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Practice and
Procedure - Arbitration
proceedings - Arbitral award -
Stay of execution - Orders that
are not executable - Suspension
of the orders of courts –
Application filed out of time
rule - 20 of CI 16 - Supreme
Court Rules, 1996, CI 16 –
Whether or not the applicant
has not demonstrated such
exceptional circumstances as to
justify, the exercise of the
extraordinary discretion to
suspend the orders of courts
below or to stay proceedings,
HEADNOTES
The facts of
the present case are that the
applicant company participated
in
arbitration
proceedings which resulted
in an
arbitral award against it in
favour of the respondent company
in January 2011. The respondent
applied to the High Court for
leave to enforce the arbitral
award and the applicant in
parallel prayed the High Court
to set aside the award. The
High Court dismissed the
application to set aside the
arbitral award and rather
adopted the award as a judgment
of the Court. The applicant
then appealed from this ruling
to the Court of Appeal and also
applied to the Court of Appeal
for a stay of execution of the
High Court order, the Court of
Appeal held that the High
Court’s ruling was an
interlocutory one and therefore
refused the applicant’s
application for a stay of
execution.
HELD
The applicant
has not established a
sufficiently compelling case for
the remedies it seeks The
applicant has therefore failed
to establish that its appeal, if
successful, would be rendered
nugatory by this Court’s refusal
to suspend the order of the
court below. If this test of a
“nugatory effect plus more” is
not insisted upon, there would
be no point to maintaining the
distinction between the two
kinds of orders, namely stays of
execution and suspensions of
orders of the court below.
Accordingly, this application
deserves to be dismissed
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules, 1996, CI 16.
CASES
REFERRED TO IN JUDGMENT
Merchant Bank
Ghana Ltd. V Similar Ways Ltd
Civil Motion J8/38/2011 29th
March 2011
Standard
Chartered Bank (Ghana) Ltd. V
Western Hardwood Ltd. & Another
[2009] SCGLR 196
Joseph v
Jebeile & Anor [1963] 1 GLR 387
N.D.K.
Financial Services Ltd. V Yiadom
[2007-2008] SCGLR 93
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DR DATE-BAH
JSC:
COUNSEL
THADEUS SORY
APPEARS FOR THE APPLICANTS
SAMMY ADDO
APPEARS FOR THE RESPONDENT
______________________________________________________________________
R U L I N G
_____________________________________________________________________
DR DATE-BAH
JSC:
This is an
application for an order from
this Court suspending an order
of the Court of Appeal made on
14th December 2011
or, in the alternative, an order
staying
execution of the
proceedings consequent upon
that order which refused the
Applicant’s application for stay
of execution. The application
is patently made in order to
circumvent the received learning
that this and other courts will
not grant a stay of
execution
of orders that are not
executable. The application
relies principally on two
authorities:
Merchant
Bank Ghana Ltd. V Similar Ways
Ltd., an unreported decision
of this court dated
29th
March 2011 (Civil
Motion J8/38/2011} and
Standard
Chartered Bank (Ghana) Ltd. V
Western Hardwood Ltd. & Another
[2009] SCGLR 196.
In the
Merchant Bank case, the High
Court had delivered a judgment
when one party had not been
served with any hearing notice
for the day of judgment. That
party had applied to set aside
the delivery of the judgment.
That application was dismissed.
It appealed against this
dismissal and in the meantime
applied unsuccessfully to the
High Court and the Court of
Appeal for an interim injunction
to restrain the execution of the
judgment. It next applied to
the Supreme Court for this
relief of an interim
injunction. In response to that
application, our brother Atuguba
JSC said:
“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.”
In the
Standard Chartered case, Atuguba
JSC, delivering the ruling of
the Court, considered the effect
of Rule 20 of the
Supreme
Court Rules, 1996, CI 16.He
stated (at p. 200) that:
“…this court
can, in an appropriate case,
grant a “stay of proceedings
under the judgment or decision
appealed against,” under rule
20(1) of the Supreme Court
Rules, 1996 (CI 16), and not
only in respect of execution
process. … 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.”
The rule
20(1) referred to by Atuguba JSC
reads as follows:
“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.”
In the wake
of these two authorities, we
think that this court needs to
spell out the boundaries between
orders for stay of execution and
orders for
suspension of the orders of
courts below or for stay of
proceedings (which have been
construed by Atuguba JSC as
including steps required to be
taken pursuant to orders of the
court below). There is a risk
of this court descending into a
morass of sophistry, with
applications for orders for stay
of execution formulated as
applications for suspensions of
the orders of the court below or
as applications for stay of
proceedings. Thus, the
preconditions for a successful
application for an order for
suspension of the order of a
court below or for the stay of
proceedings (including execution
processes) need to be spelt out
clearly and authoritatively,
otherwise the received learning
on executable and non-executable
orders would be rendered
irrelevant. Logically, the
preconditions for trigerring
orders for suspension of orders
of lower courts and stay of
proceedings under
rule 20
of CI 16 have to be stricter
and narrower than those for an
ordinary stay of execution.
Otherwise, this court is likely
to wallow in a semantic morass.
On the facts
of the present case, we are not
inclined to grant an order for
suspension of the order of the
Court of Appeal nor to stay any
proceedings consequent on that
order.
