A: Introduction
Different
people take their cases to court for different reasons. There are those who
choose to go to court mainly to drag their opponents (mostly considered to be
indigent) through the tedium of litigation. There are those who just relish the
pleasure of waking up, getting dressed and declaring to their compatriots and
neighbours that, they are ‘going to court.’ Then there is the majority of
people who take their cases to court because they look forward to reaping the
fruits of their labour when the cases end and they are adjudged as victors.
But not all judgments are readily
enjoyable after they are pronounced by the court. The person who lost the case
may decide to challenge the judgment on appeal. She may also exercise any of
the rights of judgment debtors to stay execution stated in the rules of
procedure. This article discusses the principles for stay of execution of court
judgments. Most importantly, it discusses the distinction between executable
and non-executable judgments and how the Supreme Court historically treated
cases falling under both heads.
The article discusses the new trend
introduced by Merchant Bank Ghana Ltd v
Similar Ways Ltd,[1]
the departure from the trend in Golden Beach Hotels (GH) Ltd v Pack Plus Int. Ltd[2] and other subsequent cases, and the re-emergence in Ogyeedom
Obranu Kwesi Atta VI v Ghana Telecommunication Ltd & Lands Commission.[3] The article concludes that the Supreme
Court’s ruling in the Ogyeedom Obranu
Kwesi Atta VI case has re-opened the sores created by the Merchant Bank Ltd case. It has, once
again, turned the distinction between stay of execution of executable and
non-executable judgments or orders murky.
B: Stay of execution of judgments
and orders: The reasons
When
a party successfully conducts her case and the court gives judgment[4]
in her favour, the next course of action for the successful party, if the
losing party does not do what the judgment mandates him to do, is to take the
necessary steps to realize or retrieve the fruits of her judgment. This means
the successful party or judgment creditor must go into execution of the
judgment by using any of the court’s execution processes such as garnishee
proceedings, writ of fi:fa, writ of
possession, etc.
Stay of execution of judgment simply implies
that judgment has been obtained against a party (judgment debtor) and the party
wants to stop the successful party (judgment creditor) from going into
execution to retrieve what the judgment has given to her as her reliefs.
Several reasons may account for a judgment debtor’s decision to make an
application to the court that gave the judgment for an order to stay the
execution of the judgment. Firstly, it may be that the judgment debtor wants to
set aside the judgment.[5]
Secondly, a judgment debtor may apply to the
court for an order to stay the execution of a judgment where the judgment
debtor wants to pay the judgment debt by instalments. Applications for stay of
execution and payment of judgment debt by instalment is specifically provided
for under Order 41 rule 8 (1).[6]
Cases such as Guaranty Trust Bank (Ghana)
Ltd v Western Steel & Forgings Ltd and Others[7]
and Agricultural Development Bank & Kumesh Ltd
v KMK Ltd & 2 Others[8]
are examples of instances where the courts have granted applications for stay
of execution and payment of judgment debt by instalment.
Thirdly, a judgment debtor can apply for stay
of execution of a judgment where he has not appealed against the judgment given
by the trial court but he can demonstrate that, some events that have happened
since the judgment was given justifies a stay of the execution of the judgment.[9]
The application is made to the trial court that gave the judgment or made the
order. For instance, in Republic v High
Court (Commercial Division) Accra; Ex parte Double Crown Investment Ltd
(Granada Hotel Ltd Interested Party),[10] the
Supreme Court held that, the application for variation of the order made after
the consent judgment was entered was in order.
In London
Permanent Benefit Building Society v de Baer,[11]
Plowman, J. held that, the power to grant relief under the rule (the analogous
provision of Order 43 rule 11 in the English Rules) was to be exercised on the
basis of matters that have occurred since the date of the judgment or order,
that is, matters that would have prevented the order being made or would have
led to a stay of execution if they occurred at the date of the order.
Now, there is a fourth method of staying
execution of a judgment or order which relates solely to stay of execution by
writ of fieri facias (fi: fa) where the judgment or order is
for payment of money.[12]
Where a judgment is given or an order is made for the payment of money by a
party, and the party (judgment debtor) is able to satisfy the court that (a) that there are
special circumstances which render it inexpedient to enforce the judgment or
order;[13]
or (b) that the
applicant is unable from any just cause to pay the money, the court may grant
an application for stay of execution.
Fifthly,
a judgment debtor can apply to the court for an order to stay the execution of
a judgment where the judgment debtor has appealed against a judgment given by a
court. This is known as stay of execution pending appeal.
