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Practice and
Procedure - Execution - Stay of
execution of order -
judgment- debtor - Granting
leave to register a foreign
judgment - Appeal was filed out
of time - Whether a judgment or
order is final or interlocutory
- Whether the effect of the
order made is to finally dispose
of the parties’ rights - Whether
or not the requirements of the
rule that conferred jurisdiction
on them are authorized by law -
section 82 (7) , of the Courts
Act, 1993 (Act 459), - Order 71
rule 2 of the High Court ( Civil
Procedure ) Rules, 2004, CI 47.
HEADNOTES
The High
Court, Accra had on the 16
October 2006 granted an order
for its registration under
Order 71 rule 2 of the High
Court ( Civil Procedure ) Rules,
2004, CI 47. Following the
registration of the judgment and
after unsuccessfully seeking to
have the order that authorized
the registration set aside, the
applicant applied to the High
Court for an order of stay of
execution. In the body of the
motion paper, the applicant
sought from the High Court,
Accra “an order for stay of
execution of the order granting
leave to register the foreign
judgment”. The application was
determined against it on 13
October 2010. In the ruling of
the High Court that is exhibited
to the processes herein as GC 6,
the learned judge of the High
Court directed that the judgment
debt be paid into court within
thirty days from the date of the
order. The applicant repeated
its application for stay of
execution to the Court of
Appeal, which application was
dismissed on 7 December 2010.It
repays to say that in the
application to the Court of
Appeal, the applicant sought the
same relief as that which was
demanded from the High Court
previously. In their ruling
refusing the application, the
learned justices of the Court of
Appeal ordered the applicant to
pay 50% of the judgment debt
into court within sixty days
from the making of the order.
The applicant appealed from
the ruling of the Court of
Appeal to this court
HELD
MAJORITY OPINION
I do not
think that this case is an
authority for us to ignore time
frames laid down for law for the
initiation of appeals. Besides,
it being a judgment of the High
Court is of persuasive effect
only. The appellate jurisdiction
does not give us scope to
consider factual matters that
were not made available to lower
courts.
For the above
reasons, I proceed to dismiss
the application for stay of
execution
MINORITY OPINION
For these
reasons I would set aside the
order of conditional stay of
execution made by the Court of
Appeal and stay any further
steps or proceedings under the
registered judgment herein as
required by section 17 of Act
180 unless the same, i.e.
section 17 be complied with.
There is additional plenary
jurisdiction under articles
125(4) and 297(c) of the
Constitution so to do.
STATUTES
REFERRED TO IN JUDGMENT
High Court (
Civil Procedure ) Rules, 2004,
CI 47
Courts Act,
1993 (Act 459),
Bodies
Corporate (Official Liquidations
) Act, 1963 (Act180).
CASES
REFERRED TO IN JUDGMENT
Republic v
the High Court ( Fast Track
Division); Ex parte StateHousing
Co Ltd [2009] SCGLR 185
Captain M.
Robert Tidana v TheChief of
Defence Staff and Another, Suit
No J7/4/2011 dated 27 July 2011.
A-G v Faroe
Atlantic Co Ltd [2005-2006]
SCGLR 271
Re London and
Devon BiscuitCo (1871) LR 12 Eq.
190
Croshaw v
Lyndhurst Ship Co [1897] 2 Ch.
154.
Mosi v
Bagyina [1963] 1 GLR 637
Okomfo Afuah
v Sarbah [1974] 1 GLR 147
Bozson v.
Altrincham UDC (1903) 1 K.B. 547
Haron bin
Mohd Zaid v. Central Securities
(Holdings) Bhd (1982) 2 All ER
481, P.
Atta Kwadwo
v. Badu (1977) 1 GLR 1 C. A.
Pomaa v.
Fosuhene (1987-88) 1 GLR 244 S.C
Tawiah v.
Brako (1973) 1 GLR 483 C.A.
Agoti v.
Agbenoku (1978) GLR 14 C. A
Ghana
Football Association v. Apaade
Lodge Ltd (2009) SCGLR 100
Morkor v.
Kuma (1998-99) SCGLR 620
Republic v.
