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RULING
ADINYIRA (MRS),J.S.C:
The facts briefly are that on 3
March 2006, the
Plaintiff/respondent
(hereinafter respondent)
commenced an action at the High
Court Accra against the Attorney
General as 1st
defendant and the Ghana Football
Association as the 2nd defendant
(hereinafter applicant) jointly
and severally, for the recovery
of the sum of ¢422, 148,026 with
interest being debt owed in
respect of hotel and restaurant
services provided by the
plaintiff to the Ministry of
Education, Youth and Sports and
the applicant. The 1st
defendant entered appearance but
failed to file a defence, and
the applicant herein did not
enter any appearance. On 4 April
2006, upon an application by the
respondent, the High Court
entered judgment against the
defendants, jointly and
severally, in default of defence
and appearance respectively. The
respondent took steps to execute
the judgment, and then the
applicant applied to the High
Court to set aside the default
judgment on the main ground that
it was not liable for the debt,
as the understanding was that it
was the 1st defendant
who was to settle the bills. The
High Court refused to set aside
the judgment. The applicant
therefore appealed to the Court
of Appeal against this refusal
but was again unsuccessful by a
judgment dated 22 May2008. The
applicant filed an appeal
against the judgment of the
Court of Appeal and then applied
for a stay of execution of the
default judgment of the High
Court dated 4 April 2006. The
Court of Appeal refused the
application on the ground that
the applicant had not appealed
against the said judgment.
The applicant has now brought a
repeat application before us and
has urged upon this Court to
stay the judgment of the High
Court dated 4 April 2006.
Counsel for the applicant
conceded in his submissions that
the judgment of the Court of
Appeal dated 22 May 2008 against
which he had lodged an appeal
was non-executable and therefore
cannot be stayed. He further
conceded that he had not
appealed against the judgment of
the High Court dated 4 April
2006 but argued that this
failure does not mean this Court
has no jurisdiction to entertain
his application. The basis of
his argument is two fold, namely
: 1) The Supreme Court has
jurisdiction under Article
129(4) of the 1992 Constitution
and the Courts Act 1993 (Act
459) to stay the judgment and 2)
that procedurally one cannot
legitimately appeal against a
default judgment and therefore
in the interest of justice and
pursuant to the inherent
jurisdiction of the Court, a
stay of execution against a
default judgment could be
granted to ensure that there is
no failure of justice in the
likelihood event that the appeal
is successful.
We will now deal with these
points seriatim.
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The Inherent Jurisdiction of
the Supreme Court under
Article 129 (4) of the 1992
Constitution
The applicant has brought a
repeat application before us and
has urged upon this Court to
stay the judgment of the High
Court dated 4 April 2006 by the
exercise of our inherent
jurisdiction under Article
129(4) of the 1992 Constitution
(similar provision under
section 2 (4) of the Courts Act
1993, Act 459), which provides
as follows:
“For the purposes of hearing and
determining a matter within its
jurisdiction and the amendment,
execution or the enforcement of
a judgment or order made on any
matter, and for the purposes of
any other authority, expressly
or by necessary implication
given to the Supreme Court by
this Constitution or any other
law, the Supreme Court shall
have all the powers, authority
and jurisdiction vested in any
court established by this
Constitution or any other law.”
This invitation by the
applicant is in effect asking
this Court to depart from
well-laid rules and procedures
with regard to application for
stay of execution pending
appeal. It is beginning to
become a fashion for
applications to be brought to
this Supreme Court ingeniously
inviting us to depart from well
laid rules and procedures
clearly defined under the
Constitution and other
enactments as well as case law,
to assume concurrent
jurisdiction with the High Court
and other adjudicating tribunals
under the ambit of our inherent
jurisdiction and /or in the
exercise of our supervisory
jurisdiction, where in those
instances the applicants are met
with difficulties arising from
wrong procedural steps they have
taken. It is worthwhile to
refer to a few instances.
In the case of Edusei (No.1)
v. Attorney General and Anr.
[1996-97] SCGLR 1, the
Supreme Court by a majority
decision dismissed an action
brought by the applicant for the
enforcement of his fundamental
right to freedom of movement.
The brief facts are that, in
1992, the applicant who was said
to have engaged with others in
espionage on behalf of the
United States of America was
allowed to leave the country.
