|
Practice and Procedure - Banking
- Loan - Auction sale -
Execution - Setting aside of
execution - 1992 Constitution;
Article 134 - Civil Procedure
Rules 2004, C.I. 47 Order 44
Rules 2(3) and (4) - Whether or
not Respondent ought to have
first sold its moveable
properties and if that was not
sufficient to liquidate the
judgment debt before levy
execution against immoveable
property - Whether or not there
was a breach which made the
auction illegal and void Whether
or not the said auction could be
set aside at any time.
HEADNOTES
HELD
Since in this case no such
proceedings are impending under
the judgement of the Court of
Appeal, the limited jurisdiction
of the court to stay proceedings
of execution under a judgement
appealed against has not been
properly invoked. The courts are
not given to making orders in
vain. Accordingly the
application will be refused.
STATUTES REFERRED TO IN JUDGMENT
High Court Civil Procedure Rules
2004, C.I. 47
Supreme Court Rules,
1996(C.I.16).
1992 Constitution;
Federal Service and Execution of
Process Act (Australia),
CASES REFERRED TO IN JUDGMENT
Anang Sowah v Adams [2009]
SCGLR111.
Standard Charted Bank (Ghana
Ltd) v Western Hardwood Ltd &
Anor [2009] SCGLR 196
Merchant Bank Ghana v Similar
Ways Ltd [2012]1SCGLR 440.
Golden Beach Hotels (Gh) Ltd v
Packplus International [2012]1
SCGLR 452.
Agbemabiese v Dzisam [1973] 1
GLR 291
Cheney v. Spooner (1929) 41
C.L.R. 532
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC.
COUNSEL
OSAFO BUABENG WITH HIM STEPHEN
CHARWAY FOR THE APPLICANT.
MRS. REBECCA BOAKYE WITH HER
MISS. JANE ADDO FOR THE
RESPONDENT.
RULING
PWAMANG,
JSC.
This is an application by the
Defendants/Judgment
Debtors/Appellants/Applicants,
hereinafter referred to as “the
Applicants” praying for an order
of stay of proceedings under the
judgment of the Court of Appeal
dated 17th December,
2015 pending the determination
of an appeal they have lodged in
this court. The background to
this application is that on 24th
May, 2006 the
Plaintiff/Judgment Creditor/
Respondent/ Respondent, to be
referred to as “the Respondent”,
obtained judgment in the High
Court, Accra against the
Applicants for payment of
various sums of money owed in
respect of a loan taken from
the Respondent bank. Respondent
went into execution, attached
and sold the factory premises of
the Applicant at an auction. The
factory building was bought by
the Word Prayer Centre.
Applicant filed several motions
to set aside the execution but
failed. It would appear that the
purchaser at the auction
subsequently was able to recover
possession of the premises and
removed the plant and machinery
of the Applicant therefrom. Then
on 20/3/2012 Applicant filed yet
another motion in the High Court
seeking to set aside the auction
and for its machinery to be
placed back in the factory
premises. That motion was based
on a number of grounds alleging
procedural breaches which the
Applicants claimed were
fundamental and had the effect
of nullifying the auction. The
main breach complained of by
applicants was that by the
provision of Order 44 Rules
2(3) and (4) of the Civil
Procedure Rules 2004, C.I. 47
the Respondent ought to have
first sold its moveable
properties and if that was not
sufficient to liquidate the
judgment debt, it is only then
that it could lawfully levy
execution against its immoveable
property. Applicant contented
that that breach of made the
auction illegal and void and
same could be set aside at any
time. Respondent resisted the
motion but, in a 24-page ruling,
the High Court granted the
motion and set aside the
auction.
Respondent being obviously
aggrieved, appealed against that
ruling and the Court of Appeal
allowed the appeal, set aside
the decision of the High Court
and confirmed the Certificate of
Purchase that had been issued to
the purchaser. Applicants have
appealed against the judgement
of the Court of Appeal and is
praying that the ruling of the
High Court be restored.
Applicants applied to the Court
of Appeal for a stay of
execution of its judgement and
the application was granted by a
Single Justice but his ruling
was reversed by the Court of
Appeal duly constituted on the
ground that its decision in the
substantive appeal did not
contain an executable order.
Applicant has now filed this
motion praying for stay of
proceedings under the judgement
of the Court of Appeal pending
the final determination of their
appeal by this Court.
To my understanding, the
Applicant filed the present
motion instead of the usual
motion for stay of execution in
view of the decisions of this
court to the effect that where a
judgement does not grant any
executable relief or make any
executable order then there can
be no stay of execution pending
an appeal. See the case of
Anang Sowah v Adams
[2009] SCGLR111.
However in Standard Charted
Bank (Ghana Ltd) v Western
Hardwood Ltd & Anor
[2009] SCGLR 196 this court
made a distinction between stay
of execution and stay of
proceedings under the decision
appealed against as provided for
in Rule 20 (1) of the Supreme
Court Rules, 1996(C.I.16). The
court speaking through the
inimitable Atuguba JSC said as
follows at page 200 of the
report;
“In this regard we
would, in this modern era of
functional or purposive justice
liberally interpret the word
proceedings in rule 20(1) as
referring to any steps that are
required or are necessitated,
and not merely occasioned, by
the judgment appealed from.”
