IN THE SUPERIOR COURT OF
JUDICATURE
IN THE SUPREME COURT
ACCRA - A.D. 2021
MOST REV. DR. ROBERT ABOAGYE
MENSAH, MOST REV. DR. JOSEPH
OSEI BONSU, RT. REV. DANIEL
YINKAH SARFO, EDWARD OSEI BOAKYE
TRUST FUND
VRS YAW BOAKYE CIVIL MOTION
NO. J8/83/2021 21ST
JULY, 2021
CORAM
APPAU, JSC (PRESIDING) OWUSU,
JSC L-JOHNSON, JSC HONYENUGA,
JSC AMADU, JSC
Wills –
Executors – Trustees – Property
- Challenged to the validity of
a letter -
Administration of
Estate
-
Terms of settlement - Execution
of - Recovery of possession -
Property - Sub-lease - Consent
judgment
- Estoppel -
Abuse of the process -
Obligations and enforcement-
Whether
or not the
Court has the power to enforce
its own judgments and orders
without necessarily referring
same to any lower court -
Article 129(4) of the 1992
Constitution
HEADNOTES
On 17th October, 2008
the
Plaintiffs/Appellants/Respondents/
Applicants (hereinafter
referred to as “the
Applicants”), acting in
their capacity as
executors
and trustees of the Late
Edward Osei Boakye
(hereinafter referred to as “the
deceased”), issued a writ of
summons against the Defendant/
Respondent/ Appellant/
Respondent (hereinafter
referred to as “the Respondent”).
By this writ, the Applicants
challenged the validity of a
letter dated 21st
January, 2008 addressed by the
executors of the
estate
of the deceased to the
Respondent authorizing him to
enter plot numbers 6 & 7,
Airport Commercial Centre,
Accra, the subject matter of
dispute (hereinafter referred
to as “the
property”)
to complete the uncompleted
building thereon belonging to
the deceased. On 13th
November, 2009 on the
Respondent’s application, the
Applicants’ action was dismissed
by the High Court on the grounds
that it did not disclose any
cause of action against him.
Subsequently, on 23rd
June, 2011 in a judgment
delivered by the Court of
Appeal, the decision of the High
Court was reversed and judgment
entered in favour of the
Applicants on the grounds that
the letter dated 21st
January, 2008 was invalid as it
violated the provisions of
section 105(1) of the
Administration of Estates Act,
1961 (Act 63), among other
reasons. Consequently, the
Respondent was ordered to stop
all constructional works on the
property. It was further held
that the 4th
Applicant was entitled to take
possession of the property as
directed in the last Will and
Testament of the deceased.
Aggrieved by and dissatisfied
with the judgment of the Court
of Appeal, the Respondent
appealed to the Supreme Court.
During the pendency of that
appeal, the parties agreed to
compromise the judgment of the
Court of Appeal on terms they
had negotiated and agreed upon,
the Court constituted by a
single justice adopted the terms
of settlement as consent
judgment in accordance with the
wishes of the parties and the
advice of their lawyers
HELD
Therefore, based on
the enforcement mandate given to
this court by the Constitution,
coupled with the inherent duty
of the courts to enforce legal
obligations of parties before
it, failing to enforce the terms
of the consent judgment, will be
unconstitutional and an
abdication of our judicial duty.
In granting the Applicants’
leave to execute the consent
judgment by enforcing the
obligations of the Respondent
thereunderFor all the reasons
set forth, the application filed
by the Applicants for leave to
go into execution for the
enforcement of any of the
outstanding obligations of the
Respondent in this Court ought
to succeed. On the terms of the
consent judgment, the
undischarged payment obligations
of the Respondent which include
payment of the Cedi equivalent
of US$2,520,000.00 being unpaid
total rent due at the monthly
rate of US$35,000.00 from 1st
May, 2016 to 30th
April, 2022 and the recovery of
the office space agreed to be
allocated to the Applicants by
the Respondent are enforceable
by this Court directly.