High Court (Fast Track Division)
Accra; Ex parte Speedline
Stevedoring Co. Ltd (Dolphyne
Interested Party) (2007-2008)
SCGLR 102
The Republic
v. The Court of Appeal, Anthony
Thomford, Ex parte Ghana
Chartered Institute of Bankers
J5/21/2001 S.C. dated 22/6/2011
Republic v.
Asogli Traditional Council; Ex
parte Amorni VII (1992) 2 GLR
347
Republic v.
Commissioner for Local
Government; Ex parte Nii Amar II
(1975) 2 GLR 122
Ghassoub v.
Dizengoff (W.A.) (1962) 2 GLR
133 SC
Okomfo Afuah
v. Sarbah
(1974) 1 GLR 147
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England, Volume 7
paragraphs 1359 – 1360 of the
Fourth Edition.
Halsbury’s
Laws of England, Volume 17 of
the Fourth Edition at paragraph
456
Halsbury’s
Laws of England (3rd
Edition) Vol. 22 at page 742
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC
COUNSEL
GBADEGBE JSC:
I have had the advantage of
reading before-hand the opinion
of my noble brother, Atuguba JSC
in the matter herein and
although his opinion is
deserving of great respect, I am
unable for reasons that follow
shortly to agree with him that
the application herein be
granted.
We have before us at the
instance of the applicant
herein, a motion on notice for
stay of execution of a foreign
judgment in respect of which
the High Court, Accra had on the
16 October 2006 granted an order
for its registration under
Order 71 rule 2 of the High
Court ( Civil Procedure ) Rules,
2004, CI 47. Following the
registration of the judgment and
after unsuccessfully seeking to
have the order that authorized
the registration set aside, the
applicant applied to the High
Court for an order of stay of
execution. In the body of the
motion paper, the applicant
sought from the High Court,
Accra “an order for stay of
execution of the order granting
leave to register the foreign
judgment”. The application was
determined against it on 13
October 2010. In the ruling of
the High Court that is exhibited
to the processes herein as GC 6,
the learned judge of the High
Court directed that the judgment
debt be paid into court within
thirty days from the date of the
order. The applicant repeated
its application for stay of
execution to the Court of
Appeal, which application was
dismissed on 7 December 2010.It
repays to say that in the
application to the Court of
Appeal, the applicant sought the
same relief as that which was
demanded from the High Court
previously. In their ruling
refusing the application, the
learned justices of the Court of
Appeal ordered the applicant to
pay 50% of the judgment debt
into court within sixty days
from the making of the order.
The applicant appealed from the
ruling of the Court of Appeal to
this court.I observe that
contrary to the requirements of
section 82 (7) of the Courts
Act, 1993 (Act 459), and Order
71 rule 2, of CI 47 the judgment
debt was from the processes
filed expressed in the pound
sterling instead of its cedi
equivalent at the date of the
judgment. I think this was a
serious lapse on the part of the
High Court in the order of 16
October 2006 granting leave to
have the foreign judgment
registered, an error that was
unfortunately repeated by the
two lower courts in their
subsequent determination of the
applications for stay of
execution in the matter.
Regrettably, both courts below
appear not to have adverted
their minds to the requirements
of the rule that conferred
jurisdiction on them in the
matter and it is hoped that in
the future in the exercise of
their jurisdiction judges
would take into account the
question whether or not the
orders that they are invited to
make are authorized by law in
order to give effect to the
legitimate expectations of
society and thereby advance the
rule of law. In my thinking,
however, the irregularity in the
denomination of the amount owed
under the foreign judgment is
not fatal as it can be corrected
to comply with the applicable
statutory provisions by
converting the judgment debt
into cedis at the date on which
the judgment was pronounced.
I now turn my attention to the
application before us. From the
processes filed, the appeal to
this court dated 24 December
2010 seeks an order allowing in
favour of the appellant
(applicant herein) an order of
stay of execution of the order
of the Court of Appeal by which
it was ordered to pay fifty per
cent of the judgment debt into
court within sixty days. On 8
November 2011, when the matter
came before us in open court,
the parties argued the
application fully and raised for
our consideration interesting
points of law that touch and
concern the practice and
procedure regarding the
enforcement of foreign judgments
as well as orders that might be
made in a matter proceeding to
execution when the execution-
judgment- debtor is in
liquidation. Also argued by the
parties was the question whether
the notice of appeal of 21 April
2010 was filed within the
statutory period of twenty one
days. At the hearing, we were of
the view that the resolution of
those points of law would be of
considerable value to our
procedural law, and accordingly
we made an order that the
arguments be submitted to us in
print before we delivered our
ruling in the matter. The
parties having made an accession
to the order, I now proceed to
deliver my ruling in the matter.
