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Practice
and Procedure - Stay of
proceedings - Article 134(b) of
the Constitution and Rule 73 of
the Supreme Court Rules, 1996
C.I. 16 - Whether
a party permits can apply to the
court for a stay of proceedings
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HEADNOTES
This is an application for a
stay of proceedings in respect
of two orders made by this court
on the 8th of June
2017. The first order granted a
temporary charging order in
respect of the shares held by
the judgment/debtor, now
applicant, in certain listed
companies. That order was made
under Order 49 of the High Court
(Civil Procedure) Rules, 2004,
C.I. 47. The second order which
was made under Order 46 rule 2
of C.I. 47 granted leave to the
judgment/creditor, now
respondent, to orally examine
the applicant in respect of
matters specified in the order.
The applicant was not satisfied
with the orders as made. He has
therefore applied on notice to
this court, duly constituted by
a panel of three, by virtue of
article 134(b) of the
Constitution, 1992 to have
another look at the orders and
to set same aside. That
application is yet to be
determined. For the time being,
the applicant is asking the
court to stay the two orders
referred to above. -
HELD :-
The result is that there is no
basis for this application,
meaning there is nothing
advanced before me on which I
can exercise discretion in
favour of the applicant. It is
not sufficient for the court to
stay proceedings simply because
an application for a review has
been filed, in the absence of a
rule of law or practice to that
effect. For these reasons I find
no merit in the application and
accordingly dismiss same.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules, 2004, C.I. 47. Order 49
1992Constitution, article 134(b)
Supreme Court Rules, 1996 C.I.
16. Rule 73
CASES REFERRED TO IN JUDGMENT
THE REPUBLIC v. THE HIGH COURT
(FAST TRACK DIV.) ACCRA; EX
PARTE ANANE AGYEI FORSON-Applicant;
THE ATTORNEY-GENERAL, Interested
Party, Civil Motion JS/29/2014,
dated 5th November
2014
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
BENIN, JSC
COUNSEL.
KEN ANKU FOR THE APPLICANT
GODFRED ODAME, DEPUTY ATTORNEY GENERAL FOR THE RESPONDENT
RULING
BENIN, JSC:-
This is an application for
a stay of proceedings in respect
of two orders made by this court
on the 8th of June
2017. The first order granted a
temporary charging order in
respect of the shares held by
the judgment/debtor, now
applicant, in certain listed
companies. That order was made
under Order 49 of the High Court
(Civil Procedure) Rules, 2004,
C.I. 47. The second order which
was made under Order 46 rule 2
of C.I. 47 granted leave to the
judgment/creditor, now
respondent, to orally examine
the applicant in respect of
matters specified in the order.
The applicant was not satisfied
with the orders as made. He has
therefore applied on notice to
this court, duly constituted by
a panel of three, by virtue of
article 134(b) of the
Constitution, 1992 to have
another look at the orders and
to set same aside. That
application is yet to be
determined. For the time being,
the applicant is asking the
court to stay the two orders
referred to above.
The application for a stay
of proceedings has been brought
under article 134(b) of the
Constitution and Rule 73 of the
Supreme Court Rules, 1996 C.I.
16. Article 134(b) of the
Constitution provides that:
A single Justice of the Supreme
Court may exercise power vested
in the Supreme Court not
involving the decision of the
cause or matter before the
Supreme Court, except that-
(b) in civil matters, any order,
direction or decision made or
given under this article may be
varied, discharged or reversed
by the Supreme Court constituted
by three justices of the Supreme
Court.
Rule 73 of C.I. 16
provides:
An application made pursuant to
article 134 of the Constitution
in respect of any cause or
matter, civil or criminal shall
be by motion on notice and shall
be served on any party who has
an interest in the cause or
matter.
Neither article 134(b) of
the Constitution nor rule 73 of
the CI 16 even remotely permits
a party to apply to the court
for a stay of proceedings.
Indeed both provisions give
direction to a person who is
aggrieved with a decision
rendered by a single justice of
the Supreme Court and who
desires a revision by three
justices of the court. Thus an
application to stay proceedings
cannot be made under these
provisions as they are
completely unrelated.
At the hearing which took
place on the 29th
June 2017 Counsel for the
applicant sought to make amends
by saying they were also coming
under the court’s inherent
jurisdiction. Since CI 16 has no
specific provision that deals
with a stay of proceedings the
court may accept an application
invoking the court’s inherent
jurisdiction to stay
proceedings. Such an application
may also be received by the
court under the common law. The
correct procedure then is to
state in the motion paper that
you are seeking the court to
exercise its inherent
jurisdiction in the matter. Here
again the applicant did not do
so. The question that arises is
whether the court should throw
out the application for the
failure to disclose that they
were proceeding under the
court’s inherent jurisdiction. I
consider that the court’s avowed
aim is to do justice if it has
any jurisdiction to hear and
determine the cause or matter
before it. When we talk of
justice, we look at all the
facts and circumstances of the
case in order to decide on the
justice of the particular
matter. In this case the
applicant wants the court to
take a second look at the orders
made, so to them there will be
justice if nothing is done to
frustrate the said application.
To the respondent justice will
be served if no further delay
occurs in their desire to reap
the fruits of the judgment made
in their favour. In my view
throwing out this application on
this technical ground will not
achieve justice because the
applicant cannot be debarred
thereby from coming back with a
similar application which will
have the effect of further
delaying proceedings, which the
respondent does not desire. I
have therefore decided that, in
the interest of justice to both
parties, it is desirable to deal
with the application exercising
the court’s inherent
jurisdiction.