But before he left his Ghanaian
passport was seized. In 1994 he
wanted to return to the country
he therefore wrote to the
Minister of Foreign Affairs for
the return of his old passport
to enable him to apply for a new
one. He received no response. He
therefore instituted an action
in the Supreme Court and claimed
inter alia that as a citizen of
Ghana by birth he had the
constitutional right to enter
Ghana and a fortiori to a
passport to enable him exercise
and enjoy that right. In their
statement of case the defendants
contended inter alia that since
the plaintiff was seeking an
enforcement of his right of
freedom of movement- a
fundamental human right, the
court has no jurisdiction to
determine the claim because
under articles 33 (1) and 130(1)
of the 1992 Constitution, it was
the High Court and not the
Supreme Court that had the
exclusive jurisdiction to
entertain that suit. The Supreme
Court by a majority decision
upheld the submission by the
defendants and dismissed the
plaintiff’s action.
Subsequently, in an application
for a review reported in the
case of Edusei (No.2) v.
Attorney General [1998-99] SCGLR
753 the ambit of Article
129(4) of the 1992 Constitution
was considered in the respective
judgments of their Lordships
Kpegah and Atuguba JJSC.
According to Atuguba JSC at page
798, the applicant in his
statement of case had in
substance submitted that:
“Once the jurisdiction of the
Supreme Court has been properly
invoked... that court has power
under article 129(4) of the
Constitution to exercise ‘all
the powers, authority and
jurisdiction vested in any court
established by this Constitution
or any other law.’ This we
submit includes the power to
enforce the human rights
provisions of the Constitution”
However according to his
Lordship Atuguba:
“I have come to the conclusion
that this court indeed has a
concurrent jurisdiction with the
High Court in the enforcement of
the Fundamental Human Rights by
a process of reasoning that is
not quite the same as the
applicant. It seems to me that
if one goes by the applicant’s
route alone, it is workable only
where the issue of
fundamental rights is incidental
or ancillary to the main
original action before this
court. In other words
article 129(4) cannot by itself
confer jurisdiction ab initio.
But this has all along been the
core ratio decidendi of such
cases as Tait v. Ghana
Airways Corporation [1970] 2 G &
G 527 and Yiadom Boakye
v. Amaniampong [1981] GLR 3.”(Emphasis
mine.)
On his part, Kpegah J.S.C. at
page 775 in a more expansive
manner reflected on Article
129(4) in the following words:
“There is some talk of this
court assuming jurisdiction
under article 129(4) of the
Constitution which provides as
follows:
“For the purposes of hearing
and determining a matter within
its jurisdiction and the
amendment, execution or the
enforcement of a judgment or
order made on any matter, and
for the purposes of any other
authority, expressly or by
necessary implication given to
the Supreme Court by this
Constitution or any other law,
the Supreme Court shall have all
the powers, authority and
jurisdiction vested in any court
established by this Constitution
or any other law. (The emphasis
mine)”
The above provision of the
Constitution does not permit the
Supreme Court to claim
concurrent original jurisdiction
with all adjudicating tribunals
created by the Constitution or
under any law. The influential
condition is that the Supreme
Court must first be determining
a matter “within its
jurisdiction” before it can have
all the powers, authority and
jurisdiction vested in any
court”
We agree with his lordship
that:
“A distinction must therefore be
made between “jurisdiction”
properly so-called and “judicial
power.” The two concepts are
often confused as meaning the
same thing. As stated in
Halsbury’s Laws of England, Vol.
9, (3rd ed.) at pp
350-351:
“Jurisdiction in its accepted
connotation is often defined as
the authority which a court has
to decide matters presented in a
formal way for its decision. The
limits of this authority are
imposed by statute, charter, or
commission under which the court
is constituted, and may be
extended or restricted by like
means.”
And perhaps the most
distinguishing factors between
“jurisdiction” and “judicial
power” lies in the fact that
judicial power is often
exercised by all the courts in
the exercise of their
legitimate jurisdiction, but
none of the courts possesses
all the jurisdiction to
enable it exercise judicial
power.”
As his Lordship explained
further:
“Unless this distinction is
maintained, it can be argued
that the Supreme Court has
original jurisdiction in
chieftaincy matters under
Article 129(4) of the
Constitution. But it could
however be said that when the
Supreme Court is properly seised
with an appeal from the judicial
committee of the National House
of Chiefs in a chieftaincy
matter under article 131(4), it
has all the powers and
jurisdiction of the lower court
or adjudicating tribunal. I am
therefore of the firm view that
before article 129(4) can be
resorted to by this Court, the
matter for determination must be
“within its jurisdiction”. I
dare say that article 129(4)
will be more relevant and
visible when the Supreme Court,
being the final appellate court
of the land, is exercising its
appellate, review and
supervisory jurisdictions rather
than its exclusive original or
reference jurisdictions. I am
not to be taken to mean that
this article can never be
invoked in the exercise of the
two latter jurisdictions.”