Having regard to the
consequences that flow from the
determination of the question of
the competency of the notice of
appeal by which the applicant
was enabled to apply for stay of
execution to the High Court and
the Court of Appeal, I think I
must deal first with it as in my
opinion it raises a fundamental
question that goes to
jurisdiction. The question that
comes up for consideration is
whether at the date that the
repeat application for stay of
execution was heard and
determined by the Court of
Appeal, there was an effective
and or competent notice of
appeal on which the proceedings
for stay of execution could have
been founded. The issue that is
thereby raised regarding the
notice of appeal being one that
affects jurisdiction, must be
inquired into before the other
points of law that were argued
by the parties. And should the
objection to the said notice of
appeal be sustained, it would
render unnecessary any
consideration of the other
points of law that were argued
by the parties before us.Since
the application to the Court of
Appeal whose refusal has
resulted in the instant
application was a repeat
application, I should commence
with an examination of the date
at which the application for
stay of execution was heard by
the High Court. It is trite
learning that since the repeat
application before the Court of
Appeal was founded on the prior
exercise of jurisdiction by the
High Court, if it lacked the
jurisdiction to hear the
application then by analogy the
Court of Appeal was equally
without jurisdiction.
I have carefully examined the
processes in the matter herein
which are in relation to notice
of appeal dated 21 April, 2010,
which is in evidence in these
proceedings as exhibit GC 4.
The said notice of appeal of 21
April, 2010 is expressed
unambiguously to be in respect
of two different rulings of the
court dated 16 October 2006 and
12 March, 2010. The orders that
were intended by the composite
notice of appeal to be corrected
by the Court of Appeal are the
orders of 16 March 2006 by which
leave was granted to the
respondent herein to register
the foreign judgment and that of
12 March, 2010 by which the High
Court refused to set aside the
registration of the foreign
judgment under Order 71 of CI
47. Although the notice of
appeal filed by the applicant
was in relation to two separate
and distinct orders contrary to
the settled practice that allows
appeals to be filed in respect
of single orders and or
judgments or rulings and
therefore irregular, in
considering the issues raised in
the matter herein and out of the
desire to do substantial justice
to the parties, I shall deal
with the notice as though it was
filed in respect only of the
latter of the two rulings namely
that of 12 March 2010.
I say at once that from the
nature of the said order that it
was interlocutory and that it
was incompetent for an appeal
there from to be lodged beyond
the period of twenty one days
that is expressly provided for
in rule 9(1) a of CI 19, the
Court of Appeal Rules.In my
thinking, to be good, the notice
of appeal ought to have been
filed twenty one days from its
making in compliance with rule 9
(1) aof CI 19. On the contrary,
learned counsel for the
applicant contended that since
by section 81 of the Court’s
Act, 1993(Act 459) and Order 71
of CI 47 the judgment that is
authorized to be registered must
be final, the order of 12 March
2010 that sustained the previous
one for its registration was
final in nature. The said
submission is rejected as
processes in aid of execution or
enforcement of judgments are
always interlocutory. I am
unable to yield to the argument
regarding the classification of
processes of execution
particularly those made under
reciprocal agreements between
nations for the enforcement of
foreign judgments in Ghana that
in their nature only enable a
judgment creditor such as the
respondent herein to reap of the
fruits of the judgment that they
are final; the attribute of
finality only attaching to
judgments and or orders that
completely dispose of the cause
of action before a court. In my
opinion the order of the High
Court dated 12 March 2010 was
interlocutory and I am supported
in this regard by the decision
of this court in the case of the
Republic v the High Court ( Fast
Track Division); Ex parte
StateHousing Co Ltd [2009]
SCGLR 185, wherein the learned
Chief Justice, Wood CJ
pronounced as follows:
“…an
order which does not deal with
the final rights of the parties,
but either (1) is made before
judgment, and gives no final
decision on the matters in
dispute but is merely on a
matter of procedure; or (2) is
made after judgment, and merely
directs how the declaration of
right already given in the final
judgment are to worked out, is
termed interlocutory.”
