines. The Court also held that the extent of the Court's powers in making
such an Order is to permit inspection. It is not a search warrant. The defendant may refuse to comply
with such an Order, but at his peril either of further proceedings for contempt of Court or of the
refusal to comply being the most damning evidence against the defendant at the subsequent trial.
2. Mareva Compania Naviera SA v. International Bulk Carriers SA:
a. Facts: The plaintiffs, Mareva Compania Naviera SA (“the Shipowners”) owned the vessel, “the
Mareva”. The Shipowners issued a writ on 25 June 1975 claiming against the defendants,
International Bulkcarriers SA (“the Charterers”), unpaid hire and damages for repudiation of a
charterparty. On an ex parte application, Donaldson J granted an injunction until 23 June 1975
restraining the Charterers from removing or disposing out of the jurisdiction moneys standing to the
credit of the Charterers’ account at a London bank. Donaldson J felt that he had no power to grant an
injunction due to the Shipowners not having a judgment for the debt but granted an injunction until
23 June 1975 to allow the Court to be able to reconsider the position. The Shipowners appealed
against Donaldson J’s refusal to extend the injunction beyond 23 June 1975.
b. Issues:
i. Did the Court have the power to grant a Mareva injunction despite no judgment debt?
c. Held: The Court granted the order requested making use of the jurisdiction given to it by the
Supreme Court of Judicature (Consolidation) Act 1925 (UK) (“the Act“). The Act allowed for a
mandamus or an injunction to be granted or a receiver appointed by an interlocutory order of the
Court in all cases in which it is just or convenient. The order could be made even though it dealt with
assets in which the plaintiff claimed no direct right. In Beddow v Beddow, Jessel MR provided a
wide interpretation to that section, stating that “I have unlimited power to grant an injunction in any
case where it would be right or just to do so … ” An injunction cannot be granted where there is no
legal or equitable right to do so. Lord Denning MR: “If it appears that the debt is due and owing,
and there is a danger that the debtor may dispose of his assets so as to defeat it before judgment, the
court has jurisdiction in a proper case to grant an interlocutory judgment so as to prevent him
disposing of those assets.”