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BENIN, JSC:-
Ordinarily, this Court does not
permit oral applications to be
made. However, I permitted
Counsel for the 3rd
Defendant/judgment/debtor herein
to make an oral application that
goes to jurisdiction of the
Court to entertain application
for a claim of interest by a
party affected in the process of
execution. I allowed the oral
application partly because the
lead Counsel for the 1st
Defendant/judgment/creditor did
not disapprove of it and was
ready to reply to the arguments.
But I must caution that oral
application is not the normal
practice of this Court and this
should be taken as an exception
and not as precedent.
Counsel's argument was based on
Order 44 rules 12 and 13(4)(5)
of the High Court (Civil
Procedure Rules) 2004, C. I. 47.
He stated that under the said
rule 13(5) a party aggrieved by
the court's decision has the
right to appeal within 14 days.
He submitted therefore that the
rules of appeal cannot be
invoked since there is no right
to appeal against the decision
of the Supreme Court.
Consequently, he submitted that
the execution processes should
be carried out in the High
Court. Counsel for the claimant
UT Bank added his voice to these
submissions and stressed that in
the context of interpleader
proceedings the party must have
the right to appeal.
In response to these arguments,
lead counsel for the 1st
Defendant/judgment/creditor
argued that the court is
exercising its right to enforce
its decision which is not
inspired by the High Court
rules. That the Court derives
its jurisdiction from article
129(4) of the Constitution. The
original matter derived from the
Court's exclusive jurisdiction
and the Court decided to enforce
its own judgment. Counsel stated
further that it is not the rules
of court which confer right to
appeal. To him, this application
is a red-herring.
In the case of Republic v. High
Court (Fast Track Division),
Accra; Ex parte Anane Agyei
Forson (Attorney-General
Interested Party) (2013-2014) 1
SCGLR 690, this court decided
that it has jurisdiction and
power to enforce its own
decisions. Following that
decision, the court embarked on
the process of enforcing the
decision made in favour of the 1st
Defendant/judgment/creditor. In
the course of the enforcement
proceedings, the UT Bank acting
per its Receivers, brought a
claim of interest against some
properties attached in
execution. The present objection
is in regard to the Court's
jurisdiction in respect of the
interpleader claim which counsel
believes will deny a losing
party the right to appeal.
This objection throws into
question the decision in Ex
parte Anane Agyei-Forson, supra,
wherein the Court decided that
it has the jurisdiction to
enforce its own decisions. In
that decision the court
acknowledged that it does not
have rules of enforcement. But
article 129(4) permits the Court
to assume any power that any
court possesses in dealing with
a matter before it. The said
article 129(4) provides:
‘For the purposes of hearing and
determining a matter within its
jurisdiction and the amendment,
execution or the enforcement of
a judgment or order made on any
matter, and for the purposes of
any other authority, expressly
or by necessary implication
given to the Supreme Court shall
have all the powers, authority
and jurisdiction vested in any
court established by this
Constitution or any other law.’
In assuming such power it is not
envisaged or contemplated that
this Court has thereby been
placed in the same status or
position as the court whose
power, authority or jurisdiction
it has assumed. The Court
retains its status as the apex
court whose decisions are not
subject to appeal. This is a
constitutional edict and so
whether assumption of the lower
court's power curtails a party's
right of appeal or not, is a
matter of no moment.
Let me pause here and refer to
Rule 5 of the Supreme Court
Rules, 1996, C. I. 16 which
provides that:
“Where no provision is
expressly made by these rules
regarding the practice and
procedure which shall apply to
any cause or matter before the
court, the court shall prescribe
such practice and procedure as
in the opinion of the court the
justice of the cause or matter
may require.”
It is because the Court has no
rules of enforcement, that
exercising the powers granted it
under article 129(4), it decided
to prescribe the enforcement
provisions applicable under C.
I. 47 bearing in mind rule 5 of
C. I. 16. The Court is only
applying the procedure, but is
unaffected by rules on appeal.
When this Court exercises its
power under any jurisdiction
that it has, the party affected
has only a right of review, as
the Constitution does not grant
the right to appeal. If this
objection is upheld, it would
clearly undermine the
effectiveness and purpose of
article 129(4) of the
Constitution in the sense that
the Court will have to look
beyond its shoulders to find out
whether a party’s right to
appeal is truncated by the
assumption of the power,
authority or jurisdiction and if
does then it should refrain from
the exercise and refer the
matter to that court. The clear
import of this scenario is that
this Court will then be
surrendering the jurisdiction it
has to hear the matter to a
lower court. This in itself is
unconstitutional.
In short, when this Court acts
under article 129(4) of the
Constitution or under rule 5 of
C. I. 16 and applies the rules
and practice applicable to a
particular court, it does not
assume the status or position of
that court; it is exercising an
original jurisdiction in that
regard, and its decision is not
subject to the post-judgment
process applicable in the court
below, but subject to only the
right of review available in
this court.
For these reasons, I overrule
the objection as misplaced and
misconceived.
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
A. A. ACKUAKU JUNIOR FOR THE
CLAIMANT.
GODFRED YEBOAH DAME, DEPUTY
ATTORNEY-GENERAL, WITH HIM MS.
YVONNE BANNERMAN, S. S. A., MS.
NANCYNETTA TWUMASI ASIAMAH, S.
A., MS. ZEINAB AYARIGA, A. S. A.
AND MS. AUREOL ASARE KWARTENG,
A. S. A. FOR THE 1ST
DEFENDANT/JUDGMENT/CREDITOR.
OSAFO BUABENG WITH HIM PETRONA
DEFIA AND BENEDICTA ANTWI FOR
THE 3RD
DEFENDANT/JUDGMENT/DEBTOR.
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