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Practice and Procedure - Single
judge - Stay
of execution pending appeal
- article 134(b) of the 1992
Constitution -
Special circumstances
-Whether partial grant of
stay amounted to a refusal -
Wether Court of Appeal affirming
the High Court’s grant of a
conditional stay of execution
was not an executable order.
HEADNOTES
The facts that have brought the
parties to this court are these.
The applicant obtained judgment
against the respondent at the
High Court, Accra for the
payment of a liquidated sum. The
respondent has appealed against
that decision to the Court of
Appeal which is yet to hear and
determine same. The respondent
applied to the High Court for a
stay of execution pending
appeal. The High Court granted a
partial stay by deciding that
the respondent should pay a
third of the judgment debt to
the applicant, whilst the
remaining two-thirds should
await the outcome of the appeal
HELD :-
Given all the
circumstances of this
application, we consider that
apart from the decision of the
single judge being contrary to
existing authorities, there were
also no special circumstances to
warrant a departure from the
decision of the Court of Appeal
as duly constituted. We
therefore grant this application
and vacate the order of this
court dated 1st
December 2016.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution. article
133 and 134(b)
C.I. 16 rule 20 and 54
CASES REFERRED TO IN JUDGMENT
Mass Projects Ltd (No. 2)
v. Standard Chartered Bank (No.
2) (2013-14) SCGLR 309
Swaniker v. Adotei Twi II
(1966) G.L.R. 151 SC
Sefa & Asiedu (No. 2) v.
Bank of Ghana (No. 2); Gyamfi
(No. 2) v. Bank of Ghana (No. 2)
(Consolidated) (2013-14) 1 SCGLR
530.
Anang Sowah v. Adams
(2009) SCGLR 111.
Golden Beach Hotels (Gh)
Ltd v. Packplus International
Ltd (2012) 1 SCGLR 452.
Ghana Football Association
v. Apaade Lodge Ltd. (2009)
SCGLR 100.
Standard Chartered Bank
(Ghana) Ltd. v. Western Hardwood
Ltd. (2009) SCGLR 196
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL.
KOFI SOMUAH FOR THE
DEFENDANT/RESPONDENT/APPLICANT
ASONABA DAPAA (MS) FOR THE
PLAINTIFF/APPELLANT/ RESPONDENT
ннннннннннннннннннннннннннннннннннннн
RULING
BENIN, JSC:-
This is an application on
notice brought by the Aluminium
Enterprise Limited, the
defendant/respondent/applicant
against Ecobank Ghana Ltd, the
plaintiff/ appellant /respondent
praying for an order reversing
the decision of this court
presided over by a single judge
dated 1st December
2016. Aluminium Enterprise is
hereafter called the Applicant
and Ecobank Ghana is called the
Respondent.
The facts that have
brought the parties to this
court are these. The applicant
obtained judgment against the
respondent at the High Court,
Accra for the payment of a
liquidated sum. The respondent
has appealed against that
decision to the Court of Appeal
which is yet to hear and
determine same. The respondent
applied to the High Court for a
stay of execution pending
appeal. The High Court granted a
partial stay by deciding that
the respondent should pay a
third of the judgment debt to
the applicant, whilst the
remaining two-thirds should
await the outcome of the appeal.
The respondent believed
the partial grant of stay
amounted to a refusal so they
repeated the application before
the Court of Appeal. The main
thrust of their argument was
that should they succeed on
appeal the judgment would be
rendered nugatory since the
applicant would not be able to
refund the sum of money. The
argument did not find favour
with the Court of Appeal
presided over by a single judge
so they were denied the prayer
sought. The respondent took the
matter before the duly
constituted bench of the Court
of Appeal but again they were
not successful.
Being dissatisfied with
the decision of the duly
constituted court, the
respondent applied to this court
for special leave to appeal
against same; the court granted
their request. They filed the
appeal to this court on the main
ground that the Court of Appeal
did not take relevant matters
into consideration in arriving
at their decision to deny the
prayer for stay of execution.
