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Practice and Procedure - Special
leave to appeal - Courts Act,
1993 Section 1 (2) (Act 459) as
amended and Rule 7 (4) - Section
1 (2) of the Courts Act, 1993
(Act 459) as amended and Rule 7
(4) - Pendency of interlocutory
application - whether Order 66
rule 3 of C. I. 47 which creates
a criminal offence could be
enforced - Question of law or is
in the public interest.
HEADNOTES
On 12th March 2009
the Plaintiffs commenced an
action against the Defendants
before the High Court, Tema, for
revocation of letters of
administration granted to them
in respect of the estate of Baby
Angelina Manle Siaw-Sappore. The
case was heard to finality when
judgment was delivered on 22nd November
2011 in favour of the Plaintiffs
and accordingly, the letters of
administration so granted was
revoked and the trial court
instead granted the letters of
administration to the first and
second plaintiffs.
Subsequent to the revocation and
the grant of letters of
administration to the first and
second Plaintiffs, the
Plaintiffs who are now the
Respondents in this application
on 18th November 2012
filed an application for an
order to punish Tetteh
Siaw-Sappore, Narteh
Sappore-Siaw and Siaw Sappore
Otuabuah for intermeddling under
Order 66 Rule 3 of the High
Court Civil Procedure Rules, C.
I. 47 of 2004. When the
application was listed for
hearing on 9th September
2012 the learned Judge had to
determine a preliminary
objection on whether Order 66
rule 3 of C. I. 47 which creates
a criminal offence could be
enforced by an application of
such nature. In a ruling dated
30th November 2012,
the learned trial Judge upheld
the objection and dismissed the
application. Not satisfied with
the ruling the Plaintiffs lodged
an appeal to the Court of
Appeal, Accra. The Court of
Appeal on 16th June
2016 allowed the appeal on the
grounds that Order 66 rule 3 of
C.I. 47 does not create a
criminal offence and can be
tried by an application.
HELD
I have considered the
circumstances of this case and I
do not think that a stay ought
to be granted. I therefore
exercised my discretion to
refuse the application
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, 1996, C.
I.16
Courts Act, Act 459 1993
CASES REFERRED TO IN JUDGMENT
Kwasi Owusu and Anr v Joshua
Nmai Addo & Anr Civil Appeal No.
J4/50/2014 dated 30th July
2015
BOOKS REFERRED TO IN JUDGMENT
Atkins Encyclopedia of Court
Form in Civil Proceedings 2nd Edition
Volume 37
DELIVERING THE LEADING JUDGMENT
ANIN YEBOAH JSC:-
COUNSEL
GEORGE ABORGA FOR
DEFENDANT/RESPONDENT/APPLICANT
ISAAC OFOSU BOATENG WITH HIM
NANA AKOSUA KORANKYE ANKRAH AND
D.A. AKROFI FOR RESPONDENT
APPELLANT RESPONDENT,
-------------------------------------------------------------------------------------------------------------------------------------------------
RULING
-------------------------------------------------------------------------------------------------------------------------------------------------
ANIN
YEBOAH JSC:-
On the 27th November
2016, I dismissed this
application for special leave to
appeal to this court and for
stay of proceedings under
Section 1 (2) of the Courts Act,
1993 (Act 459) as amended and
Rule 7 (4) Supreme Court Rules,
1996, C. I. 16 as amended. As
these proceedings touched on the
pendency of interlocutory
application, the facts could be
easily gleaned from the
affidavits filed in this
application. On 12th March
2009 the Plaintiffs commenced an
action against the Defendants
before the High Court, Tema, for
revocation of letters of
administration granted to them
in respect of the estate of Baby
Angelina Manle Siaw-Sappore. The
case was heard to finality when
judgment was delivered on 22nd November
2011 in favour of the Plaintiffs
and accordingly, the letters of
administration so granted was
revoked and the trial court
instead granted the letters of
administration to the first and
second plaintiffs.
Subsequent to the revocation and
the grant of letters of
administration to the first and
second Plaintiffs, the
Plaintiffs who are now the
Respondents in this application
on 18th November 2012
filed an application for an
order to punish Tetteh
Siaw-Sappore, Narteh
Sappore-Siaw and Siaw Sappore
Otuabuah for intermeddling under
Order 66 Rule 3 of the High
Court Civil Procedure Rules, C.
I. 47 of 2004. When the
application was listed for
hearing on 9th September
2012 the learned Judge had to
determine a preliminary
objection on whether Order 66
rule 3 of C. I. 47 which creates
a criminal offence could be
enforced by an application of
such nature. In a ruling dated
30th November 2012,
the learned trial Judge upheld
the objection and dismissed the
application. Not satisfied with
the ruling the Plaintiffs lodged
an appeal to the Court of
Appeal, Accra. The Court of
Appeal on 16th June
2016 allowed the appeal on the
grounds that Order 66 rule 3 of
C.I. 47 does not create a
criminal offence and can be
tried by an application.