C: Principles for grant of
stay of execution of judgments and orders
When
an application for stay of execution pending appeal comes on for hearing, there
are certain principles that the court takes into consideration in deciding to
grant or refuse the application. It is important that every lawyer and litigant
become conversant with these principles as an application for stay of execution
pending appeal will stand or fall depending on their breach or observance.
First of all, there is a statutory stay of execution of judgment for 7 days
immediately after the date the judgment or order is given.[14]
There is no further 7 days automatic stay of execution immediately after the
refusal of an application for stay of execution by a trial court as was the
case before C.I 132.[15]
Therefore, immediately after a trial court dismisses a party’s application for
stay of execution pending appeal, the judgment creditor can go into execution
the very next day.
Secondly, the applicant must first apply to
the trial court for an order to stay execution of the judgment pending appeal.
And if the application is refused, then the applicant can repeat the
application at the appellate court. That
is to say, if the application for stay of execution is refused by the High
Court, it can be repeated at the Court of Appeal. And if it is refused by the
Court of Appeal, it can be repeated at the Supreme Court.[16]
Another principle regarding orders for stay
of execution pending appeal is that, there is a statutory stay of all execution
processes for the period that an application for stay of execution is pending
before a court.[17]
Furthermore, a court’s decision whether to
grant or refuse an application for stay of execution pending appeal is
discretionary. A court may decide to grant the application, grant it by
imposing terms or refuse it all together. For instance, in Adu v Ghana Revenue Authority[18] the
application for stay of execution was granted on terms as follows: that the
defendants pay 50% of the judgment awards plus the costs without the interest
charges; that two months from the date of the judgment, the registrar of the trial
High Court should transmit the record of appeal to the registrar of the Court
of Appeal; that the defendants to ensure that all the steps necessary to give
effect to the preparation of the appeal record, that is, settlement of record,
fulfilling conditions of appeal are complied with to enable the trial court
registrar comply with the orders. Apart from these directives, the rest of the
judgment was stayed pending the appeal.
When
deciding whether to grant, grant on terms or refuse an application for stay of
execution pending appeal, the court must do a balancing act. In doing so, the
court must ensure that a party who wins his case should not be prevented from
reaping the fruits of his victory.
On the other hand, the party who has appealed
must also not end up with an empty victory as if he wins the appeal and the
other party has already executed the judgment, his judgment from the appeal may
be rendered nugatory. In Prince William Tagoe v Albert G.K. Acquah[19]
the Supreme Court followed its opinion in Joseph v Jebeile & Another[20]
when it held thus: “It has been the
practice that courts do not put fetters on the victorious party to prevent them
from reaping the fruits of their victory in legal proceedings by granting stay
of execution. It will, however, grant a stay of execution if the
appellant demonstrates that, there are arguable points of law to be canvassed
on appeal or that the circumstances of the case is such that if a stay is not
granted, any allowance of the appeal will be nugatory.”
D: Distinction between
executable and non-executable judgments
An
executable judgment or order is a judgment or order that can be enforced by
using any of the execution methods available in the rules of procedure.[21]
On the other hand, non-executable judgments or orders are those that cannot be
enforced by any of the court’s execution processes or procedures. For instance,
if a court orders A to pay ₵1,000 to B, the order is an executable order. So,
if B refuses to pay, A can execute the order by issuing a writ of fi:fa to attach A’s assets and sell them
to get his money. But if a court declares that C is the father of D after a
paternity contest, the order is a non-executable order. That means, D cannot
say he is going to ‘enforce’ that order against C by seizing C’s house under a
writ of fi:fa or garnisheeing C’s
bank accounts.
The case of NDK Financial Services Ltd v Yiadom Electrical and Construction Works
and Others[22]
was authority for the position that, the court can stay the execution of a
judgment or order whether the judgment or order was executable or not. But in Standard Chartered Bank (Ghana) Ltd v
Western Hardwood Ltd,[23] the Supreme Court did not follow its
previous decision in the NDK Financial
case. The correct position of the law
was stated in Standard Chartered Bank
(Ghana) Ltd v Western Hardwood Ltd to be this: that where a judgment does
not grant any executable reliefs, no order of stay of execution can be granted
in respect of it. So the NDK Financial
case is no longer good law.
E: Merchant Bank Ghana Ltd v Similar Ways Ltd and its chaotic
aftermath
The
principle that a court will not grant an order to stay execution of a
non-executable judgment or order as stated in the Standard Chartered Bank (Ghana) Ltd case was a fair statement. It
held sway for a couple of years. But in the year 2012, the Supreme Court
appeared to have been bitten by a novel bug of vacillation that was hitherto
rare amongst judicial arthropods. In the popular case of Merchant Bank Ghana Ltd v Similar Ways Ltd,[24]
the judgment debtor had applied
for an order for stay of execution pending appeal.
