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Practice add
Procedure - Default judgment –
Setting aside - Stay of
execution - invoking the
supervisory jurisdiction of this
court – Jurisdiction - Rule 21 -
Court of Appeal Rules, 1996
(C.I. 19)
HEADNOTES
The
plaintiff, applicant herein,
obtained a
default
judgment against the
defendant Bank of Ghana,
interested party herein. The
defendant applied to the High
Court to
set aside the default
judgment but the court refused
the application. The defendant
then appealed against the
refusal to set aside to the
Court of Appeal. At the same
time the defendant
invoked
the supervisory jurisdiction of
this court to vacate the
default judgment dated 12th
July 2012. In a reasoned ruling
delivered on 10th
April 2013, this court rejected
the application for certiorari,
but made an order staying
execution of the said judgment
pending the hearing and
determination of the appeal then
pending before the Court of
Appeal. the Court of Appeal has
since heard and dismissed the
appeal. Following the dismissal
of the appeal the defendant went
back to the High Court and filed
an application for a stay of
execution and for an order to
set aside the default judgment.
It is to prevent the High Court
from hearing the application
that the plaintiff, applicant
herein, has brought this
application invoking this
court’s supervisory jurisdiction
by way of an order of
prohibition against the High
Court
HELD
(1)The issue
of setting aside the default
judgment has been dealt with by
both the High Court and the
Court of Appeal and is on
further appeal to this court. It
cannot therefore be re-opened by
the High Court since it has
become ‘functus officio’
(2) The other
issue is the stay of execution
filed before the High Court. We
fail to appreciate the rule
under which the application was
made. The matter had gone to the
Court of Appeal and then to the
Supreme Court. There is thus no
rule of law or practice which
entitles the defendant to go and
file an application for a stay
of execution at the High Court
in respect of a matter which was
on appeal to this court.
(3)
A
prohibiting order will lie
against a wrongful assumption of
jurisdiction,
or it
‘arrests the proceedings of any
tribunal, board, or person
exercising judicial functions in
a manner or by means not within
its jurisdiction or discretion.’
The High Court has no
jurisdiction to entertain the
application for stay of
execution; it was a wrong forum.
It is thus proper to issue a
prohibiting order to restrain
the High Court from hearing the
application.
STATUTES
REFERRED TO IN JUDGMENT
Court of
Appeal Rules, 1996 (C.I. 19)
Supreme Court
Rules, 1996 (C.I.16)
CASES
REFERRED TO IN JUDGMENT
Republic V.
High, Court, Accra (Commercial
Division) ;Ex-parte: Hesse (Investcom
Consortium Holdings SA & Scancom
Ltd. Interested parties)
[2007-2008] 2 SCGLR 1230
Green Halgh
v. Mallard [1947] 2. ER 255:
Dahabieh v.
SA Turqui and Bross [2001-2002]
2 SCGLR 498
Gyimah and
Brown v. Ntiri William
Claimant [ 2005-2006] SCGLR 247
Vanderpuye
V. Nartey [1977] 1 GLR 428 C.A
BOOKS
REFERRED TO IN JUDGMENT
Handbook of
Common Law Pleading para. 341 at
page 542, Henry W. Ballantine
ed. 3rd ed. 1923,
DELIVERING
THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL
HANSEN K.
KODUAH ESQ. FOR THE APPLICANTS.
SAMUEL CODJOE
ESQ. FOR THE INTERESTED PARTIES.
__________________________________________________________________________________________
RULING
___________________________________________________________________________________________
BENIN, JSC:-
The
application before us raises a
very small issue which should
not have travelled this far if
the rules of this court had been
properly appreciated as we shall
shortly demonstrate. The issue
is whether a party who has
appealed to this court following
a dismissal of his appeal by the
Court of Appeal should make an
application for a stay of
execution to the High Court from
which the case originally
emanated.
The facts are
not in dispute.
The plaintiff, applicant herein,
obtained a default judgment
against the defendant Bank of
Ghana, interested party herein.