In coming to this view of the
matter, I am not disregarding
the decision of the Missouri
Court of Appeals in the case of
Acclaim Systems Inc. v Conrad
A. Lokhuto dated 18 March
2008 which was pressed on us by
learned counsel for the
applicant as a persuasive
authority in support of his
contention that the ruling of
the High Court that refused to
set aside the registration of
the foreign judgment is final
and not interlocutory. I have
had the opportunity of carefully
reading the said judgment of
Glenn A. Norton J, which in my
view does not really assist the
case of the applicant.The
classification in that judgment
of a ruling that sustains or
sets aside an order of
registration of a judgment as
final turns upon the specific
provisions contained in the
rules in the United States and
in particular the Uniform
Enforcement of ForeignJudgments
Law.See sections 511.760.
1(7) and 511.760.1(11)
Having determined that the order
that sustained the registration
of the judgment by the High
Court was interlocutory, I think
that on 21 April 2010 when the
applicant purported to lodge its
appeal, it was out of time
regarding the 21 days provided
for in rule 9(1)a of CI 19, the
Court of Appeal Rules. Since the
notice of appeal was filed out
of time, there was no competent
appeal pending from the order on
which an application for stay
could legitimately have been
founded See: Captain M.
Robert Tidana v TheChief of
Defence Staff and Another,
an unreported judgment of the
Supreme Court in Suit No
J7/4/2011 dated 27 July 2011.
Accordingly neither the High
court nor the Court of Appeal
had jurisdiction to entertain
the applications for stay of
execution, the refusal by the
Court of Appeal being the
subject matter of the instant
application. It being so, the
processes based thereon
including the ruling of the
Court of Appeal dated 7 December
2010, the subject matter of the
appeal to this court were
improperly constituted resulting
in the absence of jurisdiction
in the Court of Appeal. This
being the position, I am unable
to consider the application
herein on the merits.
Although the conclusion I have
reached on the competency of the
notice of appeal of 21 April
2010 is sufficient to dispose of
the instant application, there
is the point regarding the order
of the Court of Appeal being a
nullity as it was made in
defiance of the mandatory
provisions of section 17 of the
Bodies Corporate (Official
Liquidations ) Act, 1963
(Act180). The substance of the
point is to the effect that
since the applicant-company was
in the process of liquidation
pursuant to a special resolution
of the company dated 15 October
2009 no proceeding except that
by a secured creditor can be
commenced or proceeded with and
that consequently the order of
the Court of Appeal made at the
hearing of the application for
stay whose refusal is the
subject matter of an appeal to
this court was null and void.
That order may have been made in
violation of section 17 of Act
180 but we must only take notice
of the point turning on its
infraction if the appeal on
which the application for stay
of execution to the Court of
Appeal was competent. I do not
accept the proposition that
where an order of a superior
court has been made in violation
of a statutory provision then
once that comes to the notice of
a court the said order can be
vacated even though the court
which takes cognizance of the
invalidity of the order is
without jurisdiction in the
matter. It has been reiterated
by our courts several times that
appeals are creatures of statute
and when the time frame provided
for initiating them has run
out, an appellate court cannot
merely because of the invalidity
of the order assume jurisdiction
in the matter so as to undo the
order. I do not speak of other
means of redress available to a
party other than an appeal such
as the supervisory jurisdiction
of this court which could have
been resorted to for the purpose
of avoiding the order of the
Court of Appeal. Once the
application before us is
predicated upon an appeal
process that was filed out of
time, we have no discretion in
the matter than to declare that
we are without jurisdiction as
the jurisdiction of the Court of
Appeal in the application for
stay of execution on which the
proceedings herein turn was
improperly invoked. In my
opinion, the time frame for
appealing like the statute of
limitation is not concerned with
merits. Once the axe falls, it
falls and leaves the court with
no discretion in the matter.