The application
was in respect of a non-executable order which, in the Supreme Court’s previous
decisions, could not attract orders for stay of execution pending execution.[25]
The Supreme Court refused to make an order for stay of execution pending appeal
as the order the applicant was seeking to stay its execution was
non-executable. But the Court made an order to ‘suspend’ the judgment pending
appeal in its bid ‘to do substantial justice to the parties.’
Soon thereafter,
in Golden Beach Hotels (GH) Ltd v Pack
Plus Int. Ltd,[26]
an application was filed to suspend the execution of a non-executable judgment
pending appeal, based obviously on the ‘victory’ in Merchant
Bank Ghana Ltd v Similar Ways Ltd. But the Supreme Court
refused to grant the application. The Court reasoned that, first of all, such
applications must be made under Rule 20 of C.I 16. Secondly, to succeed in an
application of that nature, the applicant had to satisfy a stricter and
narrower test higher than that relating to stay of execution. That is to say,
the applicant must demonstrate exceptional circumstances to enable the Court
make an order in its favour.
Since the applicant had failed to satisfy the
said test, the application was dismissed. Interestingly, the Court applied the
principle in the earlier case of Standard
Chartered Bank (Ghana) Ltd v Western Hardwood Ltd and Another[27] which is noted for the position that, a court
will not grant an order for stay of execution pending appeal when the order or
judgment in question is a non-executable order or judgment. The Supreme Court
declined to follow its novel and then most- recent decision on the subject in Merchant Bank Ghana Ltd v Similar Ways Ltd.
Other parties later sought all manner of
interlocutory reliefs from the Supreme Court pending appeal relying on the
decision Merchant Bank Ghana Ltd v
Similar Ways Ltd. But the Supreme Court rebuffed them. For instance, in Ashanti Goldfields Ltd v Africore Ltd &
Westchester Resources Ltd,[28]
the applicant filed a motion on notice for directions from the Supreme Court
seeking the following orders: (i) that the sum of US $4,000,000 paid into
court for investment remain in investment pending the final determination of
the appeal; (ii) that each plaintiff continue to hold the sum of
US$1,000,000 paid by the Defendant; (iii) that pending the final
determination of the appeal, the balance of the judgment debt be not enforced
by the plaintiffs, etc. The application was dismissed.
The Supreme Court held that, since the record
of appeal had not been transmitted to the Supreme Court, the Supreme Court’s
jurisdiction to hear the appeal, and the application as filed, was not yet
ripe. Most significantly, it was held that the application in Merchant Bank Ghana Ltd v Similar Ways Ltd (on
whose peg the applicant hanged its case) related
to a case that was potentially a nullity and that was why the Court in that
case suspended the execution. That was different from the instant ‘application
for directions’ by the applicants.
Many other
applicants who sought to hang their destinies on the decision in Merchant Bank Ghana Ltd v Similar Ways
Ltd were
similarly sorely disappointed.[29]
F: Ogyeedom v Ghana Telecommunications Ltd: The ultimate apocalypse?
But
just when the dust appeared to have settled on the question of whether a court
could grant stay of execution pending appeal in respect of a non-executable
judgment, the Supreme Court had to contend with the issue once again in Ogyeedom Obranu Kwesi Atta VI v Ghana
Telecommunication Ltd & Lands Commission.[30] The
facts of the case were that, the applicant, Ghana Telecommunication Ltd, filed
an application for stay of execution of the judgment of the Court of Appeal,
Cape-Coast pending an appeal against the judgment.
The respondent, Ogyeedom Kwesi Atta, through
his lawyer, raised a preliminary legal objection to the application. His lawyer
argued that, the judgment of the Court of Appeal that had been appealed against
by the applicant did not make any executable orders.[31] So,
by the decided cases of the Supreme Court (including the locus classicus on the subject, Standard
Chartered Bank (Ghana) Ltd v Western Hardwood Ltd and Another[32])
the applicant could not apply for an order to stay execution of a judgment that
was not executable.
It must be stated that, in the application
filed at the Supreme Court, Ghana Telecom (the applicant) requested the Supreme
Court to stay execution of the judgment of the trial High Court dated 10th
May, 2017 that ordered the applicant to pay to the respondent about US$16
million as damages for trespass to a parcel of land of about 8.242 acres at
Gomoa Afransi in the Central Region belonging to the respondent. Instructively,
that High Court judgment was not the judgment on appeal before the Supreme
Court. But that was what the applicant wanted an order to stay its execution. The
applicant argued that, the Supreme Court had authority under Article 129(4)[33]
and Rule 20 (2)[34]
to exercise the powers of either the High Court or the Court of Appeal to stay
execution of the judgment of the High Court.