The defendant applied to the
High Court to set aside the
default judgment but the court
refused the application. The
defendant then appealed against
the refusal to set aside to the
Court of Appeal. At the same
time the defendant invoked the
supervisory jurisdiction of this
court to vacate the default
judgment dated 12th
July 2012. In a reasoned ruling
delivered on 10th
April 2013, this court rejected
the application for certiorari,
but made an order staying
execution of the said judgment
pending the hearing and
determination of the appeal then
pending before the Court of
Appeal.
The present
record shows that
the Court
of Appeal has since heard and
dismissed the appeal. Following
the dismissal of the appeal the
defendant went back to the High
Court and filed an application
for a stay of execution and for
an order to set aside the
default judgment. It is to
prevent the High Court from
hearing the application that the
plaintiff, applicant herein, has
brought this application
invoking this court’s
supervisory jurisdiction by way
of an order of prohibition
against the High Court.The
ground for the application is
this:
‘The High
Court Judge is completely ‘functus
officio’….and therefore
legally lacks
jurisdiction pursuant to
Rule 21
of the Court of Appeal Rules,
1996 (C.I. 19) to entertain
the Interested Party’s repeated
motion for stay of execution and
for a further order setting
aside the substantive default
judgment of the High Court dated
the 16th day of July
2012 when the Supreme
Court…….had previously granted a
stay of execution of the same
judgment of the High Court
pending the final determination
of the Interested Party’s appeal
at the Court of Appeal and the
Court of Appeal had heard the
said appeal and had unanimously
and finally dismissed the appeal
upon determination.’
The issue of
setting aside the default
judgment has been dealt with by
both the High Court and the
Court of Appeal and is on
further appeal to this court. It
cannot therefore be re-opened by
the High Court since it has
become ‘functus officio’.
The other
issue is the stay of execution
filed before the High Court. We
fail to appreciate the rule
under which the application was
made. The matter had gone to the
Court of Appeal and then to the
Supreme Court. There is thus no
rule of law or practice which
entitles the defendant to go and
file an application for a stay
of execution at the High Court
in respect of a matter which was
on appeal to this court.
Counsel for
the plaintiff cited rule 21 of
C.I. 19 to support his argument
that the application should have
been made to the Court of
Appeal. The said rule 21
provides that:
‘After an
appeal has been entered and
until it has been disposed of,
the Court shall be seised of the
whole of the proceedings as
between the parties and every
application shall be made to the
Court and not to the court
below, but any application may
be filed in the court below for
transmission to the Court’.
With due
respect to learned counsel for
the Applicant this provision is
inapplicable for the simple
reason that the appeal was no
longer pending before the Court
of Appeal at the time the
defendant, interested party
herein, applied to the High
Court.
The relevant
provision is rule 16 of the
Supreme
Court Rules, 1996 (C.I.16)
which reads:
(1) After the
transmission of the record of
appeal from the court below to
the Court, the Court shall be
seized of the appeal and any
application relating to the
appeal shall subsequently be
made the Court.
(2) Any
application filed in the court
below after the transmission of
the record of appeal shall be
transmitted to the Court.
The court
below as stated in rule 16 supra
refers to the court from which
the appeal was brought to this
court.
Thus where,
as in this case, the appeal came
from a decision of the Court of
Appeal, every application is to
be made to that court in the
first place unless the record of
appeal has been transmitted to
this court in which case all
applications shall be made to
this court. Under no
circumstances is a party
entitled to go back to the High
Court with an application for a
stay of execution.
A prohibiting
order will lie against a
wrongful assumption of
jurisdiction, inter alia. Or as
stated by the author Benjamin J.
Shipman, in his Handbook of
Common Law Pleading para. 341 at
page 542, Henry W. Ballantine
ed. 3rd ed. 1923, it
‘arrests the proceedings of any
tribunal, board, or person
exercising judicial functions in
a manner or by means not within
its jurisdiction or discretion.’
