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Execution - Invoking of
the original jurisdictionof the
Supreme Court - Whether the
Attorney-General,
is
the sole and Constitutional body
entrusted with the
responsibility to represent the
Government of Ghana in Civil
proceedings - Whether the
Attorney-General, in this
application can proceed by
resorting to judicial processes
regulating execution of
judgments -
HEADNOTES
The applicant herein, was sued
together with the first two
defendants in this case by Mr.
Martin Alamisi Amidu under
Article 2 of the 1992
Constitution by invoking our
original jurisdiction. The
review bench of this court in
aunanimous ruling ordered the
applicant herein to pay to the
Government of Ghana an amount of
money which appears to be
substantial. As the sole and
Constitutional body entrusted
with the responsibility to
represent the Government of
Ghana in Civil proceedings, the
Attorney-General, the first
respondent in this application
proceeded to levy execution by
resorting to judicial processes
regulating execution of
judgments.
In course of executing the
judgment, the applicant herein
filed a motion for determination
HELD :-
In
our respectful view, it behoves
the applicant to demonstrate
convincing and sufficient
reasons for us to halt the
levying of execution under
Article 2 of the Constitution
which enjoins the
Attorney-General to strictly
obey the orders of this court
and proceed to enforce them. We
have given serious thought to
the submissions urged before us
but we find no merits in this
application. We accordingly,
for the reasons canvassed supra,
proceed to dismiss this
application and same is thus
dismissed.
STATUTES REFERRED TO IN JUDGMENT
SUPREME COURT RULES, 1996
(C.I.16) RULE 73
CASES REFERRED TO IN JUDGMENT
on 29/07/2014 as: AMIDU No.3 v
ATTORNEY-GENERAL, WATERVILLE
HOLDINGS (BVI) & WOYOME
(No.2) [2013-2014] ISCGLR 606
BOOKS REFERRED TO IN JUDGMENT
Atkin’s ENCYCLOPEDIA OF COURT
FORMS IN CIVIL PROCEEDINGS
(second edition, volume 35),
REPUBLIC v COMMITTEE OF INQUIRY
(R.T. BRISCOE (GHANA LTD));
EXPARTE R.T. BRISCOE GHANA LTD [1976]
IGLR 166 CA
BRUTUW v AFERIBA & ORS [1979]
GLR 566
DELIVERING THE LEADING
JUDGMENT
YEBOAH, JSC:-
COUNSEL
OSAFO- BUABENG
FOR THE
3RD
DEFENDANT/APPLICANT.
GODFRED YEBOAH-DAME,
DEPUTY ATTORNEY GENERAL WITH HIM
IS MRS. DOROTHY AFRIYIE-ANSAH,
CHIEF STATE ATTORNEY FOR THE
1ST DEFENDANT/
RESPONDENT.
RULING
YEBOAH, JSC:-
On the 21/11/2017 we heard arguments
in this matter which was for
stay of proceedings in this
court and given the nature of
the case, we adjourned it to
today for our ruling.
To appreciate the reasons for this
ruling, some brief facts of this
case may suffice. The applicant
herein, Mr. Alfred Agbesi Woyome
was sued together with the first
two defendants in this case by
Mr. Martin Alamisi Amidu under
Article 2 of the 1992
Constitution by invoking our
original jurisdiction. The
review bench of this court in a
unanimous ruling delivered by my
worthy brother Dotse, JSC on
29/07/2014 as: AMIDU No.3 v
ATTORNEY-GENERAL, WATERVILLE
HOLDINGS (BVI) & WOYOME (No.2)
[2013-2014] ISCGLR 606 ordered
the applicant herein to pay to
the Government of Ghana an
amount of money to the tune of
GH51,283,480.59 which appears to
be substantial. As the sole and
Constitutional body entrusted
with the responsibility to
represent the Government of
Ghana in Civil proceedings, the
Attorney-General, the first
respondent in this application
proceeded to levy execution by
resorting to judicial processes
regulating execution of
judgments.
In course of executing the judgment,
the applicant herein filed for
our determination, this motion
and headed same as:
MOTION ON NOTICE
PURSUANT TO ARTICLES 40 & 134 OF
THE CONSTITUTION, 1992 & THE
SUPREME COURT RULES, 1996
(C.I.16) RULE 73 FOR THE STAY OF
FURTHER EXECUTUON PROCEEDINGS
PENDING THE FINAL
DETETERMINATION OF MATTER BEFORE
AFRICAN COURT ON HUMAN AND
PEOPLES’ RIGHTS
Learned counsel for the applicant Mr.
Osafo-Buabeng, drew our
attention to various exhibits
clearly showing that the
applicant had actually filed an
application on 4/09/2017 at the
African Court on Human and
Peoples’ Rights and same had
been responded to by the
respondent to this application.
The pendency of the application
is therefore free from doubt.
Learned counsel for the applicant Mr.
Osafo-Buabeng in moving the
application submitted that as
the matter is actively pending
before the African Court on
Human and Peoples’ Rights to
determine the issues of human
and peoples’ rights affecting
the applicant, it would be fair
and just for the Government of
Ghana as a signatory to the
Protocol of the African Charter
on Human and Peoples’ Rights on
the Establishment of an African
Court on Human and Peoples’
Rights which Ghana had ratified
in its Parliament on 25th
August, 2004 to stay the
proceedings till the final
determination of the proceedings
pending at Arusha, Tanzania.
We have given this submission by
learned counsel serious thought.