The Supreme Court noted[35]
that, in the Merchant Bank case, the
appeal had not yet been entered and Rule 20 of C.I. 16 could not be called upon
because the decision of the Court of Appeal that had been appealed against was
not executable. So, the Supreme Court resorted to its powers at common law
incorporated by Article 126(2) of the Constitution, the reserved power of the
Court under Rule 5 of C.I.16 as well as Article 129(4) of the Constitution to
found jurisdiction to entertain and grant relief in respect of the executable
judgment of the High Court. In the final analysis, in the Merchant Bank case, the Supreme Court restrained itself from making
an order for stay of execution of the executable judgment of the High Court as
requested by the applicant. Instead of granting an order to stay the High Court
judgment (which definitely would have overstretched the Supreme Court’s
powers), the Supreme Court rather ‘suspended’ the entry of judgment filed in
respect of the High Court judgment. The Supreme Court held that, it had
jurisdiction to grant an order to suspend the execution of the High Court’s
judgment.
In Ogyeedom
Obranu Kwesi Atta VI, the Supreme Court held that, it had power to grant
stay of execution of the High Court judgment as that judgment was for damages
and it was, thus, executable. The Supreme Court formulated the new principle as
follows: Where the Court of Appeal has only dismissed an appeal against an
executable judgment of the High Court, and the judgment of the Court of Appeal
is appealed against to the Supreme Court, the Supreme Court can grant a stay of
execution of the first judgment (that is, the High Court judgment).[36] The
Court went on to justify this ‘new’ position by noting that, it “simplifies the
procedure instead of the manner in which the applications are currently drafted
by applicants as being for suspension of the judgment or injunction against its
execution.”
So, in effect, by the decision in the Ogyeedom Obranu Kwesi Atta VI case, the
principle that a judgment or ruling that is declaratory and non-executable cannot
be stayed is only skin deep. By the precedent set by the Ogyeedom Obranu Kwesi Atta VI case, if the judgment or order of
the trial court is executable but the judgment or order from the Court of
Appeal specifically before the Supreme Court is non-executable, the Supreme
Court can stretch its limitless hand into the trial court and stay execution of
the trial court’s judgment or order.
It is respectfully submitted that, the
Supreme Court’s decision in Ogyeedom
Obranu Kwesi Atta VI v Ghana Telecommunication Ltd & Lands Commission is,
at once, scandalous and an invidious assault on the hierarchy of the courts of
justice. The arm of the Supreme Court is not empowered to reach into the High
Court and determine which judgments must be executed, and which ones must be
‘suspended.’ Suspension of execution of judgment is a euphemism for stay of
execution. A distinction without a shred of difference. As Appau, JSC noted in Antonio Olimpio Santos Felix v Giovanni
Antonelli, Biglebb Const. & Crushing Ltd,[37]
suspension of a judgment has the same effect as staying its execution.
Therefore, if the Supreme Court saw through the danger in accepting applications
for suspension of execution and dismissed them, in many cases by single
Justices as noted earlier, then it should have washed its hands off the
application for stay of execution in the Ogyeedom
Obranu Kwesi Atta VI case.
After all, as has been stated in the
preceding sections, after the decision in the Merchant Bank case, the Supreme Court had a hard time warding off
applicants who trooped to the Court, praying for similar ‘most-favoured party’
treatment. Most commendably, the Supreme Court valiantly shut the door of the
hen–house to the chickens who lined up to roost. Indeed, it took just a single
Justice of the Court, in most cases, to shut the door against such applicants,
as stated earlier. Thus, it is most disconcerting that, it rather took a
humungous 7-member ‘enhanced’ panel to undo what single Justices did with ease.
This is what Pwamang, JSC said in his
concurring opinion: “Because this is a special remedy, and in order to prevent
its abuse by litigants whose only motive would be to frustrate judgment
creditors, I will echo the caution of Date-Bah, JSC in the Golden Beach Resorts case to keep the window very small. In that
regard, I will urge Your Lordships to accept it as the law that this special
procedural jurisdiction shall only be exercised in favour of an applicant upon
satisfying the court that, there is a basic and fundamental error committed by
either the trial court or the Court of Appeal or for some other compelling
reason.”
