A: Introduction
On 1st October, 2020, the Rules of
Court Committee made certain changes in the rules of procedure that guide how
appeals are filed and heard before the superior appellate courts, that is, the
Court of Appeal and Supreme Court in Ghana. The Rules entered into force on 9th
November, 2020. The new changes made, especially in the Court of Appeal Rules,
have radically transformed the appeal process and it is yet to be seen how
these changes will affect the rights of parties before our appellate courts; for
better, for worse or neither.
B: Court of Appeal Rules – Changes introduced by C.I 132[1]
The changes that have been made in
the Court of Appeal Rules are discussed below.
Changes to Rule 27
1.
Application for stay of execution to be filed at the Court of Appeal. –
Under the new amended rules, a person who files a civil appeal and wants the
execution of the judgment or order stayed until the final determination of the
appeal must file the application for stay of execution at the Court of Appeal
and not at the trial court that first handled the case, that is, the Circuit
Court or High Court.
Previously, a person who appealed
from a lower court to the Court of Appeal needed to file for stay of execution
first, at the lower Court. It was only when the lower court refused to grant
the stay or granted it with onerous conditions that were tantamount to a
refusal that the party had to repeat the application at the Court of Appeal.
2.
Automatic stay of execution shall be for seven days after the judgment
or decision. – Under the new amended rules, there is only one automatic stay of
execution for seven days after the judgment or decision is given by the lower
court. Previously, there was an automatic stay of execution for seven days
after the judgment or decision was given by the lower court plus another period
of seven days if the trial court refused to grant the application for stay of
execution pending appeal.
I believe the further automatic stay
for seven days after the refusal by the trial court has been taken off the
Rules because the right to make the application to the trial court in the first
instant has been taken away.
3.
Application for stay of proceedings pending appeal has been taken out of
the Rules. - It is interesting to observe that applications for stay of
execution and stay of proceedings were hitherto treated like ‘Siamese twins’ in
Rule 27. However, the most significant change introduced by C.I 132 is that,
Rule 27 is now silent on applications for stay of proceedings pending appeal.
The question is: should parties not
have the option to apply for stay of the proceedings in respect of which they
have filed appeals? In my considered view, most appeals will be rendered
nugatory if proceedings are not stayed at the trial court to abide the
determination of the appeal by the Court of Appeal.
Considered differently, one may argue
that by omitting stay of proceedings from Rule 27, the import is that an appeal
shall operate as stay of proceedings. It will be interesting to see how the
Court of Appeal applies its new nebulous Rule 27 to decline jurisdiction in
applications for stay of proceedings pending appeal. In the event that the
Court of Appeal allows applications for stay of proceedings, then just like its
twin sister application for stay of execution, the application ought to be
brought before the Court of Appeal and not the trial court.
Changes to Rule 27A
No grant of stay of proceedings in
interlocutory appeals, whether civil or criminal. The entire Rule 27A has been
revoked. This means that, a party cannot apply for, and the Court of Appeal
cannot grant, stay of proceedings in interlocutory appeals in all cases,
whether civil or criminal. A little history about the now-revoked Rule 27A will
help to throw light on the discussion. Rule 27A was not originally included in
the Court of Appeal Rules of 1997[2]; it was introduced into the Rules a year
later, in 1998, by C.I 21. It is unclear what mischief, if any, Rule 27A caused
in the adjudication of appeals in the last 22 years to warrant being jettisoned
in its entirety. This is a worrisome development and it savours of a
reincarnation of Ex parte Abodakpi[3]
in a much worse form.
In the recent 2018 Supreme Court case
of Ex parte Magna International Transport
Ltd,[4] the apex court seized the opportunity to depart from its previous
decision in Ex parte Abodakpi. In Ex parte Abodakpi, their Lordships had
held that the High Court had no jurisdiction to entertain an application to
stay proceedings when an interlocutory appeal had been filed at the Court of
Appeal. In departing from the said decision, the Supreme Court held in Ex parte Magna International Transport Ltd
that Rule 27A did not give exclusive jurisdiction to the Court of Appeal in
applications for stay of proceedings in interlocutory appeals and that, before
the transmission of the record of appeal, a party may apply first to the High
Court, failing which they may repeat the application before the Court of
Appeal. The decision in Ex parte Magna
International Transport Ltd was received as a welcome development as it
brought much needed succour to many a languid practitioner. It is intriguing,
therefore, that barely two years after the decision, the Rules of Court
Committee has revoked the entire Rule 27A and curtailed any jurisdiction the
High Court had under the Rules and Ex
parte Magna International Transport Ltd to entertain applications for stay
of proceedings pending appeal.