Further to this, I observe that
while the special resolution of
the company that authorized its
winding up was made on 15
October 2009, the
applicant-company did not make
this crucial fact known to the
High court in the course of the
hearing of the application for
stay of execution. In my view
this omission prevented the
court from taking into account
the provisions of section 17 of
Act 180 that arises from a mixed
question of fact and law. Not
having made this fact known to
the High Court, I am in a
difficulty whether the
application to the Court of
Appeal being a repeat one could
have been founded on facts which
though in existence at the time
the application was first made
to the High Court were never
placed before the court. The
position would have been
different if the point on which
section 17 of Act 180 turns is
purely legal as was said by this
court in the case of A-G v
Faroe Atlantic Co Ltd
[2005-2006] SCGLR 271 and in
particular holding 8 at page
279. I think that a repeat
application though made
subsequent in point of time to
that of the trial court may
include facts which have arisen
since the making of the previous
application but cannot
competently contain facts which
were in existence at that time
but were not in evidence as to
do so would be inviting the
appellate court-the Court of
Appeal in this case, to consider
a case quite different from that
before the trial court. We
cannot allow parties to improve
their cases by introducing new
evidence on appeal except in
exceptional circumstances
provided for by the rules of
court. To do otherwise would
undermine the authority of lower
courts and would hurt the
integrity of the judicial
process. In my view, the
applicant armed with the crucial
fact of winding up should have
gone back to the trial court to
have the previous order set
aside. In my thinking the effect
of the winding up being that no
“action or civil proceedings
against the company, other than
proceedings by a secured
creditor for the realization of
the security of that secured
creditor….” shall “be proceeded
with except by leave of the High
Court and subject to such terms
as that court may impose”, is
that the court is obliged to
grant a stay at the behest of
the execution-judgment-debtor or
to refuse leave at the instance
of the
execution-judgment-creditor.
See: (1) Re London and Devon
BiscuitCo (1871) LR 12 Eq.
190 ;( 2) Croshaw v Lyndhurst
Ship Co [1897] 2 Ch. 154. I
am of the opinion that section
17 of the Bodies Corporate
(Official Liquidations) Act
has the effect of a stay of
execution. I also think that the
effect of section 17 of the Act
is similar to what pertains
under section 226 of the
Companies Act of England. See:
Halsbury’s Laws of England,
Volume 7 paragraphs 1359 – 1360
of the Fourth Edition. It is
only when the jurisdiction of
the trial High Court on the
issue had been invoked and
refused that the Court of Appeal
could properly have those facts
in the evidence before it in the
nature of a repeat application
as the fact of the company being
in liquidation arose earlier
than the presentation of the
application for stay of
execution to the High Court.
Writing on the subject, the
learned authors of Halsbury’s
Laws of England, Volume 17 of
the Fourth Edition at paragraph
456 say thus:
“Stay without an Order.
Certain circumstances have the
effect of a stay, thus an order
for winding up a company
operates as a stay of execution
on judgments against the
company, whilst there is also a
statutory discretion given to
the court to stay execution as
soon as a winding up petition is
presented.”
Before us in these proceedings
is a process filed by the
respondent exhibited as GC11
filed on 13 August 2011 under
section 17 of Act 180 that seeks
leave from the High Court to
proceed with the execution
process. I think that this
application enables the court to
exercise the discretion
conferred on it under section 17
of Act 180 to grant or refuse
the leave and or stay
proceedings in the matter.
In my view, when a party does
not place all the facts
available at the time an
application is made to the court
then it should not be competent
for that party in a repeat
application such as that which
was before the Court of Appeal
for stay of execution to be
enabled to raise it for the
first time and thereby create
the impression that the trial
court acted in breach of a
mandatory statutory provision,
the effect of which is that its
order was a nullity. I think
that would not only be going too
far but undermining the role of
trial judges. Before putting
this delivery to a rest, I wish
to say that we cannot under
the authority of Mosi v
Bagyina [1963] 1 GLR 637 in
the course of exercising our
appellate jurisdiction make
pronouncements on the merits
regarding the validity of an
order in respect of which an
appeal was filed out of time.
