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Practice and
Procedure – Non service –
Pre-Export Facility - Judicial
sale - Mortgage property - Stay
of execution - Interlocutory
injunction -
HEADNOTES
The plaintiff
sued the Defendants in the High
Court, Accra claiming the The
recovery of $30,808.30 or its
cedi equivalent being the
balance of the Pre-Export
Facility account as at 1st
December, 2000. Interest on the
said sum at the current bank
rate from 1st
December 2000 till date of final
payment, or in the alternative
the judicial sale of the
mortgage property used by the 2nd
Defendant to secure the
Pre-Export Facility, After the
conclusion of the hearing
judgment, after several
adjournments was delivered on
the 8th day of
January 2009, for inter alia,
$80,000 or its cedi equivalent
and Gh¢5,000.00 costs on the
defendants’ counterclaim. The
applicant, claiming non service
on it of any notice of the date
for judgment first moved the
High Court on 10/9/2009 to set
aside both the delivery of
judgment and its entry and for
interim stay of execution of the
same. This application was
dismissed the applicant filed an
appeal against the Ruling
dismissing its said application
and also against the judgment
dated 8/1/2009 aforesaid. It
thereupon as a second step,
applied to the High Court for
stay of execution but same was
dismissed. The applicant’s
third step was to repeat its
application for stay before the
Court of Appeal, but withdrew
the same. Its fourth step was to
file on 15/4/2010 an application
for interlocutory injunction
pending appeal.
HELD
In the
special circumstances of this
case the entry of judgment in
the High Court filed on
28/7/2009 dated the 8th
day of January 2009 is hereby
suspended pending the
determination of the applicant’s
appeal to this court from the
Ruling of the Court of Appeal.
STATUTES
REFERRED TO IN JUDGMENT
Court of
Appeal Rules 1997 CI. 19
Supreme Court
Rules 1996 CI.16
1992
Constitution
High Court
Civil Procedure Rules, CI 47
CASES
REFERRED TO IN JUDGMENT
In Re Yendi
Skin Affairs; Yakubu II v.
Abdulai
(1984-86)2 GLR 231 S.C
Republic v.
General Legal Council
Disciplinary Committee; Ex parte
Aboagye da Costa
(1989 – 90) 2
GLR 164 C.A
Republic v
High Court, Tema; Ex parte Kofi
(1999-2000) I GLR 61 C.A.,
Lee v. Walker
(1985) 1 All ER 781 C.A.
Baiden v
Ansah
(1973) I GLR 33
Joseph v
Jebeile
(1963) I GLR 387 SC
Republic v
Circuit Court Registrar; Ex
parte Arthur
(1980) GLR 309 C.A
Vanderpuije
v. Akwei
(1971) I GLR 242.
Secretary of
State for Trade and Industry v
Bannister
(1996) 1 All ER 993 C.A.
A v.
Liverpool City Council
(1982) AC 363
R v. Criminal
Injuries Compensation Board
(1977)1 All ER 171 C.A
Ameyibor v.
Komla
(1980) GLR 821 C.A
Mosi v.
Bagyina
(1963) 1 GLR 337 S.C
Republic v.
High Court, Accra; Ex parte
Allgate Co. Ltd (Amalgamated
Bank Ltd Interested Party)
(2007-2008) SC GLR 1041
Jonesco v.
Beard
(1930) A.C. 298 H.L.
Republic v.
Court of Appeal, Ex parte Ghana
Commercial Bank Pensioners
Association
(2001 – 2002)1 GLR 502 S.C
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ATUGUBA,
J.S.C:
COUNSEL
ANASTASIA
AKUOKO FOR APPLICANT.
A. A.
SOMUAH ASAMOAH FOR
DEFENDANT/RESPONDENT.
JUDGMENT
ATUGUBA,
J.S.C:
The
plaintiff/Appellant/Appellant/Applicant
sued the Defendants/Respondents
in the High Court, Accra
claiming:
“a)
The
recovery of $30,808.30 or its
cedi equivalent being the
balance of the Pre-Export
Facility account as at 1st
December, 2000.
b)
Interest on the said sum at the
current bank rate from 1st
December 2000 till date of final
payment.
c) In addition to
or in the
alternative the judicial sale of
the mortgage property used by
the 2nd Defendant to
secure the Pre-Export Facility.”
After the
conclusion of the hearing
judgment, after several
adjournments was delivered on
the 8th day of
January 2009, for inter alia,
$80,000 or its cedi equivalent
and Gh¢5,000.00 costs on the
defendants’ counterclaim.