Now that Rule 27A has been revoked,
legal practitioners must be prepared for the unfortunate situation where
proceedings are not stayed pending interlocutory appeals, so cases are heard to
conclusion before the trial court, but judgment is given in favour of the
appellant by the appellate court, thereby rendering the judgment idle and
useless. Such was the situation that confronted the Supreme Court in the Footprint Solutions case[5]. In that
case, the plaintiff made part payment of GH₵20,000 towards the purchase of a
printer, but the printer could not work as expected so the plaintiff sued the
defendant at the High Court, Kumasi, for the recovery of the money paid. When
the defendant was served with the writ, he entered conditional appearance and
filed an application for the case to be transferred to Accra as that was the
place the defendant carried on business and the printer was to be used. The
High Court dismissed the application and the defendant filed an appeal against
the ruling at the Court of Appeal and also filed a motion for stay of
proceedings at the Court of Appeal. While the interlocutory appeal was pending,
the plaintiff applied for summary judgment at the High Court and the same was
granted. The defendant then filed another appeal before the Court of Appeal
against the grant of summary judgment and filed an application for stay of
execution pending appeal at the High Court. The result was that there were two
applications in the same matter pending at the same time – the one for the stay
of execution before the trial High Court and the other for a stay of
proceedings before the Court of Appeal.
The record showed that the
application for stay of proceedings before the Court of Appeal was filed first,
on 7th July, 2009. This was before the grant of the summary judgment by the
High Court on 22nd July, 2009. On 25th January, 2010, the Court of Appeal
ordered a stay of all proceedings in the High Court and rejected the argument
made by the plaintiff that there was nothing to stay in view of the High Court
having given final judgment in the case on 22nd July 2009 (per the application
for summary judgment). The plaintiff then appealed against this decision of the
Court of Appeal to the Supreme Court.
The Supreme Court held that the Court
of Appeal was justified in staying all processes in the High Court pending the
determination of the appeal. The Supreme Court went further to state that,
apart from the Court of Appeal’s jurisdiction under Rule 27A of C.I. 19 to
grant the order to stay the proceedings pending before the High Court, the
Court of Appeal could also exercise its inherent jurisdiction, which “is innate
to the Court itself” to grant the order for stay of proceedings.
If, as the Supreme Court held in the Footprint Solutions case, the Court of
Appeal’s jurisdiction to grant stay of proceedings pending an interlocutory
appeal is derived from both its inherent jurisdiction as well as the Rule 27A,
then it is submitted that, the Rules of Court Committee’s decision to revoke
Rule 27A from C.I 19 is largely academic. Parties may still be able to apply
for stay of proceedings pending the hearing of interlocutory appeals under the
inherent jurisdiction of the Court of Appeal. It is further submitted that, the
Rules of Court Committee did not think through the far-reaching ramifications
of their decision to revoke Rule 27A on the due process of law and the fair
administration of justice before embarking on that venture. It is left to be
seen how the revocation of Rule 27A will affect our citizens’ access to justice
in our appellate courts.
Changes to Rule 28
All applications made after an appeal
has been filed must be made to the Court of Appeal. Rule 28 of C.1 19 has been revoked.
Under the old Rule 28, whenever a party in any appeal proceedings wanted to
make an application and the party had the option of applying to the trial court
or the Court of Appeal, the party had to make the application first to the
trial court and if it was refused, then the party could repeat the application
before the Court of Appeal. However, with the revocation of Rule 28, as soon as
an appeal is filed, all applications to be made in the interim pending the
determination of the appeal must be made to the Court of Appeal. The trial
courts have been left in the cold in that regard. Again, just as the revocation
of Rule 27A, the revocation of Rule 28 makes nonsense of the Supreme Court’s
recent decision in Ex parte Magna
International Transport Ltd.
Changes to Rule 29
The issue of whether a decision or
order is final or interlocutory must be decided by the trial court and its
decision shall be final. Rule 29 has been amended. Therefore, the determination
of finality or otherwise of a judgment or order must be made by the trial
court. Whatever decision the trial court gives is final and binding on the
parties and must be used to determine the time within which an appeal may be
brought. Previously, such a determination could be made by the trial court or
the Court of Appeal.[6] But under the new amendment, the Court of Appeal’s
jurisdiction in deciding whether a decision or order is final or interlocutory
has been taken away.
In practice, most of the questions
regarding whether a decision is final or interlocutory for purposes of
determining the time for filing appeals are raised before and determined by the
trial courts as well as appellate courts. Consequently, the reason for
conferring jurisdiction for the determination of such issues solely on trial
courts in the new Rule 29 is not easily discernible. This is more so as the new
Rule 28 (discussed above) provides that as soon as an appeal is filed, all
applications to be made pending the determination of the appeal, including
applications for stay of execution, must be made to the Court of Appeal. At
what point then, will a party be able to file an application before the High
Court (or any other trial court) when there is an appeal pending before the
Court of Appeal?