In another case of Accra
Recreational Complex Ltd. vs.
Lands Commission Supreme
Court , dated 20th
June 2007, unreported, this
time the case turned on the
issue whether the Supreme Court
should extend its powers under
the prerogative orders. The
relief the applicant was seeking
was a stay of proceedings at the
High Court [Fast Track Division]
Accra pending the final
determination of his appeal in
this Court. This was clearly a
relief appropriately covered by
rule 20 of the Supreme Court
Rules, CI.16. The applicant in
his statement of case stated
inter alia that: “the
considerations for stay under
Article 132 of the Constitution
should involve considerations
that go beyond special rules
relating to stay of proceedings.
It involves the exercise of
general supervisory jurisdiction
over proceedings of all courts,
being the final and highest
court of the land.”
The Supreme Court firmly refused
this subtle invitation to expand
its supervisory powers. His
Lordship Date Bah JSC succinctly
said:
“The purpose of this application
is not really to seek
supervision of the court below
in relation to an error of law,
but rather to freeze the
status quo pending the
hearing of the appeal. This is
not a proper subject matter for
the exercise of this Court’s
supervisory jurisdiction, but
rather for the usual process of
interlocutory application for
stay of proceedings pending an
appeal, which is provided for in
rule 20 of the Supreme Court
Rules (supra).”
We now turn our attention to the
application before us.
Following the above discourse,
it is quite clear that the
Supreme Court can properly
entertain this application only
if it has jurisdiction in this
matter. Ordinarily the Supreme
Court in the exercise of its
appellate jurisdiction can only
stay executable judgments or
orders of the court or body
from which the appeal emanated.
See the oft cited cases of Eboe
v. Eboe [1961] 1GLR 432, Mensah
v Ghana Football Association
[988-89] 1GLR 1, and NB.
Landmark Ltd. v. Lakiani
[2001-2002] SCGLR 318. The
statutory framework governing
interlocutory application for
stay of execution pending appeal
is by rule 20 of the Supreme
Court Rules, C.I 16, which
provides that:
“20. Effect of Appeal
(1) A civil appeal shall not
operate as a stay of execution
or of proceedings under the
judgment or decision appealed
against except in so far as
the Court or the court below may
otherwise order. (The emphasis
mine.)
(2) Subject to the Rules and to
any other enactment governing
appeals, an application for stay
of execution or of proceedings
shall first be made to the court
below and if the court refuses
to grant the application, the
applicant may repeat the
application before the Court for
determination.”
The only appeal properly pending
before this Court is the one
against the judgment of the
Court of Appeal dated 22 May
2008. Consequently, it is only
in respect of that judgment that
has been appealed against that
this court can properly be
invited to exercise its
discretion to grant a stay if
there is an executable order and
the application is with merit.
It is in the exercise of that
jurisdiction then that article
129(4) is applicable.
The applicant did not appeal
against the said default
judgment; Counsel however argues
that the proper practice and
procedure is not to appeal
against a default judgment but
to set it aside. We will
therefore consider the other leg
of Counsel’s submissions
2. Practice and Procedure
-Appeal -Default
Judgment-Refusal to Set Aside
Default Judgment
As just been mentioned it is
Counsel’s submission that the
proper practice and procedure is
not to appeal against a default
judgment but to set it aside. We
quite agree with this as this is
what is provided for under Order
10 rule 8, Order 13 rule 8 and
Order14 rule 9 respectively of
the High Court (Civil Procedure)
Rules C.I. 47, in respect of
default judgment obtained by
default of appearance, pleadings
or by summary judgment
respectively. However with due
respect to Counsel, this does
not mean that you cannot appeal
against a default judgment. You
may legitimately appeal against
a default judgment only after a
prior application to have the
said default judgment set aside
has been refused. So
where a High Court refuses
to set aside a judgment given in
default of appearance or
defence, the proper practice is
that the applicant or judgment
debtor has to file an appeal to
the Court of Appeal, against
both the refusal and the default
judgment. This proposition is
made clear in the cases of
NB. Landmark Ltd. v. Lakiani
[2001-2002] SCGLR318 and
Morkor V. Kuma [1998-99]
SCGLR620.