Thereafter the respondent
filed an application before the
Court of Appeal seeking an order
suspending the order or decision
affirming the partial stay of
execution, or alternatively to
stay proceedings consequent upon
the orders of the Court of
Appeal. The application was
dismissed by the said court, on
ground that no exceptional
circumstances had been disclosed
to warrant the exercise of its
discretion in their favour.
The respondent repeated
the application for the
suspension of the Court orders
or stay of proceedings before
this court. This court, presided
over by a single judge, granted
the application in these terms:
“I think it is fair that
the order by the Court of Appeal
confirming the conditional grant
of stay of execution by the High
Court is suspended pending the
determination of the appeal
before this Court against the
said order. Application is
accordingly granted. No order as
to costs.”
The present application
has been brought under article
134(b) of the 1992 Constitution.
It provides:
134. A single Justice of Supreme
Court may exercise power vested
in the Supreme Court not
involving the decision of the
cause or matter before the
Supreme Court, except that-
(b)
in civil matters, any order,
direction or decision made or
given under this article may be
varied, discharged or reversed
by the Supreme Court,
constituted by three Justices of
the Supreme Court.
The applicant is saying
that the order by the Court of
Appeal affirming the High
Court’s grant of a conditional
stay of execution was not an
executable order. For that
reason it is wrong for this
court to suspend such an order.
They therefore prayed that the
said order of the single judge
of this court be reversed by
virtue of article 134(b) of the
Constitution. This
constitutional provision merely
prescribes what the three-judge
panel may do after hearing an
application brought by a party
who is aggrieved with the
decision of a single judge. It
does not state under what
conditions or in what situations
the second panel may consider in
making the determination to
reverse, discharge or vary the
decision or order of a single
judge. Should the three-member
panel consider or apply the
conditions applicable to an
appeal or a review or a
combination of the two?
It is clear to us that an
application such as this cannot
be treated as an appeal since
the full record of appeal will
not have been placed before the
court; moreover the decision of
a single judge, and for that
matter a three-member panel,
cannot involve a substantive
cause or matter before the
court. Furthermore, in Mass
Projects Ltd (No. 2) v. Standard
Chartered Bank (No. 2) (2013-14)
SCGLR 309 this court
held that an application under
article 134 of the Constitution
is a special review application,
which was entirely different
from the court’s ordinary review
jurisdiction under article 133
of the Constitution; therefore
the provisions of rule 54 of the
Supreme Court Rules, 1996 C.I.
16 do not apply. Consequently,
the effect of the foregoing
opinion and in the Mass
Projects Ltd case, supra, is
that an application under
article 134 can neither be
treated as an appeal nor an
ordinary review.
What considerations then
will be applicable in a special
review application, in the
absence of guidelines provided
by the Rules of Court? Once the
right has been given to parties
and the court has been given
jurisdiction to entertain
applications, the court has an
inherent obligation to do
justice in the circumstances of
the case. However, the court is
constrained, in the absence of
directions, in putting its hand
on what situations and
circumstances it will exercise
this jurisdiction, unlike the
provisions in rule 54 of C.I. 16
in cases of ordinary review
application. We would venture to
suggest that in exercising its
jurisdiction under article 134
the court should examine each
case on its merits. With time a
certain regime of guidelines
will have been developed by this
court through various decisions
in order to light the path of
litigants who seek to take
advantage of the leeway afforded
by the existence of article 134
of the Constitution. We would
take this opportunity to add our
voice to the call upon the Rules
of Court Committee to make
appropriate rules to govern the
exercise of this jurisdiction.
But it is not far-fetched
to argue that rules on review
should largely apply, because
where an applicant succeeds in
proving that special
circumstances exist it is
legitimate for the court to
grant his request. And for that
reason all the factors that this
court has decided may constitute
special circumstances will come
into play, but always bearing in
mind, as decided in Swaniker
v. Adotei Twi II (1966) G.L.R.