However, in our opinion, this
submission clearly lost sight of
the fact that the action by
Martin Alamisi Amidu, which
culminated in this execution
process as pointed out was
brought under Article 2 of the
Constitution. This court gave
orders for payment of the money
by the applicant to the
Government of Ghana. (The
Government of Ghana) and the
Respondent herein must as a
matter of course enforce the
judgment in compliance with
Article 2 clauses (2) (3) and
(4) of the Constitution which
for a fuller record is
reproduced thus:
2 (2). The Supreme
Court shall for the purposes of
a declaration under clause (1)
of this article, make such
orders and give such directions
as it
may consider
appropriate for giving effect,
or enabling effect to be given,
to the declaration so made.
(3). Any
person or group of persons to
whom an order or direction is
addressed under clause (2) of
this article by the Supreme
Court, shall duly obey and carry
out the terms of the order or
direction
(4). Failure to obey
or carry out the terms of an
order or direction made given
under clause (2) of this article
constitutes a high crime under
this constitution and shall in
the case of the President or
Vice-President, constitute a
ground for removal from office
under this constitution.
[emphasis ours].
This is a clear and ambiguous
provision of the Constitution,
which imposes strict compliance
by President and the
Vice-President. The failure to
comply with the directions from
this court could lead to their
impeachments. The breach of the
above directions therefore has
far-reaching consequences. It
therefore follows that an
ordinary citizen like the
applicant herein must strictly
comply with the directions given
by this court in the exercise of
its original jurisdiction.
In our respectful opinion, the
Attorney-General in representing
the Government of Ghana by
executing the judgment under
Article 88 of the Constitution
is carrying out the
constitutional duties imposed on
it and no more. The
constitution of a sovereign
state like Ghana is supreme and
all institutions of state derive
their authority from it. We
find the execution of the
judgment by the respondent
herein as a step to fulfill a
constitutional mandate imposed
on it when Article 2 is read in
conjunction with Article 88. We
therefore find no merit in the
submission by learned counsel
for the applicant herein.
Another interesting point raised by
counsel was the fact that if
proceedings are not stayed and
execution proceeds before the
application is heard by the
African Court on Human and
Peoples’ Rights, his client
would be a loser as the
enforcement of the judgment is
against his human rights. In
applications of this nature, a
court of record expects an
applicant who claims an
infringement of his human rights
to demonstrate by evidence, be
it in the affidavit or in any
accepted form to furnish the
court of record with such
violations, if any. Our
constitution, under chapter 5 of
the Constitution titled:
FUNDAMENTAL HUMAN RIGHTS AND
FREEDOMS, has spelt out copious
provisions from Articles 12 to
33 affording the citizenry
exhaustive human rights and
freedoms never before known in
our previous constitutions. The
applicant, however, could not
refer to any of the provisions
in the constitution or any
statutes whatsoever to
demonstrate any breaches of such
rights and freedoms. We
accordingly find such
submissions factually
unsupported by any evidence on
record to assist this court to
determine its relevance in
favour of the applicant. We
therefore cannot determine any
such rights or freedoms which
have been breached by the
respondent.
We would have rested the determination
of this application at this
stage but the resort to
applications for stay of
proceedings in our courts on
regular basis by parties has
dawned on us the need to state
the basis for such
applications. An application
for stay of proceedings is to
prevent or put on hold a case
that is progressing in court and
is regarded as a very serious
step and should not ordinarily
be invoked at will. It is part
of a superior courts’ inherent
jurisdiction which should be
invoked with utmost care. In
Atkin’s ENCYCLOPEDIA OF COURT
FORMS IN CIVIL PROCEEDINGS
(second edition, volume 35), the
reknowned author stated the law
succinctly at page 150 thus:
“A stay of
proceedings arises when under an
order of the court proceedings
which are pending in that court
are brought to a halt at the
stage which they have reached,
so that while the stay is in
operation the parties are
precluded from taking further
step in the proceedings”
The learned author continues at the
same page thus:
“For this reason a
stay of proceedings is always a
very serious and grave step, for
its consequences may be of
far-reaching importance for the
parties. The general rule of
procedural law is that a
litigant is entitled to have his
claim to the relief or remedy
which he seeks tried on the
substantive merits of the case,
and therefore a stay of
proceedings is a discretionary
jurisdiction which ought to be
very sparingly exercised and
only in very exceptional cases”
[emphasis ours]
The law on stay of proceedings has
been settled in cases like
REPUBLIC v COMMITTEE OF INQUIRY
(R.T. BRISCOE (GHANA LTD));
EXPARTE R.T. BRISCOE GHANA LTD
[1976] IGLR 166 CA and BRUTUW
v AFERIBA & ORS [1979] GLR
566 which affirm the common law
principles that a stay of
proceedings would be granted if
there were special circumstances
for its grant. The burden is
thus on the applicant to show by
available materials that there
exists the grounds for its grant
to allow a court to put a
temporal halt to the
proceedings.
In our respectful view, it behoves the
applicant to demonstrate
convincing and sufficient
reasons for us to halt the
levying of execution under
Article 2 of the Constitution
which enjoins the
Attorney-General to strictly
obey the orders of this court
and proceed to enforce them.
We have given serious thought to the
submissions urged before us but
we find no merits in this
application. We accordingly,
for the reasons canvassed supra,
proceed to dismiss this
application and same is thus
dismissed.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
OSAFO- BUABENG
FOR THE
3RD
DEFENDANT/APPLICANT.
GODFRED YEBOAH-DAME,
DEPUTY ATTORNEY GENERAL WITH HIM
IS MRS. DOROTHY AFRIYIE-ANSAH,
CHIEF STATE ATTORNEY FOR THE
1ST
DEFENDANT/RESPONDENT. |