What we can do is that when the
fact of the invalidity is
brought to our attention in
competent proceedings such as
judicial review and or in the
case of a fresh action as was
done by Abban J (as he then was)
in the case of Okomfo Afuah v
Sarbah [1974] 1 GLR 147
refuse to give validity to it
and set it aside on the grounds
of the absence of
jurisdiction.In the Okomfo Afuah
case (supra), the learned trial
judge did not only refuse to
consider a decision made by a
local court previously without
jurisdiction as constituting res
judicata but also set the
judgment aside.
I do not think that this case is
an authority for us to ignore
time frames laid down for law
for the initiation of appeals.
Besides, it being a judgment of
the High Court is of persuasive
effect only. The appellate
jurisdiction does not give us
scope to consider factual
matters that were not made
available to lower courts.
For the above reasons, I
proceed to dismiss the
application for stay of
execution.
N.
S. GBADEGBE
JUSTICE OF THE SUPREME COURT
ATUGUBA,
J.S.C:
I have had
the advantage of reading the
opinion of my worthy brother
Gbadegbe J.S.C. It is to the
effect that the Ruling of the
High Court dated 12/3/2010
refusing to set aside the
registration of the foreign
judgment herein is interlocutory
and therefore the appeal
therefrom dated 21/4/2010 being
filed outside 21 days is a
nullity, wherefore all pursuant
processes founded on the same
are also nullities and
consequently this court lacks
jurisdiction to entertain the
applicant’s repeat application
for stay of execution.
The question
whether a judgment or order is
final or interlocutory has
defied the courts here and in
England to such an extent that
the Legislatures in both
countries have simply enacted
that such a question should be
finally determined by the
appellate court when it arises
in a case under appeal. This
problem has persisted even
though in England and Ghana the
judicial test for finality has
been harmonised in favour of
Lord Alverstone C. J.’s test in
Bozson v. Altrincham UDC
(1903) 1 K.B. 547 at 548 namely
whether the effect of the order
made is to finally dispose of
the parties’ rights. Thus in
Haron bin Mohd Zaid v. Central
Securities (Holdings) Bhd
(1982) 2 All ER 481, P.C. at
page 486, the Privy Council per
Sir William Douglas delivering
the judgment of the court in an
appeal from the judgment of the
Federal Court of Malaysia, said:
“It appears
to their Lordships that the
Federal Court … has established
over the years a settled
practice of applying Lord
Alverstone CJ’s test in the
Bozson case in order to
determine whether an order is
final or interlocutory. Their
Lordships are unable to find any
error in this reasoning; on the
contrary their Lordships feel
entitled to say that the test is
both sound and convenient.”
Though it is
sometimes easier to apply this
test to judgments delivered on
the merits of a case it is not
so easy when it is to be applied
to an order. Thus in Atta
Kwadwo v. Badu (1977) 1 GLR
1 C. A. at pages 4 to 5 Apaloo
J.A. (as he then was) delivering
the judgment of the Court of
Appeal quoted a passage from
Halsbury’s Laws of England (3rd
Edition) Vol. 22 at page 742
thus:
“a
judgment or order may be final
for one purpose and
interlocutory for another, or
final as to part and
interlocutory as to part.
The meaning of the two words
must therefore be considered
separately in relation to the
particular purpose for which it
is required.” (e.s.)
In that case
it was held that an order
striking out an action following
discontinuance, with costs,
though “with liberty for
fresh action” is a final
one. However, one tends to agree
with Adade JSC in Pomaa v.
Fosuhene (1987-88) 1 GLR 244
S.C. that such an order, in view
of the reservation of liberty as
to fresh action is not final
since that very order implies
that nothing has been decided
between the parties. The
Pomaa case held that a
judgement of declaration
obtained upon on admissions is
final. One also tends to agree
with the decision of the Court
of Appeal in Tawiah v. Brako
(1973) 1 GLR 483 C.A. that a
ruling on an application to set
aside a writ of fi.fa.is
final. Clearly, in the latter
case the rights of the parties
involved in such an application
depend on whether the writ of
fi.fa. should be set aside
or not.
On the other
hand it has been held in
Agoti v. Agbenoku (1978) GLR
14 C. A. that a decision on an
interpleader summons is
interlocutory since it arises
out of some other matter. One
cannot consider all the numerous
decision of this court on this
question of finality,
seriatim. However, applying
the decisions so far referred to
particularly in the light of
Ghana Football Association v.