Counsel for the applicant
agrees that an application for
stay of proceedings is an
exercise in discretion. Thus the
applicant who seeks the court’s
discretion must be forthcoming
with grounds to satisfy the
court that it is not devoid of
merit. The only point that the
applicant argued is the fact
that he has applied for an
expanded bench to set aside the
orders. He does not complain
that the orders are working any
hardship or inconvenience on
him. He does not argue that they
will cause him any irreparable
damage if they are not stayed.
These points were raised by the
learned Deputy Attorney-General
but learned counsel for the
applicant failed to address
these important considerations
when he was offered the
opportunity to do so.
If I understood counsel
for the applicant well, he
thinks that the expanded court
ought to deal with the review
before any further step may be
taken. With that position he
should have come out with the
reasons why the application
stands a chance of succeeding,
in other words that it raises
serious legal and arguable
points. Such points must be
canvassed in this application,
but counsel said they would
reserve them when that
application is argued. The only
points relied on in the
affidavit in support of the
application are contained in the
following depositions:
“6. That I am informed and
verily believe same to be true
that in terms of the
Constitution, 1992 article
134(b) and…..C.I. 16 Rule 73,
the ex parte applications to
examine me orally and for a
temporary charging order to be
placed on any or all of my
shares in the above listed
companies were incompetent.
7. That I am informed and
verily believe same to be true
that in terms of the
Constitution, 1992 article
134(b) a single Justice of the
Supreme Court may exercise power
vested in the Supreme Court not
involving the decision of a
cause or matter before the
Supreme Court in civil matters.
8. That I am informed and
verily believe same to be true
that in terms of…..C.I. 16 Rule
73, an application made pursuant
to the Constitution article
134(b) in respect of any civil
cause or matter shall be by
motion on notice and shall be
served on a party who has an
interest in the civil cause or
matter.
10. That the applications
by the respondent and the
Orders……were made ex parte,
without notice to me in flagrant
violation of the
Constitution…..and the Supreme
Court Rules…..
15. That accordingly, the
Orders for my oral examination
under the High Court Rules, 2004
C.I. 47 Order 46 cannot be
sustained and ought to be stayed
pending the determination of my
application to set aside the
Orders dated 8th June
2017.
These are some of the very
points raised in the application
to set aside the orders slated
for hearing on the 18th
of July 2017 before a panel of
three. I do not wish to state an
opinion thereon, even though I
am entitled to do so as they
have canvassed in support of
this application. It suffices to
say that the applications before
the court were neither founded
on the Constitution nor the
Rules of this Court.; both were
brought under C.I. 47 as earlier
mentioned. Thus it would be
expected that an application
such as this would make
reference to those provisions
and point out where the error
occurred. The applicant in
paragraph 12 of the affidavit in
support of his application to
set aside the orders made
herein-exhibit AAW3- concedes
that an application made
pursuant to order 46 of C.I. 47
could be made ex parte, yet he
failed to make a similar
admission in the instant
affidavit and insists he should
have been served with notice.
This is quite absurd, to say the
least. When a party has
approached a court with an
application and properly invoked
its jurisdiction, another party
who seeks to take steps in the
matter must not select his own
laws and rules of practice which
have no bearing on the earlier
application. The court has dealt
with this matter under C.I. 47
which the applicant concedes was
right, yet he seeks to stop the
process invoking different set
of laws and rules.
It appears the position
taken by the learned counsel for
the applicant was based on the
rather erroneous view that the
court should have applied rule
28 of C.I. 16 and asked the High
Court to enforce the judgment. I
think it is not the duty or
business of Counsel for a
judgment debtor to tell this
court how to enforce or direct
the enforcement of its
decisions, judgments and orders.
The mode of selecting an
enforcement mechanism is the
preserve of the judgment
creditor. Rule 28 is not
mandatory for the court to
comply with, it may invoke it if
it so desires. Thus the fact
that the court did not refer the
enforcement to the High Court is
a matter of no consequence, as
the court has decided that it
has the right, the means and the
power to enforce its own
judgments and orders applying
any existing rules of practice
available in any court in Ghana
by virtue of Article 129(4) of
the Constitution, in the absence
of rules of enforcement under
the Supreme Court Rules, C.I.
16. That was in the matter of
THE REPUBLIC v. THE HIGH COURT
(FAST TRACK DIV.) ACCRA; EX
PARTE ANANE AGYEI FORSON-Applicant;
THE ATTORNEY-GENERAL, Interested
Party, Civil Motion JS/29/2014,
dated 5th November
2014. It was on the strength of
this clear authority that the
applications brought under the
High Court Rules, C.I. 47, in
seeking to enforce this court’s
judgment and order in question,
were admitted and determined by
the Court.
The result is that there
is no basis for this
application, meaning there is
nothing advanced before me on
which I can exercise discretion
in favour of the applicant. It
is not sufficient for the court
to stay proceedings simply
because an application for a
review has been filed, in the
absence of a rule of law or
practice to that effect. For
these reasons I find no merit in
the application and accordingly
dismiss same.
A. A. BENIN
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
KEN ANKU FOR THE APPLICANT
GODFRED ODAME, DEPUTY ATTORNEY
GENERAL FOR THE RESPONDENT
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