The applicant has not
demonstrated such exceptional
circumstances as to justify, in
our view, the exercise of the
extraordinary discretion to
suspend the orders of courts
below or to stay proceedings,
liberally construed, on the
lines established in the two
cases cited above, namely:
Merchant Bank Ghana Ltd. V
Similar Ways Ltd (supra) and
Standard Chartered Bank (Ghana)
Ltd. V Western Hardwood Ltd. &
Another (supra). We would like
to re-iterate that the range of
such exceptional circumstances
will have to be kept narrow in
order not to overthrow the rule
that there can be no stay of
execution of non-executable
orders.
The facts of
the present case are that the
applicant company participated
in arbitration proceedings which
resulted in an arbitral award
against it in favour of the
respondent company in January
2011. The respondent applied to
the High Court for leave to
enforce the arbitral award and
the applicant in parallel prayed
the High Court to set aside the
award. The High Court dismissed
the application to set aside the
arbitral award and rather
adopted the award as a judgment
of the Court. The applicant
then appealed from this ruling
to the Court of Appeal and also
applied to the Court of Appeal
for a stay of execution of the
High Court order.
However, the applicant’s Notice
of Appeal was filed more than 21
days after the ruling of the
High Court. Accordingly, at the
hearing of the applicant’s
application for stay of
execution, the respondent argued
that the applicant’s appeal, on
which the application for stay
of execution was predicated, was
filed out
of time, because the High
Court’s ruling was an
interlocutory one. In spite of
the applicant’s arguments to the
contrary,
the Court of Appeal held that
the High Court’s ruling was an
interlocutory one and therefore
refused the applicant’s
application for a stay of
execution.
The applicant
has appealed to this Court
against this ruling of the Court
of Appeal and, recognising that
the Court of Appeal’s ruling is
not an executable order, has
made the imaginative application
described at the beginning of
this ruling for this Court’s
consideration.
In our view,
the
applicant has not established a
sufficiently compelling case for
the remedies it seeks. In
paragraph 20 of the affidavit in
support of the applicant’s
motion, deposed to by Mr. Carl
Adongo, one of its solicitors,
he states:
“That if the
present application is not
granted the result will be that
Defendant will find its appeal
which has a high chance of
success to be nugatory since the
Defendant has no way of
recovering the sum of $54,649.10
which Plaintiff has commenced
execution proceedings to
recover. (Annexed hereto and
marked exhibit “K” is a process
filed by Plaintiff pursuant to
garnishee proceedings initiated
by Plaintiff in the High
Court.)”
This bare
affirmation that the applicant
cannot recover the judgment debt
from the Plaintiff/respondent,
should the applicant win the
appeal, is unproven on the
balance of probabilities and
therefore cannot be the basis
for founding the imaginative
orders sought by the applicant
from this Court.
The
applicant has therefore failed
to establish that its appeal, if
successful, would be rendered
nugatory by this Court’s refusal
to suspend the order of the
court below. This criterion
is what is used to determine
applications for stay of
execution. Thus, in
Joseph v
Jebeile & Anor [1963] 1 GLR 387,
Akufo-Addo JSC (as he then was)
explained that (at p.390):
“While we do
not wish to say anything that
may be interpreted as a fetter
on the exercise of the
discretion of a trial judge when
he considers an application for
stay of execution pending appeal
we think it necessary in the
interest of justice to say
generally that when such an
application is considered in a
case involving, inter alia, the
payment of money, the main
consideration should be not so
much that the victorious party
is being deprived of the fruits
of his victory, as what the
position of a defeated party
would be who had had to pay up
or surrender some legal right
only to find himself successful
on appeal. In this respect it is
wholly immaterial what view a
trial judge takes of the
correctness of his own judgment
or of the would-be appellant's
chances on appeal, if the
position (it is not of course
suggested that that is the
position in the case before us)
is that the victorious party is
unlikely to be able to refund
the amount paid to him, or the
defeated party to be restored to
the status quo ante, in the
event of a successful appeal
(and it should not be difficult
to determine the likelihood of
such an event), then it would be
palpably unjust to refuse stay
of execution, or, when stay of
execution is refused, not to
order the judgment creditor to
give good, substantial and
realisable security for the
refund of the money involved.”
It should be
noted that this court has
relatively recently approved of
the criterion set out in
Joseph v
Jebeille in N.D.K. Financial
Services Ltd. V Yiadom
[2007-2008] SCGLR 93.
According to
the argument we earlier advanced
in this Ruling, the criterion
for suspending an order of a
court below should not be
identical with the criterion
summarised by Akufo Addo JSC 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 Joseph v Jebeille
(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 to
maintaining the distinction
between the two kinds of orders,
namely stays of execution and
suspensions of orders of the
court below. The facts of
this case do not satisfy the
test articulated in Joseph v
Jebeille (supra), let alone the
exceptional circumstances
requirement.
Accordingly, this application
deserves to be dismissed.
In sum, we
would dismiss this application.
(SGD)
DR. S. K. DATE BAH
JUSTICE OF
THE SUPREME COURT
(SGD)
S.A.B AKUFFO (MS)
JUSTICE OF
THE SUPREME COURT
(SGD)
J. ANSAH
JUSTICE OF
THE SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF
THE SUPREME COURT
(SGD) V.
AKOTO BAMFO (MRS)
JUSTICE OF
THE SUPREME COURT
COUNSELS:
THADEUS SORY
APPEARS FOR THE APPLICANTS
SAMMY ADDO
APPEARS FOR THE RESPONDENT |