This caveat put in by the Supreme Court lends
credence to the fact that, the Court is aware of the sluice gate it has opened
by its decision in the Ogyeedom Obranu
Kwesi Atta VI case. Needless to say, weary litigants will pay scant regard
to this caveat and put in their applications for ‘stay’ or ‘suspension’ of
execution anyway. Considering that the Supreme Court boldly granted the order
to stay execution of the High Court judgment, ostensibly based on its
appellate jurisdiction conferred by article 131 of the 1992 Constitution and section
4(1) of the Courts Act, 1993, (Act 459), it is surprising that the Court
described the stay as a “special remedy.” The Court advised that they “keep the
window very small” to prevent its abuse by litigants. If the Supreme Court’s
decision was based on its constitutional and statutory jurisdiction, then it
need not be apprehensive of litigants abusing it.
Litigants legitimately lining up to savour
such fresh, constitutionally and statutorily-sanctified ‘special procedural
jurisdiction’ should not be seen as abusing it. After all, when the Supreme
Court introduced ‘suspension,’ they were candid enough to admit that it was
novel. If the same Court (differently constituted) has shot down suspension and
erected ‘stay’ on the back of constitutional and statutory law, then the Court
must not panic. Hopefully, the constitutional and statutory provisions (which
eluded the Merchant Bank case panel
and led them to go the ‘suspension’ way[38])
will serve the Supreme Court well in the years to come.
Needless to announce, the new legal frontier
that was created by the Ogyeedom Obranu
Kwesi Atta VI case has already opened the hen-house wider this time, and
the chickens are waddling in once more. The Supreme Court’s recent decision in Lithur v Lithur[39]
is a case in point. There, Dotse, JSC stated for emphasis that, in appropriate
cases, the Supreme Court will “stay execution of decisions which appear not to
be executable, but in real terms achieve executable inevitabilities.”
Unfortunately, His Lordship did not indicate what constitutes ‘appropriate
cases’ under which the Supreme Court will be exercising its new-born powers.
So, now that the pendulum has swung back to the Merchant Bank Ghana Ltd v Similar Ways Ltd’s hey days of
‘suspension’ of judgments and orders (now euphemistically called ‘stay’), we
live to see how long this second rally will last.
G: Reciprocal enforcement of
foreign judgments
One
aspect of the rules of Civil Litigation that can be negatively affected by the
decision in the Ogyeedom Obranu Kwesi
Atta VI case is the reciprocal enforcement of foreign judgments and
maintenance orders. Under private international law, there is a concept known
as the ‘reciprocal recognition and enforcement of judgments.’ This means that,
a judgment that is obtained from a court of competent jurisdiction in one
country can be enforced or executed against a party in another country. The
concept is based on the principle of reciprocity and it applies to any country
with whom Ghana enjoys reciprocal enforcement of judgments.[40]
Thus, any judgment of a Superior Court of a
foreign country with which Ghana has reciprocal enforcement of judgments will
be enforceable in the Superior Courts of Ghana if: (a) it is a final and
conclusive judgment between the parties; and (b) there is judgment debt to be
paid (but not a judgment for payment of taxes or other charges of a similar
nature or in respect of a fine or other penalty[41]);
and (c) the judgment is given after the coming into operation of the order or
legislative instrument directing that reciprocal enforcement of judgments is
extended to that country.
But it is only the judgments of the Superior
Courts of the recognized foreign countries that are enforceable in Ghana’s
Superior Courts. For the purposes of enforcing a foreign judgment, a judgment
will be considered to be final and conclusive even if there is an appeal
pending against it or it may still be subject to appeal in the courts of the
foreign country.[42]
Now, the question is: What will be the status of a High Court judgment
(executable) that has been appealed and the Court of Appeal has dismissed the
appeal (non-executable)? The High Court judgment will be executable so the
judgment creditor can go ahead and enforce it in a foreign country. If there is
a further appeal against the Court of Appeal decision to the Supreme Court, and
the Supreme Court by-passes the non-executable Court of Appeal decision and
reaches directly into the High Court to stay execution of the High Court
judgment (in typical Ogyeedom Obranu
Kwesi Atta VI v Ghana Telecommunication Ltd & Lands Commission fashion),
can the judgment creditor enforce the High Court judgment in a foreign country with
which Ghana enjoys reciprocal enforcement of judgment as a final and conclusive
judgment? Will such a judgment from a High Court of a foreign country be
enforced in Ghana? Most importantly, how will courts in foreign countries with
whom Ghana has reciprocal enforcement of judgments perceive the judgments from
our Superior Courts of Judicature?