In that case the court held that
in exceptional circumstances it
could, in the interest of doing
justice, stay proceedings of
execution pending appeal against
a judgement which did not make
an executable order. This
reasoning of the court was
followed in the case of
Merchant Bank
Ghana v Similar Ways Ltd
[2012]1SCGLR 440. The
authorities on this subject so
far point to the need for the
Supreme Court’s jurisdiction to
stay proceedings of execution
under a judgement that did not
make an executable order to be
kept extremely narrow in scope
and operation in order to
maintain the distinction between
executable and non-executable
judgements. See Golden Beach
Hotels (Gh) Ltd v Packplus
International [2012]1 SCGLR 452.
I see good sense in keeping this
jurisdiction narrow so as to
avoid interminable applications
for stay of execution which
would undermine the
effectiveness of judgements of
the courts. In my considered
opinion, this jurisdiction ought
to be exercised in only those
plain cases where irreparable
injury will be suffered by an
applicant who has demonstrated a
prima facie case on appeal such
that there will be a miscarriage
of justice if the proceedings
are not stayed.
In this application the parties
in their affidavits and
submissions at the hearing have
raised points of law on which
they claim the Court of Appeal
was either right or wrong in
upholding the validity of the
auction but I have decided not
to express any opinion on those
points of law. The Respondent
has even contested the legal
existence of an appeal before
this court in this case on the
ground that the decision being
appealed against is an
interlocutory one and any appeal
ought to have been filed within
21 days which was not complied
with.
Rule 21 of C.I. 16 provides as
follows;
“Whenever any doubt arises as to
whether any judgment, order,
decree or decision is final or
interlocutory the question shall
be determined by the court.”
My jurisdiction as a single
justice of the court is provided
for as follows in Article 134 of
the 1992 Constitution;
“A single Justice of the Supreme
Court may exercise power vested
in the Supreme Court not
involving the decision of the
cause or matter before the
Supreme Court,”
It is obvious that a decision on
whether the judgement appealed
against was interlocutory or
final may conclusively determine
the pending appeal and to my
understanding, Article 134 does
not allow me sitting as a Single
Justice of the court decide such
a matter.
In any case, what appears to me
to be the main issue to resolve
this application is whether, in
the absence of any executable
order, there are nevertheless
any proceedings that have been
necessitated by the decision of
the Court of Appeal that may be
stayed by this court in the
exercise of its limited
jurisdiction?
In the case of Standard
Chartered Bank Ghana Ltd v
Western Hardwood Ltd
(supra), this court refused
an application for suspension of
a decision granting stay of
execution on terms on the ground
that no proceedings were
necessitated by that decision.
In Merchant Bank Ghana Ltd v
Similar Ways Ltd
(Supra) the proceedings
necessitated by the decision of
the Court of Appeal was the
enforcement of the judgment of
the High Court for the payment
of the judgment debt by the
deputy sheriff. On the
exceptional circumstances in
that case the court granted the
injunction. In the present case
the Respondent has deposed as
follows at paragraph 36 of the
affidavit in opposition;
“36. That with the
certified of purchase having
been issued and the purchaser
already in possession of the
property as of date, no further
proceedings or steps are
required to be taken by the
Respondent who has long been
paid the judgment debt about 4
years ago from the proceeds of
the auction sale.”
In the face of this deposition I
am unable to appreciate the
contention in Applicant’s
affidavit that Respondent and
the purchaser are making frantic
efforts to recover possession.
The term “proceedings” under the
decision appealed against in
Rule 20(1) of C.I. 16 to my mind
can only refer to lawful
proceedings within the ambit of
the rules of procedure of the
court. In the case of
Agbemabiese v Dzisam [1973] 1
GLR 291 at 295 Ata-Bedu J
quoted the definition of
proceedings in the case of
Cheney v. Spooner (1929) 41
C.L.R. 532, Isaacs and Gavan JJ.
at pp 536-537, in the following
terms;
“'proceeding' used broadly as it
is used in section 16 of the
Federal Service and Execution of
Process Act (Australia), is
merely some method permitted by
law for moving a court or
judicial officer to some
authorised act, or some act of
the court or judicial Officer."
Since in this case no such
proceedings are impending under
the judgement of the Court of
Appeal, the limited jurisdiction
of the court to stay proceedings
of execution under a judgement
appealed against has not been
properly invoked. The courts are
not given to making orders in
vain. Accordingly the
application will be refused.
(SGD) G. PWAMANG
JUSTICE
OF THE SUPREME COURT
COUNSEL
OSAFO BUABENG WITH HIM STEPHEN
CHARWAY FOR THE APPLICANT.
MRS. REBECCA BOAKYE WITH HER
MISS. JANE ADDO FOR THE
RESPONDENT. |