It is as a result of the Court
of Appeal’s ruling that this
application is brought to seek
leave of this court to appeal to
the Supreme Court. Counsel for
the appellant has argued that
there is the need for Special
leave to appeal to this court
and that same ought to be
granted in the interest of
substantial justice as the point
of law under consideration
raises an issue of importance in
estate matters.
Counsel for the respondent
contended otherwise and sought
reliance on the unreported case
of Kwasi Owusu and Anr v
Joshua Nmai Addo & Anr Civil
Appeal No. J4/50/2014 dated 30th July
2015 and submitted that the
application for special leave to
appeal is misconceived in the
light of the decision of this
Court in which I was on the
panel. He further submitted that
as the matter originated from
the High Court the applicants
ought to appeal as of right. He
finally submitted that the said
request in the nature of Stay of
proceedings ought to be refused
as there is no appeal pending at
this court or elsewhere.
In my respectful view, the
determination of the first
ground if this application could
only be made if one considers
the statutes conferring appeals
on this court from the Court of
Appeal. It is trite learning
that all appeals are statutorily
conferred and could not be
inferred from decisions of the
appellate courts. In this
application, I think it would
suffice if I limit myself to
Section 4(1) and (2) of the
Courts Act, Act 459 of 1993
which is reproduced in full
thus:-
“4 (1) An appeal shall lie from
a judgment of the Court of
Appeal to the Supreme Court
(a) as
of right, in any civil or
criminal course or matter in
respect of which an appeal has
been brought to the Court of
Appeal from a Judgment of the
High Court or a Regional
Tribunal in exercise of its
original jurisdiction.
(b) with
the leave of the Court of
Appeal, in any other course or
matter where the case was
commenced in a court lower than
the High Court or a Regional
Tribunal and where the Court of
Appeal is satisfied that the
case involves a substantial
question of law or is in the
public interest.
(c) as
of right in any course or matter
relating to the issue or refusal
of writ or order of habeas
corpus, certiorari, mandamus,
prohibition or quo warranto.
2. Notwithstanding
subsection (1) of this section,
the Supreme Court may entertain
an application for special leave
to appeal the Supreme Court in
any course or matter (including
interlocutory matter) civil or
criminal, and may grant leave
accordingly.”
It is clearly plain that the
matter on appeal to the Court of
Appeal was commenced at the High
Court and therefore the only
provision worth considering
should be section 4 (a).
In my considered opinion the
applicant could appeal as of
right to the Supreme Court
without resort to this
application for Special leave
which was erroneously brought
under Section 1 (2) of Act 459
of 1993.
The provisions of section 4 (1)
(a) appears to be clear and
unambiguous to call for any
interpretation by this court. I
therefore proceed to dismiss
this application in this first
ground as leave is not required
to appeal to this Court in this
matter under consideration.
Leaned counsel for the
respondent argued the issue of
whether or not the application
for stay of proceedings was
properly before this court in
such a manner that I think I owe
him a duty to answer that point.
Stay of proceedings connotes a
temporary halt to proceedings,
usually brought to test a ruling
on appeal or suspend the hearing
of a matter till some steps are
taken. In the proceedings there
is nothing showing that an
appeal has been lodged against
the decision of the Court of
Appeal out of which leave is
being sought to appeal to this
court. There is no available
material to show that any step
ought to be taken to warrant
proceedings to be stayed.
Nothing substantial has been
shown to warrant the grant of
the Stay of Proceedings.
In Atkins Encyclopedia of Court
Form in Civil Proceedings 2nd Edition
Volume 37 on page 171 the
learned authors were
categorical in how to stay
proceedings and the danger
inherent in the grant as
follows:-
…a stay of proceedings is
always a very serious and grave
step for its consequences maybe
of far-reaching importance for
the parties. The general rule of
procedural law is that a
litigant is entitled to have his
claim to the relief or remedy
which he seeks tried on the
substantive merits of the case,
and therefore a stay of
proceedings is a discretionary
jurisdiction which ought to be
very sparingly exercised and
only in very exceptional cases.”
I have considered the
circumstances of this case and I
do not think that a stay ought
to be granted. I therefore
exercised my discretion to
refuse the application
(SGD) ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
COUNSEL
GEORGE ABORGA FOR
DEFENDANT/RESPONDENT/APPLICANT
ISAAC OFOSU BOATENG WITH HIM
NANA AKOSUA KORANKYE ANKRAH AND
D.A. AKROFI FOR RESPONDENT
APPELLANT RESPONDENT, |