H: Conclusion
Not
long after the Supreme Court gave its decision in Merchant Bank Ghana Ltd v Similar Ways Ltd[43]
to suspend the execution of a High Court judgment, though the Court of Appeal
had dismissed appeal against the said judgment, the Supreme Court realized it
had not put its foot right. So, in all subsequent cases where parties applied
for such suspension orders, the Supreme Court flatly refused to grant the
applications. Over time, all such applications for suspension or injunction were
handled by single Justices, who promptly dismissed such applications.
Therefore, the Supreme Court’s 7-member panel
decision in Ogyeedom Obranu Kwesi Atta VI
v Ghana Telecommunication Ltd & Lands Commission[44] that granted stay of execution of the
High Court’s judgment (after an appeal against it had been dismissed by the
Court of Appeal) came as a big surprise to many in the legal profession. The
highest Court of the land now appears to make ad-hoc rules of procedure as and when it sees fit.[45]
The Supreme Court was once bitten in the Merchant
Bank (Ghana) Ltd case. But its decision in the Ogyeedom Obranu Kwesi Atta VI case shows that, it is not twice shy.
FOOTNOTES
[1]
[2012] 1 SCGLR 440
[2]
[2012] 1 SCGLR 452
[3]
Civil Motion No. J8/131/2019 ruling dated 28th April, 2020, SC
[4]
It must be noted that the use of ‘judgment’ under this section also covers
‘orders’ made by a court in favour of a party in a case pending before a court.
[5]
The grounds for setting aside a judgment can be: a) under Order 10 rule 8
(setting aside judgment in default of appearance), b) Order 13 rule 8 (setting
aside judgment in default of defence), c) Order 36 rule 2 (setting aside
judgment in default of attendance at trial)
or d) setting aside the default judgment as a result of non-compliance
with the rules under Order 81 or an order made by the court
[6]
Order 41 rule 8 (1) of C.I 47 provides: “Where any judgment or order directs
the payment of money, the Court may, for any sufficient reason, order that the
amount shall be paid by instalments, with or without interest; and the order
may be made at the time of giving the judgment, or at any time afterwards by
the same or any other Judge and may be rescinded upon specific cause shown at
any time.”
[7]
Civil Appeal No. J4/34/2016 judgment dated 31st May, 2017, SC
[8]
[2013-2014] SCGLR 1614
[9]
See: Order 43 rule 11 of C.I. 47: “a party against whom a judgment or order has
been given or made may apply to the Court for a stay of execution of the
judgment or order or other relief on the
ground of matters which have occurred since the date of the judgment or order,
and the Court may by order grant the relief, on such terms as it thinks just.”
(Emphasis added)
[10]
[2009] SCGLR 524
[11]
[1968] 1 All ER 372
[12]
See: Order 45 rule 15 (1) of C.I. 47
[13]
See Ellis v Scott [1964] 2 All
ER 987 where it was held that, this was a case where there were special
circumstances that warranted that the application must be granted
[14]
See: Rule 27 (3) of Court of Appeal Rules, 1997 (C.I 19) as amended by
C.I. 132
[15]
Court of Appeal (Amendment) Rules, 2020 (C.I. 132)
[16]
See: Rule 27 (1) of C.I. 19 as amended by C.I. 132 and Rule 20 (1) of the
Supreme Court Rules, 1996 (C.I. 16); Republic
v High Court (Commercial Division 9), Accra; Ex parte Ecobank Ghana Ltd (Origin
8 Limited & Greater Accra Passenger Transport Executive (Interested
Parties)) Civil Motion No. J5/10/2022 decision dated 18th
January, 2022, SC (unreported)
[17]
Rule 27 (2) of C.I. 19; Joseph v Jebeile & Another [1963]
1 GLR 387, SC; : Mosi v Bagyina
[1963] 1 GLR 337
[18]
[2013-2014] SCGLR 1176
[19]
Civil Motion No. J4/24/2008
ruling dated 11th March, 2009, SC (unreported). See also: Barnieh II v Mensah & Others
[1984-86] 2 GLR 20; Dzotepe v Hahormene
III & Others [1984-86] 1 GLR 289 at 293 where Apaloo, CJ stated as
follows: “Recent
experience shows that, appellants who obtain a stay of execution thereafter go
to sleep and show very little interest in the prosecution of the appeal. On
that account, we intend to grant the stay for a limited duration and on terms.”