The
applicant, claiming non service
on it of any notice of the date
for judgment first moved the
High Court on 10/9/2009 to set
aside both the delivery of
judgment and its entry and for
interim stay of execution of the
same. This application was
dismissed
on
21/1/2010. On 29/1/2010
the
applicant filed an appeal
against the Ruling dismissing
its said application and also
against the judgment dated
8/1/2009 aforesaid. It
thereupon as a second step,
applied to the High Court for
stay of execution but same was
dismissed. The applicant’s
third step was to repeat its
application for stay before the
Court of Appeal, but withdrew
the same.
Its forth
step was to file on 15/4/2010 an
application for interlocutory
injunction pending appeal. In
the meantime it obtained,
(having earlier failed in the
High Court), leave of the Court
of Appeal on 16/6/2010 to amend
its notice of appeal by deleting
that part thereof relating to
the original judgment dated
8/1/2009.
When its
application for interlocutory
injunction in the High Court was
dismissed on 28/7/2010 the
applicant repeated its
application for the same at the
Court of Appeal. The Court of
Appeal dismissed the
application, holding per Akamba
J.A as follows:
“The only
appeal referable to the present
application is that filed on 29th
January 2010 which, at best, is
an appeal against the ruling of
His Lordship Abdullah Iddrisu J,
delivered on 21st
January 2010 refusing to stay
execution of the decision of the
High Court dated 8th
January 2009. Incidentally
this ruling of 21st
January 2010 is not executable
and could not ground the
interlocutory application before
us. The present application
being an application for
interlocutory injunction pending
appeal should properly be
premised upon an appeal before
us. As would be observed the
applicant failed to file an
appeal against the decision of
the High Court sought to be
restrained i.e the decision
delivered on 8th
January 2009. We have no
option than observe that in the
absence of such an appeal the
present application for
interlocutory injunction is not
properly premised. As indicated
supra, the peculiar jurisdiction
of the Court of Appeal demands
that this court’s jurisdiction
be invoked upon the filing of an
appeal, properly so called.”
Pursuant to
this Ruling the applicant on
21/12/2010 appealed to this
court. The applicant then
unsuccessfully repeated in the
Court of Appeal its application
for interlocutory injunction
pending appeal. Hence the
present application before this
court “for an order of
interim injunction to restrain
the
Defendants/Respondents/Respondents
and the Deputy Sheriff from
enforcing the judgment of the
High Court irregularly delivered
by Her Ladyship INKUMSAH
ABBAN dated 8th
January, 2009...” (e.s)
The applicant
relies particularly on the
decision of this court in
In Re
Yendi Skin Affairs; Yakubu II v.
Abdulai (1984-86)2 GLR 231
S.C in which this court
granted a stay of execution
pending appeal subject to terms
including injunctions. This
court held as stated inter alia
in holding (1) of the headnote
that “Where, however, an appeal
had to delay from one cause or
another, either party was
entitled, by applying to the
court, to seek such interim
remedies as would protect his
interests, if he should
eventually win the appeal.”
It is to be
observed however that this court
did not in the In re Yendi
case seek to overthrow the
statutory framework for stay of
execution of judgments. Indeed
the applicant’s application for
stay of execution was based on
rule 20 of CII3.
Remedies not
expressly provided for
Nonetheless
the Rules of Court cannot cover
every conceivable situation that
may arise pending the
determination of an appeal.
Clearly, for example, the
judgment creditor who has had a
stay of execution granted
against him may, like his
counterpart in the In re
Yendi case, be faced with
certain serious detriments from
the judgment-debtor’s
activities. Yet there is no
provision in CI.16 offering him
relief. In such a situation as
was held, it is reasonable to
grant an injunction to protect
his interests pending the
determination of an appeal even
though no express rule in CI.16
warrants such a course.
Some other
examples of interlocutory
reliefs granted though not
expressly covered by the Rules
of Court are, a suspension of a
disciplinary sanction imposed on
a lawyer pending the
determination of his appeal -
see
Republic v. General Legal
Council Disciplinary Committee;
Ex parte Aboagye da Costa
(1989 – 90) 2 GLR 164 C.A.
or the suspension of a fine for
contempt pending appeal, see
Republic v High Court, Tema; Ex
parte Kofi (1999-2000) I GLR
61 C.A., Lee v. Walker
(1985) 1 All ER 781 C.A.
Further examples are a
suspension of execution pending
the determination of an
application for review of an
order granting leave to levy
execution see
Baiden
v Ansah (1973) I GLR 33,
a registrar’s suspension of
execution pending the hearing of
a pending motion for stay of
execution, see
Joseph
v Jebeile (1963) I GLR 387
SC and Republic v Circuit
Court Registrar; Ex parte Arthur
(1980) GLR 309 C.A at 312, 315
or even stay of proceedings
pending appeal in another case,
the outcome of which is relevant
to the case at hand, see
Vanderpuije v. Akwei (1971)
I GLR 242.