151 SC that the categories
of what constitute exceptional
circumstances are never closed.
Besides, where the
decision rests on a patent error
of law or procedure, the court
may reverse the decision. Thus
where the single judge of this
court was considered to have
taken a wrongful view of rule 76
of C.I. 16 the three-panel judge
granted an application brought
under article 134(b) of the
Constitution and reversed the
decision. This was in the case
of Sefa & Asiedu (No. 2) v.
Bank of Ghana (No. 2); Gyamfi
(No. 2) v. Bank of Ghana (No. 2)
(Consolidated) (2013-14) 1 SCGLR
530.
In the instant case the
application is premised on these
grounds:
i.
“That the order of the
Court of Appeal dated 18th
March 2016 is a non-executable
order and the court erred in
ordering the suspension of a
non-executable order of the
Court of Appeal.”
ii.
“Additionally, respondent
has not demonstrated any
exceptional circumstances to
warrant a grant of an order of
suspension because their notice
of appeal discloses no arguable
points of law. Anyhow, the
applicant, on the other hand,
has demonstrated exceptional
circumstances and should reap
the benefits of the judgment
given in its favour.”
Both of these grounds have
received judicial
pronouncements, a number of
which have been referred to by
counsel for the applicant in
their statement of case. In
respect of the first ground
counsel stated that where there
is no executable order, such an
order cannot be stayed. The
cases they cited in support are
Anang Sowah v. Adams (2009)
SCGLR 111; Golden Beach
Hotels (Gh) Ltd v. Packplus
International Ltd (2012) 1 SCGLR
452. They also stated that
the order that is sought to be
stayed must have been made by
the court whose order is sought
to be stayed and not the trial
court’s decision or order. They
cited in support of this
submission the case of Ghana
Football Association v. Apaade
Lodge Ltd. (2009) SCGLR 100.
This is because as stated by
this court in the case of
Standard Chartered Bank (Ghana)
Ltd. v. Western Hardwood Ltd.
(2009) SCGLR 196, the
judgment of a lower court which
has been affirmed on appeal
remains the judgment of such
lower court and not that of the
appellate court.
The applicant’s position
is that the Court of Appeal
merely affirmed the decision of
the trial court and so it did
not make any order which was
capable of enforcement. The
order of the trial High Court
which is executable is not
before this court.
Besides they also argued
that the respondent did not
raise any matters before the
Court of Appeal from which it
could be decided that special
circumstances exist. It is for
these reasons that they believe
the single judge wrongly
exercised his discretion.
The applicant also argued
quite extensively about the
grounds for a stay of execution.
However potent these arguments
may appear to be, we would
decline the invitation to make a
pronouncement as that is the
subject-matter of the
substantive appeal before this
court, which article 134 of the
Constitution does not entitle us
to discuss in exercise of this
limited jurisdiction.
For their part, the
respondent argued that in
granting the special leave to
appeal, this court was satisfied
that “a decision by this court
on an important matter of law
regarding the point sought to be
appealed against would be an
advantage to the public.” They
also stated that the notice of
appeal raises serious grounds of
law for this court’s
consideration, which influenced
the single judge in arriving at
his decision, as he found them
not to be frivolous. All these
were said in response to the
argument as regards the appeal
being meritorious or otherwise,
which we have declined to go
into.
On a more relevant note,
the respondent, in response to
whether the order of the court
below was executable or not,
deposed in an affidavit in
opposition that:
“15. That I verily believe
to be true that the
plaintiff/appellant/respondent
correctly applied to this
Honourabe Court to SUSPEND the
order of the court below dated
18th May 2016 because
the said order of the court
below was a non-executable
order.
16. That I verily believe
that if the order of the court
below dated 18th May
2016 was an executable order the
plaintiff/appellant/respondent
would have applied for a STAY OF
EXECUTION and not an order to
SUSPEND the said order of the
court below.”