[20]
[1963] 1 GLR 387, SC
[21]
See: Order 43 to 47 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47)
[22]
[2007-2008] 1 SCGLR 93
[23]
[2009] SCGLR 196
[24]
[2012] 1 SCGLR 440; see: dictum of Atuguba, JSC thus: ““In this case the applicant applied to the High
Court to set aside the delivery (rather a novel idea, instead of the judgment
itself), of the judgment on the ground that it was not served with any hearing
notice for the same. It has appealed from the High Court’s dismissal of
that application and pending its determination applied unsuccessfully to the
High Court and Court of Appeal for an interim injunction to restrain the
execution of the judgment. It has sought that relief from this court
pending its appeal from the adverse ruling of the Court of Appeal. All
along, it is obvious that its applications and appeals do not relate to any
executable order. That however does not mean that it has no interest in
holding off the enforcement of the substantive judgment to which its processes
relate. … If a stay of execution cannot lie
other remedies may lie. One of such remedies can be the suspension of the
entry of judgment. In that event the effect of the judgment itself is
temporarily frozen and incidental processes such as execution can’t fly not
because execution thereof is stayed but that the life of the judgment itself is
in coma. … This
measure will prevent the eventual success of the applicant’s appeal being
rendered nugatory. This measure will protect the applicant from being
injured by the prima facie default of the trial court having delivered its judgment
without notice to the applicant, pending the determination of its appeals.”
(Emphasis added). In Olympio v
Giovanni Anthoneli & Another Civil Motion No. J8/99/2017 ruling 20th
July, 2017, SC (unreported), Appau, JSC said that suspension of a judgment has
the same effect as staying its execution
[25]
See: Standard Chartered Bank Ghana Ltd. v
Western Hardwood Ltd [2009] SCGLR 196
[26]
[2012] SCGLR 452; see:
dictum of Date-Bah, JSC
[27]
[2009] SCGLR 196. See also: Eboe v
Eboe [1961] GLR 432 Ollennu J (as he then was); N.B. Landmark Ltd v Lakiani [2001-2002] SCGLR 318; Ghana Football Authority v Apaade Lodge Ltd
[2009] SCGLR 100; Takyi v Ghassoub
(Ghana) Ltd [1987-88] 2 GLR 452, and Anang
Sowah v Adams [2009] SCGLR 111
[28]
[2013-2014] 1 SCGLR 398 (Coram: Date-Bah, JSC, sitting as a single Justice of
the Supreme Court)
[29]
See: Antonio Olimpio Santos Felix v
Giovanni Antonelli, Biglebb Const. & Crushing Ltd Civil Motion No.
J8/99/2017 ruling 20th July, 2017, SC (unreported) (Coram: Appau,
JSC, sitting as a single Justice of the Supreme Court); Ghana Commercial Bank v Bulk & Trade Ltd & 2 Others Civil
Motion No. J8/94/2014 ruling dated 20th November, 2014, SC
(unreported) (Coram: Akamba, JSC, sitting as a single Justice of the Supreme
Court); Boakye v Boakye [2013-2014] 2 SCGLR 1216 (Coram:
Akamba, JSC, sitting as a single Justice of the Supreme Court); Golden Beach Hotels (GH) Ltd v Pack Plus Int. Ltd (2012) SCGLR 452 at 459 per Date-Bah, JSC as follows: “According
to the argument we earlier advanced in this ruling, the criterion for
suspending an order of a lower court should not be identical with the criterion
summarized by Akufo- Addo, JSC in the Jebeile
case in relation to applications for stay of execution, but should embody an
additional element or requirement. The precise nature of this additional
element or requirement we would leave to subsequent cases to develop. However,
subject to fine-tuning in the light of the facts of subsequent cases, we would
propose that a possible test could be the nugatory effect referred to in the Jebeile case (supra) combined with the
need for exceptional circumstances. If this test of a ‘nugatory effect plus
more’ is not insisted upon, there would be no point in maintaining the
distinction between the two kinds of orders, namely stay of execution and
suspension of orders of lower courts.”
[30]
Civil Motion No. J8/131/2019 ruling dated 28th April, 2020, SC (unreported)
[31]
The decision of the Court of Appeal that was on appeal before the Supreme Court
was as follows: “As the analysis of the
entirety of this judgment shows, all the grounds of appeal have failed.
Accordingly, the appeal is dismissed in its entirety save for the enhancement
of the costs awarded by the trial court from Gh₵20,000.00 to Gh₵40,000.00 in
favour of the respondent as against the appellant. Subject to the variation of
the costs as indicated, the judgment of the High Court, Agona Swedru dated 10th
May, 2017 is hereby affirmed.” One intriguing aspect of the case as
captured in the concurring opinion of Pwamang, JSC is that, “In view of the
fundamental nature of the issue raised … the Chief Justice enhanced the Bench
for the hearing.” It is difficult for one to see what was so fundamental or
special about the issue [of whether the Supreme Court could grant an
application for stay of execution or ‘suspension’ pending appeal when the
appeal was against a non-executable judgment] to warrant an enhanced Bench of
7. After the decision in Merchant Bank Ghana Ltd v Similar Ways Ltd, the
issue had been so variously argued before the Supreme Court such that, in
similar cases where that issue was raised, the applications were handled by
single Justices of the Supreme Court: see for example: Ashanti Goldfields Ltd v Africore Ltd & Westchester Resources Ltd
(Consolidated) [2013-2014] 1 SCGLR 398 (Coram: Date-Bah, JSC, sitting as a
single Justice of the Supreme Court); Ghana
Commercial Bank v Bulk & Trade Ltd & 2 Others Civil Motion No.