Apaade Lodge Ltd (2009)
SCGLR 100 which applied
Morkor v. Kuma (1998-99)
SCGLR 620 one would have thought
that the Ruling appealed from is
final.
Nullity
In any event
this matter cannot be disposed
of solely on the final or
interlocutory nature of the said
Ruling. The applicant has
contended that the order
appealed from is a nullity
because it is one prohibited by
section 17 of the Bodies
Corporate (Official Liquidation)
Act, 1963 (Act 180). If that
contention be right then time
cannot deprive this court of
jurisdiction to entertain this
application. It has persistently
been held that a judgment or
order obtained without
jurisdiction can be set aside at
any time (though an utter abuse
of the process is another
matter). The celebrated case of
Mosi v. Bagyina (1963) 1
GLR 637 S.C. still reigns on
this issue, see Republic v.
High Court (Fast Track Division)
Accra; Ex parte Speedline
Stevedoring Co. Ltd (Dolphyne
Interested Party)
(2007-2008) SCGLR 102 and The
Republic v. The Court of Appeal,
Anthony Thomford, Ex parte Ghana
Chartered Institute of Bankers
J5/21/2001 S.C. dated 22/6/2011,
unreported.
It is true that in Republic
v. Asogli Traditional Council;
Ex parte Amorni VII (1992) 2
GLR 347 Acquah J (as he then
was) tried to clip the wings of
this principle by seeking to
confine it to the court which
made the void order. However
such a distinction cannot hold
good in view of the decisions of
this court referred to supra. On
the contrary the view of Abban J
(as he then was) in Republic
v. Commissioner for Local
Government; Ex parte Nii Amar II
(1975) 2 GLR 122 at 128 that
“The
principles enunciated in Mosi’s
case are so fundamental that
they cannot in any way be
compromised, neither can they
tolerate any exception in favour
of any court, be it a
tribunal or a committee of
enquiry. I therefore … hold that
once a decision is void, no
matter the court or the tribunal
from which it emanates, it is
void for all time and, as laid
down in Mosi’s case, there will
be no time limit within which
steps should be taken to quash
it.” (e.s), prevails.
After all,
the essence of the principle of
Mosi v. Bagyina supra, as
earlier laid down by Akufo-Addo
JSC (as he then was) in
Ghassoub v. Dizengoff (W.A.)
(1962) 2 GLR 133 SC at page 137
is that “ lapse of time can
never render valid that which is
void ab initio.” (e.s). That
being so it means that the
effect of lapse of time on “that
which is void” should be the
same wherever such a void matter
falls for consideration and
cannot with any logic be
confined only to the court which
made it. I must however remark
that that principle was
enunciated in the context of
breach of originating time
limits prescribed, as in this
case by subsidiary legislation.
I will desist from pronouncing
obiter as to the case of breach
of time limits under substantive
legislation.
For the
foregoing reasons as aforesaid,
it is clear that if the order of
the
High Court
dated 12/3/2010 is a nullity is
matters not that the appeal upon
which the present application
has been brought out of time.
Indeed in Okomfo Afuah v.
Sarbah (1974) 1 GLR 147 at
page 160 Abban J (as he then
was) stated this principle in no
uncertain terms thus:
“ With great
respect to the learned High
Court judge, since it was
crystal clear to him that at the
time the judgment was delivered,
the local court had completely
been deprived if jurisdiction,
the judgment, as I have said,
was a nullity and the appellant
was entitled, ex debito justitae,
to have it set aside. The
learned judge therefore had an
inherent jurisdiction, even on
his own motion, to set is aside
irrespective of the fact that
the notice of appeal was filed
out of time. Because “there
is no time limit in which the
party affected by a void order
or judgment may apply to have it
set aside”: Mosi v. Bagyina
(1963) 1 G.L.R. 337 at page 347,
S.C. per Akufo-Addo J.S.C. (as
he then was).
The dismissal of the appeal
by the High Court on 6 November
1964, did not therefore convert
the local court judgment into a
valid judgment. A judgment which
is void is void for all time.
However, out of the abundance of
caution, I will here end now and
on my own motion, set aside the
said local court judgment, and
it is accordingly set aside.” (e.s)
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