RULING
BENIN, JSC:-
This is an application seeking
an order restraining the
interested parties from
executing the order of the High
Court pending the determination
of an application for certiorari
brought to the Supreme Court to
quash the decision of the High
Court, Commercial Division,
Kumasi. The applicant recounted
the facts leading up to the
application for certiorari which
is yet to be heard and
determined by this court. The
applicant herein caused to be
issued from the High Court in
Kumasi a writ of summons against
the interested parties herein.
The action could not be heard on
merits because on 25th
July 2014 the High Court
presided over by Yartey J.
dismissed the action because the
writ of summons did not disclose
the chamber registration number
of the firm which issued the
writ. The court also awarded
costs of GHc4,000.00 against the
applicant. The applicant has
since filed an application for
certiorari in this court to
quash the said decisions of the
High Court.
It appears the only executable
order made by the High Court is
the costs awarded. The applicant
is complaining that the
interested parties have taken
steps to enforce the order for
costs notwithstanding the
pendency of the application for
certiorari before this court.
The applicant therefore applied
to the High Court for an order
to stay execution of the order
for costs. However, the High
Court dismissed the application
upon a preliminary objection
raised by the interested parties
that as long as there was no
appeal pending against the
court’s decision, an application
for a stay of execution could
not lie.
Following the High Court’s
refusal to grant the stay of
execution, the applicant filed
an application in this court
seeking an order to restrain the
interested parties herein from
seeking to enforce the order for
costs awarded by the High Court.
This appears to be a repeat
application for a stay of
execution though described as an
application to restrain the
interested parties from
enforcing the High Court’s order
for costs. Whatever description
is given to the application, the
object sought is the same: to
stay execution in respect of the
order for costs.
The grounds for the application
may be found in paragraphs 7 and
8 of the affidavit in support of
the application. These read
thus:
7. That in order not to render
the success of the application
for certiorari nugatory, we pray
for an order for injunction
directed at the interested
parties to restrain them from
carrying on with any further
proceedings which instigated the
pending certiorari proceedings.
8. That the Applicant’s
application for certiorari
before the Supreme Court raises
serious issues relating to
violations of the Applicant’s
constitutional rights as well as
allegations of fundamental
errors which go to jurisdiction
of the High Court and I
therefore pray that the
interested parties be restrained
until the determination of the
application for certiorari.
Arguing the application, Counsel
for the applicant said they were
coming under Article 129(4) of
the 1992 Constitution, as
interpreted by this court in the
case of Ghana Football
Association v. Apaade Lodge Ltd.
(2009) SCGLR 100. He also
cited the case of Edusei (No.
2) v. Attorney-General (1998-99)
SCGLR 753and also
Merchant Bank (Ghana) Ltd. v.
Similar Ways Ltd. (2012) 1 SCGLR
440. Counsel’s view was that
though the Supreme Court rules
make no explicit provision for
interim orders in a matter like
certiorari, yet the court is not
helpless for under its inherent
jurisdiction it could make
appropriate orders to ensure
that justice prevailed.
For his part counsel for the
interested parties simply argued
that since the applicant did not
appeal against the High Court’s
decisions, an application for a
stay of execution would not lie.
The rules of court make adequate
provisions for a stay of
execution only where there is an
appeal against a lower court’s
decision.
Arguing further, Counsel for the
applicant said the issue of the
High Court’s jurisdiction was a
serious one so the court should
exercise its discretion in their
favour.
I think the case of Ghana
Football Association v. Apaade
Lodge Ltd. (supra) which
Counsel for the applicant cited
provides an answer to this
application. In that case the
court made it clear that the
Supreme Court had no
jurisdiction to entertain an
application for stay of
execution of a judgment which is
not on an appeal. The court went
on to explain that Article
129(4) of the Constitution would
be invoked only where the
Supreme Court is clothed with
jurisdiction over a matter in
which case it would be clothed
with the powers of the court
from which the appeal was
brought.
The High Court rules do not
confer on the court any right to
make a restraining order against
a successful party thereby
preventing him from enforcing
the court’s order when there is
no appeal against it. Under the
High Court rules the court has
jurisdiction to assist a
successful party enforce the
court’s orders when there is no
appeal against same. Thus under
Article 129(4) of the
constitution this court is
disabled from granting a
restraining order in the absence
of an appeal since the High
Court lacks such jurisdiction.
It was part of the applicant’s
case that if the order for stay
is not granted the certiorari
application will be rendered
nugatory should it succeed. I do
not think so because the
application for certiorari is
not in respect of the costs,
which was only a consequential
order. The Supreme Court may
decide to set aside the order
dismissing the suit but not
touch the costs at all, which is
not likely though. But the point
is that the main purpose of the
application for certiorari is to
ensure a restoration of the writ
of summons which the High Court
dismissed. Therefore the
application would not be
rendered nugatory if the costs
are paid. No reason has been
given why the costs should not
be paid to the interested
parties. I am therefore unable
to grant the application which I
dismiss accordingly.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME
COURT
COUNSEL
DANIYAL ABDUL KARIM ESQ. FOR THE
APPLICANT.
KWASI AFRIFA ESQ.
FOR THE INTERESTED PARTIES.
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