J8/94/2014 ruling dated 20th November, 2014, SC (unreported) (Coram:
Akamba, JSC, sitting as a single Justice of the Supreme Court); Antonio Olimpio Santos Felix v Giovanni
Antonelli, Biglebb Const. & Crushing Ltd Civil Motion No. J8/99/2017
ruling 20th July, 2017, SC (unreported) (Coram: Appau, JSC, sitting
as a single Justice of the Supreme Court). If the same issue had been handled
singularly by Date-Bah, Akamba, and Appau, JJ.SC (among others), one is at a
loss as to what special attributions attended Ogyeedom Obranu Kwesi Atta VI v Ghana Telecommunication Ltd & Lands
Commission such that, even a 5-member panel of Justices of the Supreme
Court was found inadequate to handle it
[32]
Supra
[33]
Constitution, 1992
[34]
Supreme Court Rules, 1996 (C.I.16). See also: dissenting opinion of Pwamang,
JSC in Sethi Brothers v Reliance
Insurance Co Civil Motion J8/68/2019 ruling dated 30th May, 2019,
SC (unreported) where he made the order staying execution of the judgment of
the High Court and not the decision of the Court of Appeal as the Court of Appeal
decision was not executable
[35]
By the dictum of Pwamang, JSC
[36]
The Supreme Court’s decision was based on the reasoning that, the jurisdiction
of the Supreme Court to make interim orders touching and concerning the subject
matter of an appeal including upon an application for stay of execution that
falls outside Rule 20 derives from the general appellate jurisdiction of the
Supreme Court conferred by the Constitution and the Courts Act. Thus, it is the appellate jurisdiction of the
Supreme Court conferred by Article 131 of the Constitution and Section 4(1) of
the Courts Act, 1993, (Act 459) that is the source of authority for the court
to hear and determine the substantive appeal as well as any interlocutory
matter related to it.
[37]
Civil Motion No. J8/99/2017 ruling 20th July, 2017, SC (unreported)
[38]
See the dictum of Gbadegbe,
JSC in Ogyeedom Obranu Kwesi Atta VI v Ghana Telecommunication Ltd
& Lands Commission Civil Motion No. J8/131/2019 ruling
dated 28th April, 2020, SC (unreported)
thus: “…having demonstrated that the collection of cases to which clear
reference has been made previously in this delivery were wrong in their
application of the clear provisions of article 129 (4) of the Constitution, it
is right to say that, the time has come for us to chart a new journey by taking
advantage of the enormous powers conferred on us by article 129 (3) of the
Constitution. As the said decisions did not correctly apply the power conferred
on the Court under article 129 (4) of the Constitution, they were delivered per incuriam and need not fetter us in
our pursuit of seeking to bring certainty to the law in order to enhance the
application of the principle of judicial precedent.”
[39] Civil Appeal No. J4/01/2021
judgment dated 29th April, 2021, SC (unreported)
[40]
Section 81 of the Courts Act, 1993 (Act 459) and Foreign Judgments and
Maintenance Orders (Reciprocal Enforcement) Instrument, 1993 (L.I 1575). L.I
1575 lists the countries with which Ghana has reciprocal enforcement of
judgments. They include Brazil, France, Israel, Italy, Lebanon, Japan, Spain,
Senegal, United Arab Republic and United Kingdom
[41]
See: United States of America v
Inkley [1988] 3 All ER 344 where the English Court of Appeal held that, the
default judgment on the bail bond agreement was not enforceable against Inkley
because it was based on public law, just like taxes and penalties
[42]
Section 81 (3) of the Courts Act, 1993 (Act 459)
[43]
[2012] 1 SCGLR 440
[44]
Civil Motion No. J8/131/2019 ruling dated 28th April, 2020, SC (unreported)
[45]
For one such case in which the Supreme Court issued its own ‘rules’ and
directed registrars to carry out same, see: Ken
Kwame Asamoah v State Insurance Company Civil
Appeal No. J4/55/2021, judgment dated 18th January, 2022, SC
(unreported)