In the NB. Landmark Ltd.
v. Lakiani supra
the judgment debtor appealed to
the Court of Appeal against the
refusal to set aside a default
judgment by the Circuit Court.
It then applied for a stay of
execution of the default
judgment and it was granted by
the Court of Appeal. On appeal
to the Supreme Court, by the
judgment creditor, the Court per
Acquah JSC (as he then was) held
inter alia at page 321, that:
“The appeal was not in respect
of the main judgment of 2
November 1998 which ordered the
defendant to give up vacant
possession of the premises. A
stay of execution can of course
be applied to stay the
substantive judgment if an
appeal had been filed against it
and the relevant application for
stay is filed”
(The emphasis mine)
In the Morkor v Kuma case
supra an appeal was
actually filed against the
default judgment after the
refusal to set the same aside by
the High Court. At the Court of
Appeal one of the issues for
determination centered on the
date from which to compute time
within which to lodge an appeal
against a default judgment after
the refusal by the High Court to
set aside same. The Court of
Appeal held that the computation
of time within which to appeal
must be from the date of the
default judgment and not from
the date of refusal to set same
aside. The appeal was
consequently dismissed as
statute barred as it was filed
out of time, among other
grounds. On appeal to the
Supreme Court, this Court was of
the view that the time of
computation for appeal to the
Court of Appeal was after the
refusal to set aside the
judgment, as that was when the
judgment became final. Her
Ladyship, Sophia Akuffo J.S.C.
delivering the lead judgment of
the court held at page 629 that:
“In the light of the foregoing,
it appears that where summary
judgment had been obtained in
the absence of the defendants
and for an amount greater than
what was in fact due (as
acknowledged by the respondent),
the summary judgment could not
be treated as final once the
application was filed to set the
same aside. Consequently, the
proper date from which to
compute the time within which an
appeal could be made to the
Court of Appeal was 15 July
1992, the date of Sampson’s
ruling rather than the date of
summary judgment. The appeal was
therefore within time and not
statute-barred. For us to
conclude otherwise would be to
neutralize the effect of Order
14 r11 since, in the event the
court does not dispose of an
application within 6 months from
the date that a summary judgment
is entered, an applicant would
also have lost forever, any
chance of appeal.”
The Morkor v Kuma
case supra was in
relation to a summary judgment
under Order 14 of the then High
Court (Civil Procedure ) Rules,
1954 as amended, but in our
respectful view, the same sound
principle applies to judgments
in default of appearance and
defence under Orders 10 and 13
of C.I. 47 respectively
The applicant before us did not
appeal against the said default
judgment, the Court of appeal
did not make any executable
orders in respect of the said
judgment, where then lies our
jurisdiction to entertain an
application for stay of
execution of a judgment which is
not on appeal? Though this Court
in the exercise of its appellate
jurisdiction has power to grant
stay of execution pending
appeal, such power is only
exercisable in relation to
executable orders of the Court
from which the appeal emanated.
It is in the exercise of such
jurisdiction that it is clothed
with all the judicial powers
conferred by Article 129 (4) of
the Constitution. As Atuguba
J.S.C. puts it in the case of
The Republic v. Dr. Kwame Dufuor
Ex parte: Nicholas Edwards
Asare, Supreme Court,
Civil Motion No. J8/13/2008,
dated 20 February 2008
unreported:
“Article 129 (4) is auxiliary to
the Supreme Court but is not the
fons et origo of
jurisdiction over a matter over
which it has no jurisdiction”.
We wish to emphasise that
Article 129(4) cannot be used as
a springboard to cloth us with
jurisdiction where there is no
appeal pending against the
judgment sought to be stayed.
We must preserve the integrity
of the appeal process. The
applicant cannot seek to take
advantage of the difficulties
created by his omission to file
an appeal against the said
judgment of 4 April 2006.
Counsel for the applicant has
not advanced any sufficient
reasons to persuade us to depart
from well-laid rules and
procedures and precedents. This
application is without merit and
ought to be dismissed and is
hereby dismissed.
S. O. A. ADINYIRA, (MRS)
(JUSTICE OF THE SUPREME COURT)
S. A. B. AKUFFO, (MS)
(JUSTICE OF THE SUPREME COURT)
S. K. DATE-BAH
(JUSTICE OF THE SUPREME COURT)
R. C. OWUSU(MS)
(JUSTICE OF THE SUPREME COURT)
J.V.M. DOTSE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
THADDEUS SORY FOR THE APPLICANT
MOHAMMED SAHNOON FOR THE
RESPONDENT
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