Accordingly, the application for
leave to go into execution is
hereby granted. The Applicants
are at liberty to enforce any
and all the outstanding
obligations of the Respondent
under the consent judgment
aforesaid, by applying the
judgment enforcement rules of
any court as provided under
Article 129(4) of the
Constitution
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Administration of Estates Act,
1961 (Act 63)
High Court (Civil Procedure)
Rules, 2004 (C.I. 47).
CASES REFERRED TO IN JUDGMENT
Republic Vs. High Court (Fast
Track Division),
Accra (Attorney-General
Interested Party) Ex Parte
Forson [2013-2014] 1 SCGLR 690
Ex Parte Forson, In
Amidu (No. 1) Vs.,
Attorney-General & Others
[20017-2018] 1 SCLRG 477
New Patriotic Party Vs.
Electoral Commission & Anor.
[1993-1994] 1 GLR 124
In
Re Kwabeng Stool; Karikari Vs.
Ababio II (2001-2002) SCGLR 515
Attorney-General Vs. Sweater &
Socks Factory Limited
[2013-2014] 2 SCGLR 94
Amidu Vs. Attorney-General &
Water Ville [2017-2018] 2 SCLRG
615
Amidu Vs. Attorney-General &
Others (J7/05/2019) (27th
March 2019, unreported).
In
Republic Vs. High Court, Accra
(Industrial & Labour Division
Court 2); Ex-Parte Peter
Sangber-Dery [2017-2018] 1 SCLRG
552
Republic Vs. High Court, Accra,
Ex-Parte Deborah Atakorah (Billy
Cudjoe – Interested Party)
[2015-2016] 1 SCGLR 298
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
AMADU JSC:-
COUNSEL
DANIYAL ABDUL-KARIM ESQ. FOR THE
APPLICANTS.
YAW OPOKU ADJAYE ESQ. FOR THE
RESPONDENTS
AMADU JSC:-
INTRODUCTION
(1)
The key question for
determination in this
application is not entirely
novel, yet recondite because the
paucity of decisions of this
Court have not settled the
question whether or not within
the meaning and effect of
Article 129(4) of
1992
Constitution, this
Court has
the power to enforce its own
judgments and orders without
necessarily referring same to
any lower court.
BACKGROUND FACTS
(2)
On 17th October, 2008
the
Plaintiffs/Appellants/Respondents/
Applicants (hereinafter
referred to as “the
Applicants”), acting in
their capacity as executors and
trustees of the Late Edward Osei
Boakye (hereinafter referred
to as “the deceased”),
issued a writ of summons against
the Defendant/ Respondent/
Appellant/ Respondent
(hereinafter referred to as “the
Respondent”). By this writ,
the Applicants challenged the
validity of a letter dated 21st
January, 2008 addressed by the
executors of the estate of the
deceased to the Respondent
authorizing him to enter plot
numbers 6 & 7, Airport
Commercial Centre, Accra, the
subject matter of dispute
(hereinafter referred to as “the
property”) to complete the
uncompleted building thereon
belonging to the deceased.
(3)
On 13th November,
2009 on the Respondent’s
application, the Applicants’
action was dismissed by the High
Court on the grounds that it did
not disclose any cause of action
against him. Subsequently, on 23rd
June, 2011 in a judgment
delivered by the Court of
Appeal, the decision of the High
Court was reversed and judgment
entered in favour of the
Applicants on the grounds that
the letter dated 21st
January, 2008 was invalid as it
violated the provisions of
section 105(1) of the
Administration of Estates Act,
1961 (Act 63), among other
reasons. Consequently, the
Respondent was ordered to stop
all constructional works on the
property. It was further held
that the 4th
Applicant was entitled to take
possession of the property as
directed in the last Will and
Testament of the deceased.
(4)
Aggrieved by and dissatisfied
with the judgment of the Court
of Appeal, the Respondent
appealed to the Supreme Court.
During the pendency of that
appeal, the parties agreed to
compromise the judgment of the
Court of Appeal on terms they
had negotiated and agreed upon,
as shown in the terms of
settlement executed and
witnessed by their respective
lawyers. By a motion on notice
filed in the Registry of this
Court on 11th
September, 2014 the Respondent
notified this Court about the
completion and
execution
of terms of settlement by
the parties. The settlement
reached therefore effectively
ended the dispute submitted to
this Court for determination.