Changes to Rule 34
No review of the decision of the
Court of Appeal even in exceptional cases. Rule 34 has been revoked. Under the
previous provision, the Court of Appeal could review its judgment or order
under exceptional cases and in the interest of justice. However, that
jurisdiction has now been taken away. This state of affairs is not surprising
because the previous provision was rarely used by parties. But all things
considered, should the rare usage of a provision be enough reason for its
revocation? I do not think so. One can never be sure of situations that may
arise in future that may necessitate the application of such rules.
For instance, I was recently involved
in a matter at the Court of Appeal in which the Court relied on a High Court
decision as the basis for its ruling. As if that was not bad enough[7], the
panel added that, that decision of the High Court had “not been appealed
against”. In fact, the panel was wrong as there had been an appeal pending
against the said High Court decision since 2018! Such a blatant blunder could
have been corrected on an application for review but now that Rule 34 has been
revoked, the affected party’s recourse only rest in a further appeal to the
Supreme Court, with its attendant costs and delays. To my mind, Rule 34 should
have been left to stand for whatever it is worth since other more obsolete
provisions such as taxation of costs are still part of the rules.
C: Supreme Court Rules – Changes introduced by C.I 131[8]
Changes to Rule 22
1.
An appeal shall not operate as stay of execution of the decision or
judgment unless the Supreme Court so orders. This means that an application for
stay of execution is to be filed at the Supreme Court. The Court of Appeal or
other appellate forum has no jurisdiction to entertain any such application any
more as it used to be the case previously.
2.
No provision is made for applications for stay of proceedings pending
appeal. It is interesting to observe that applications for stay of execution
and stay of proceedings were hitherto treated like ‘Siamese twins’ in Rule 20
of C.I 16[9] as it was in Rule 27 of C.I 19. However, the most significant
change introduced by C.I 131 is that, Rule 20 is now silent on applications for
stay of proceedings pending appeal.
The question is: should parties not
have the option to apply for stay of the proceedings in respect of which they
have filed appeals to the Supreme Court? In my considered view, most appeals
will be rendered nugatory if proceedings are not stayed at the previous
appellate forum or court to abide the determination of an appeal lodged at the
Supreme Court.
D: Conclusion and Other general comments on C.I 131, 132 and 133.
The first observation is the use of
“Court” in the Rules without any regard to the Interpretation sections of the
principal enactments. In both C.I 16 and C.I 19 for instance, “Court” means the
Supreme Court and the Court of Appeal respectively. Again, under both C.I 16
and C.I 19, “court below” means the court or body from which an appeal or other
cause or matter is brought and the court from which the appeal is brought
respectively. But, under C.I 131 and C.I 132, the words used are “Court”,
“court” and “Court below”, thereby creating a matrix of confusion and making
nonsense of the Interpretation sections. It portrays a job done in haste with
little attention to detail.
The second observation is the
publishing of the signatures of the Committee members in the Rules as issued
and sold to the general public. That is a most dangerous oversight that ought
to be rectified as soon as possible. In this day and age of the use of
electronic signatures, any signatures carelessly exposed in the public domain
could easily become fodder for criminals.
In conclusion, it is unclear what
policy or procedural reasons were behind some of the changes and revocations in
the Rules. Perhaps, a webinar by the Rules of Court Committee to throw light on
the factors that informed the changes will be very useful.
Postscript: The new positions stated
in the Rules are shown in italics.
Footnote
[1] See: Court of Appeal (Amendment) Rules, 2020
(C.I 132)
[2] (C.I 19)
[3] Republic v. Fast Track High Court, Accra, Ex
parte Daniel Kwasi Abodakpi, Civil Motion No. J5/15/2005 dated 25th
October 2005 unreported.
[4] Republic v High Court (General Jurisdiction),
Accra; Ex parte Magna International Transport Ltd (Ghana Telecommunications Co.
Ltd Interested Party) Civil motion No. J5/66A/2017 dated 7th November,
2018.
[5] Footprint Solutions Co. Ltd. v. Leo & Lee
Company Ltd. Civil Appeal No. J4/52/2011, dated 24 May 2013, unreported
[6] See: Ataa Ashie Nikoi v. Charles
Quist Civil Appeal No. J4/18/2011 dated 24th May,
2013, SC (unreported); Daniel Elias Williams Joseph v. Okomfo Anokye
& anor Civil Appeal No. J4/12/2012 dated 27th February,
2013, SC (unreported)
[7] The President, H.E Nana Addo Dankwa Akufo-Addo
had occasion to admonish superior court judges against citing decisions of
lower courts as law at a swearing –in ceremony for six Court of Appeal judges
held in August, 2020: “The situation, where judges proffer judgments on the
basis of decisions from lower courts and cite them as law is not acceptable…”
Ironically, two judges out of the three – member panel were part of those sworn
in by the President in August, 2020. See the full story at https://presidency.gov.gh/index.php/briefing-room/news-style-2/1640-president-akufo-addo-swears-in-six-6-justices-of-the-court-of-appeal
[8] See: Supreme Court (Amendment) Rules, 2020 (C.I
131)
[9] The Supreme Court Rules, 1996