Settled
Powers of the Courts
The foregoing
instances of power of suspension
of execution or of proceedings
can be justified in several
ways. They maybe settled
practices of the court. They
may be inherent powers. They
may be determined or justified
under the residual powers of the
court under r.7 of CI. 19 in the
case of the
Court of
Appeal or under r.5 of
CI.16
of this court. Furthermore they
are covered by article 126(2) of
the 1992
Constitution which provides
thus: “(2) The Superior Courts
shall be superior courts of
record and shall have the
power to commit for contempt to
themselves and all such
powers as were vested in a court
of record immediately before the
coming into force of this
Constitution.” (e.s). It is
such powers as have been
referred to strongly by judges
of high authority in such cases
as
Secretary of State for Trade and
Industry v Bannister (1996)
1 All ER 993 C.A.
As was
bluntly put by Lord Wilberforce
in A
v. Liverpool City Council
(1982) AC 363 at 372
concerning a local authority’s
statutory powers over children’s
welfare:
“In cases
(and the present is an example)
where the court perceives that
the action sought of it is
within the sphere of discretion
of the local authority, it will
make no order and the wardship
will lapse. But in some
instances, there may be an area
of concern to which the powers
of the local authority, limited
as they are by statute, do not
extend. Sometimes the local
authority itself may invite the
supplementary assistance of the
court. Then the wardship
may be continued with a view to
action by the court. The
court’s general inherent power
is always available to fill gaps
or to supplement the powers of
the local authority: what it
will not do (except by way of
judicial review where
appropriate) is to supervise the
exercise of discretion within
the field committed by statute
to the local authority.”
Court Lapses
One of the
most settled and fundamental
principles of justice is that no
one should be prejudiced by a
default of a court. Thus in
R v.
Criminal Injuries Compensation
Board (1977)1 All ER 171 C.A
at 174 Denning M. R forcefully
said: “It is a general principle
of our law that no one should
suffer by the delay of the court
or its officers. The maxim is:
actus curiae nemini facit
injuriam” (e.s) See also
Ameyibor v. Komla (1980) GLR
821 C.A. Consequently when a
court has by itself, for
example, made an invalid order
no rule of law or constitution
of the court can prevent it from
setting aside such an order. See
Mosi
v. Bagyina (1963) 1 GLR 337
S.C. In the common law
world the non service on a party
of proceedings affecting him
gravely affects the pursuant
decision, even as a matter of
discretion, such as under the
new O.81 of the
High
Court Civil Procedure Rules, CI
47 and in most cases will
result in its being set aside.
See
Republic v. High Court, Accra;
Ex parte Allgate Co. Ltd
(Amalgamated Bank Ltd Interested
Party) (2007-2008) SC GLR
1041.
In this case
the applicant applied to the
High Court to set aside the
delivery (rather a novel idea,
instead of the judgment itself),
of the judgment on the ground
that it was not served with any
hearing notice for the same. It
has appealed from the High
Court’s dismissal of that
application and pending its
determination applied
unsuccessfully to the High Court
and Court of Appeal for an
interim injunction to restrain
the execution of the judgment.
It has sought that relief from
this court pending its appeal
from the adverse ruling of the
Court of Appeal. All along, it
is obvious that its applications
and appeals do not relate to any
executable order. That however
does not mean that it has no
interest in holding off the
enforcement of the substantive
judgment to which its processes
relate.
If a stay of
execution cannot lie other
remedies may lie. One of such
remedies can be the suspension
of the entry of judgment. In
that event the effect of the
judgment itself is temporarily
frozen and incidental processes
such as execution can’t fly not
because execution thereof is
stayed but that the life of the
judgment itself is in coma.
This measure will prevent the
eventual success of the
applicant’s appeal being
rendered nugatory.
This measure
will protect the applicant from
being injured by the prima facie
default of the trial court
having delivered its judgment
without notice to the applicant,
pending the determination of its
appeals.
We have
already, ut supra,set
out the legal basis for such an
order. But its plenitude need
not be curtailed. Apart from
powers of stay of execution the
Court of Appeal has other
interlocutory powers under r.31
of the Court of Appeal Rules
C.1.19 which could cover the
kind of order made herein. This
court can also exercise those
powers of the Court of Appeal by
reason of article 129(4) of the
1992 Constitution. Thus in
Secretary of State for Trade and
Industry v Bannister, supra,
at 996-997 Morritt L.J (Sir John
May and Glidewell L.JJ
concurring) lucidly stated thus:
“The only
case to which we were referred
in which these and related
questions have arisen is Re
Auto Electro and Powder
Finishers, Secretary of State
for Trade and Industry v Price
(5 May 1995, unreported) in
which Chadwick J gave judgment.