The respondent has thus
agreed with the applicant that
the order of the Court was non
executable. Therefore in order
to get around this apparent
hurdle the respondent chose to
apply to the court to suspend
the order. The first point that
comes to mind is whether this
course is sanctioned by any rule
in the Court of Appeal or this
Court. There is none that we can
find. The only recourse is the
Court’s inherent jurisdiction to
do justice. But the inherent
jurisdiction can only be invoked
where there is no rule or
judicial pronouncement to the
contrary. The principle in
Anang Sowah v. Adams,
supra, is simply that where
there is no executable order
from the decision of the court
immediately below, this court
cannot make an order staying
execution.
It is noted that the
respondent did not apply for a
stay of execution, but to all
intents and purposes the
application to suspend the
decision of the Court of Appeal
was aimed at achieving that
objective. The court will always
look at the substance of an
application and not the mere
words used in describing it. It
is most absurd to craft an
application for a stay of
execution as one to suspend the
court’s decision. Rule 20 of
C.I. 16 makes provision for a
stay of execution of decisions
which are executable, so once
the original decision is
executable, this court will see
through any application which is
disguised in whatever form to
achieve a stay of execution.
Indeed paragraphs 15 and 16 of
the respondent’s own affidavit
did not conceal the deceitful
act that they were aiming at
achieving a stay of execution in
the appellate courts what they
had failed to achieve in the
trial court.
We do recognise that the
existing law that literally
debars a party from seeking a
stay of non-executable order of
the first appellate court may
appear to work hardship in
certain situations, yet those
decisions must be re-visited in
appropriate case/s to enable
this court to take another look
at them. But until then the
respondent as well as the single
judge and we ourselves, (as the
point has not been urged on us),
are bound to respect them. We
think the application was
effectively seeking a stay of
execution but was disingenuously
disguised as one to suspend the
order of the Court of Appeal
which they concede was
non-executable. The application
should have been declined on
this point of law and we thus
decide that the single judge did
not have regard to the existing
authorities on the subject and
the decision cannot be allowed
to stand.
The next point is that
there were no special
circumstances raised before the
single judge which warranted the
decision. As pointed out
earlier, the categories of what
factors, matters or situations
would go into a consideration of
special circumstances are not
closed, yet the court must state
on the record why a decision
based on special circumstances
was taken. The exercise of every
discretion must have a basis,
factual and/or legal, to sustain
it, lest it should assume the
character of arbitrariness,
which is deprecated by article
296 of the 1992 Constitution.
The entire decision of the
single judge does not disclose
what factors were taken into
account that enabled him to
conclude that it was ‘fair’ to
grant the application. The
record as we have it does not
disclose any factors which
amount to special circumstances
which merited the court’s
decision in favour of the
respondent. On the contrary, it
is apparent from the narration
of the facts above that the
respondent has embarked upon
series of applications to
frustrate the applicant from
enjoying the fruits of his
victory, albeit partially. The
fact that the respondent is
challenging the basis of the
grant of the partial stay of
execution is not sufficient to
constitute special circumstance,
at least not until this court
has had the benefit of the full
record of appeal.
Given all the
circumstances of this
application, we consider that
apart from the decision of the
single judge being contrary to
existing authorities, there were
also no special circumstances to
warrant a departure from the
decision of the Court of Appeal
as duly constituted. We
therefore grant this application
and vacate the order of this
court dated 1st
December 2016.
(SGD) A. A. BENIN
(JUSTICE OF THE
SUPREME COURT)
(SGD) S. A. B.
AKUFFO (MS)
(JUSTICE OF THE SUPREME
COURT)
(SGD) ANIN YEBOAH
(JUSTICE OF THE
SUPREME COURT)
COUNSEL
KOFI SOMUAH FOR THE
DEFENDANT/RESPONDENT/APPLICANT
ASONABA DAPAA (MS) FOR THE
PLAINTIFF/APPELLANT/ RESPONDENT
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