The High
Court has no jurisdiction to
entertain the application for
stay of execution; it was a
wrong forum. It is thus proper
to issue a prohibiting order to
restrain the High Court from
hearing the application.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME
COURT
CONCURRING OPINION
ATUGUBA ,
JSC:-
The facts of
this matter have been admirably
stated by my brother Benin JSC.
The
interested party’s motion for
stay of execution pending the
determination of his second
application to set aside the
default judgment against him was
not brought under any pending
appeal so as to be governed by
the rules for stay of execution
under the appellate process.
However the
said motion infringed the rule
against piecemeal litigation.
Assuming that
the Ruling of the High Court
dismissing his first application
to set aside the applicant’s
default judgment against him was
interlocutory, that does not
mean that he is at unrestrained
liberty to re-agitate the same
matter by a second application
based on a different ground. A
similar vice was dealt with by
this court in Republic V. High,
Court, Accra (Commercial
Division) ;Ex-parte: Hesse (Investcom
Consortium Holdings SA & Scancom
Ltd. Interested parties)
[2007-2008] 2 SCGLR 1230. ThIs
court held as stated in Holding
(3) thus :
‘The right
of the trial court to hear a
repeat application, was
dependent on the grounds on
which the new application were
proceeding.
The rule was
that if there was a new
matter or a fresh point which
had altered the position of the
parties or the dynamics of the
particular course or matter,
the court of first instance was
bound to look into those new
facts or circumstances.
To succeed,
an applicant must satisfy those
criteria, viz, that new facts
or circumstances had arisen,
which obviously were not within
his or her contemplation at the
date of the previous
application, and which had
caused a change in the position
of the parties. The change must
be reasonably substantial, not
minor or immaterial or
inconsequential. These were
all matters for the court ‘s
determination, not dependent on
an applicant’s mere say so.
However, parties would not be
entitled to break up their
defenses into parts or segments
only to present them as and when
they wished. Parties must
therefore be beheld accountable
to presenting all of their known
and conceivable claims or
defenses at a go, not piece
meal, for an effectual
resolution of all matters in
controversy between them so as
to bring an end of litigation.
In the instant case, the court
would reject the argument of the
first defendant (the first
interested party ) that the
first motion for an order to set
aside the default judgment had
been based on the arbitration
clause in the contract, while
the repeat motion was on the
ground that it had intended or
was ready to file a defense to
the action. In the
circumstances, the trial court
fell into grave error in
treating the motion filed on 27
April 2008 as a first time
application, deserving of a
grant and not an outright
refusal. Green Halgh v.
Mallard [1947] 2. ER 255:
Dahabieh v. SA Turqui and Bross
[2001-2002] 2 SCGLR 498 and
Gyimah and Brown v. Ntiri
William Claimant [ 2005-2006]
SCGLR 247 cited . ’
Long before
this decision the Court of
Appeal had decided that much in
Vanderpuye V. Nartey [1977] 1
GLR 428 C.A as per holding (1)
thereof thus:
‘if there was
a new matter which changed the
positions of the parties, a
court should look at it to
determine whether the prayer in
a motion for interlocutory
relief ought to be granted
despite the fact that a similar
motion had already been disposed
of in relation to the same
question.
In the present case, the court
was satisfied that the learned
judge ought not to have shut out
the appellant on the preliminary
objection that he had already
brought a similar application
unsuccessfully on the issue,
thus treating it as res
judicata. The appellant has
raised fresh points which
appeared genuine enough and
which, if true, might on a fair
examination induce a court to
grant him the relief that he
sought’.
The ground of
nullity relied in the interested
party’s second application could
have been discovered and relied
on by it in its first
application to set aside the
said default judgment against
it.
It is
therefore clear that the said
second application to set aside
the said default judgment is
oppressive and an abuse of the
process.
For these
reasons I would also grant this
application
(SGD)
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD)
J . B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
HANSEN K.
KODUAH ESQ. FOR THE APPLICANTS.
SAMUEL CODJOE
ESQ. FOR THE INTERESTED PARTIES. |