In that case a
disqualification order had been
made and suspended pending an
application for leave to act as
a director of a specified
company under s 17. That
company went into liquidation,
so that the application was not
pursued. Chadwick J was
concerned with an application
for a further disqualification
in relation to that company.
At the conclusion of his
judgment he made a number of
comments on the suspension of
the earlier disqualification
order. First, he doubted
whether the court had had
jurisdiction to make it.
Second, he expressed the view
that it was not an order which
should have been made, since as
the court could not alter the
date at which the
disqualification order commenced
the effect of the suspension was
to shorten the period of the
disqualification. He
suggested that an interim order
giving leave to act as a
director would have been more
appropriate.
It is not
disputed that an appeal lies to
the Court of Appeal from a
disqualification order made in
the High Court or the county
court. As with any appeal,
the Court of Appeal has power to
make any order which the court
below might have made. Thus
the period of the
disqualification may be extended
or reduced or discharged
altogether. In those
circumstances it would be
surprising if the court did not
possess the lesser power to stay
or suspend its order pending the
appeal.
It is true
that the court has power to
alleviate the effect of the
order pending appeal by giving
leave to act as a director
pending appeal as permitted by
ss 1 and 17. But although this
power may be sufficient in the
normal run of cases it is not
necessarily adequate for dealing
with the extreme case in which
the court below went badly wrong
and the very existence of the
disqualification order causes
irreparable harm to the person
apparently disqualified. In
such hard though rare cases the
power conferred by s 17 would
not be sufficient to achieve
justice.
Accordingly,
in my view this question must be
approached on the basis that
clear words are needed to
exclude the usual and necessary
power to stay or suspend an
order pending appeal.
In form the
words said to have achieved this
effect are part of a definition
of a disqualification order, for
they follow the words ‘that is
to say’. I do not accept the
submission for the Secretary of
State that the definition ends
with para (d), for the period is
necessarily part of the
definition as the court has no
power to disqualify for an
unlimited period. It would
be surprising if a definition
had the effect of excluding the
inherent jurisdiction of the
court in the way contended for.
In my view it does not. The
definition, without more, cannot
exclude the jurisdiction to stay
or suspend the order being
defined. Thus the words
‘beginning with the date of the
order’ do not preclude the
suspension of that order.
Accordingly, that effect must
be derived, if at all, from the
use of the words ‘and under
section 6 shall’. But again,
these words cannot be sufficient
to exclude the usual power to
stay an order pending appeal,
for a statutory duty to make the
order in prescribed
circumstances has never, without
more, been considered sufficient
to exclude or restrict the
powers of the Court of Appeal in
respect of the order made ”
(e.s)
We have not
unnoticed the procedural
meanderings indulged in by the
applicant, but we are here
confronted with an originating
vice of a court which in a suit
inter partes has
delivered its judgment ex
parte thereby infringing
the hallowed principles of
natural justice as to fair
notice and hearing (here even if
as to the issue of costs) and
that justice must not only be
done but must also manifestly
and undoubtedly be seen to be
done. In such compelling
situations procedure takes a
back seat see
Jonesco v. Beard (1930) A.C.
298 H.L.
It is trite
law that when a judgment is
passed and entered it becomes
the final operative judgment of
the court, see
Republic v. Court of Appeal, Ex
parte Ghana Commercial Bank
Pensioners Association (2001
– 2002)1 GLR 502 S.C.
In the
special circumstances of this
case the entry of judgment in
the High Court filed on
28/7/2009 dated the 8th
day of January 2009 is hereby
suspended pending the
determination of the applicant’s
appeal to this court from the
Ruling of the Court of Appeal.
(SGD) W. A.
ATUGUBA
JUSTICE OF THE SUPEME COURT
(SGD) J.
ANSAH
JUSTICE
OF THE SUPREME
COURT
(SGD) R.
C. OWUSU(MS.)
JUSTICE OF THE SUPREME COURT
(SGD) S.
GBADEGBE J.S.C
JUSTICE OF THE SUPREME COURT
(SGD) V.
AKOTO-BAMFO [MRS.]
JUSTICE OF THE SUPREME COURT
COUNSEL:
ANASTASIA
AKUOKO FOR APPLICANT.
A. A.
SOMUAH ASAMOAH FOR
DEFENDANT/RESPONDENT.
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