(5)
On 12th November,
2014 this
Court constituted by a single
justice adopted the terms of
settlement as consent judgment
in accordance with the wishes of
the parties and the advice of
their lawyers. The
obligations of the Applicants
under the consent judgment
include the waiver of their
rights under the judgment of the
Court of Appeal by forfeiting
recovery
of possession and granting
the Respondent a
sub-lease
over the
property
for a term of fifteen years from
1st May, 2015
expiring on 30th
April, 2030. In return, the
Respondent became bound to pay
the Cedi equivalent of
US$35,000.00 per month to the
Applicants as yearly rent from 1st
May, 2015. The Respondent paid
and the Applicants acknowledged
receipt of the Cedi equivalent
of US$420,000.00 as rent for one
year from 1st May,
2015 to 30th April,
2016. The Respondent also agreed
to allocate one shop or office
space on the ground floor of the
property (hereinafter
referred to as “the office
space”) to the Applicants on
completion of works.
(6)
The Applicants filed an entry of
judgment detailing the
obligations imposed by the
consent judgment. Subsequently,
on account of some default on
the part of the Respondent, an
application was filed in this
court seeking leave to go into
execution to recover accrued
rent due under the consent
judgment. The ruling delivered
by our respected brother Pwamang
JSC on 14th February,
2018 indicated the High Court as
the proper forum for seeking
leave to execute the
consent
judgment, although the said
application was, on the record,
struck out as withdrawn.
Subsequently, leave to execute
the consent judgment was sought
from the High Court, but same
was refused on 25th
October, 2019. This decision
resulted in an appeal filed on 1st
November, 2019. On 18th
January, 2019 the Applicants
also issued a writ for recovery
of possession for non-payment of
rent, among other reliefs. An
order of interim preservation
and inspection made by the High
Court on 26th June,
2019 occasioned several
interlocutory appeals and
motions in this and other
courts. Therefore, there is no
doubt that by the terms of
settlement which resulted in the
consent judgment, the parties
agreed to resolve their disputes
amicably.
(7)
By motion on notice filed on 18th
January, 2021 brought pursuant
Article 134(b) of the 1992
Constitution, the Respondent
applied to this Court to have
the order adopting the terms of
settlement set aside on the
grounds that the single justice
of this Court lacked the
jurisdiction to adopt the terms
of settlement as consent
judgment. In the Respondent’s
view, the application for the
adoption of the terms of
settlement should have been
placed before this Court
constituted by five justices.
The Applicants opposed the
application on the basis,
inter alia, that there was
no longer a dispute when the
parties executed the terms of
settlement and filed same on 11th
September, 2014 for adoption.
Therefore, the adoption by a
single justice of this Court was
made within jurisdiction as this
court did not determine the
merits of the appeal which had
been settled by the parties and
was no longer pending.
(8)
On 20th May, 2021 a
review panel of this Court
dismissed the application by the
Respondent challenging the
validity of the adoption order
made by this Court constituted
by a single justice. The review
panel found no merit in the
argument of the Respondent,
since there was no cause or
matter pending after the terms
of settlement had been filed in
the Registry of this Court.
Accordingly, the adoption of the
terms of settlement as consent
judgment in the compromised suit
before the single justice of
this Court was found to have
been made within jurisdiction.
The status of the consent
judgment was thus affirmed to be
valid and the agreed terms
therein binding on the parties.
THE INSTANT APPLICATION
(9)
The Applicants filed the instant
application on 17th
March, 2021 pursuant to Article
129(4) of the 1992 Constitution,
on the ground that the
Respondent has defaulted in his
obligations under the consent
judgment. Accordingly, the
Applicants seek leave of this
Court to enforce the outstanding
obligations of the Respondent.
Article 129(4) of the
Constitution provides:
“129(4) 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 by this
Constitution or any other law,
the Supreme Court shall have all
the powers, authority and
jurisdiction vested in any court
established by this Constitution
or any other law”.
The Applicants argued in support
of their application that, the
framers of the constitution in
empowering this Court to
directly enforce its decisions,
orders or judgments under this
provision envisioned a situation
where litigants before this
Court would prefer enforcement
in the High Court to enable
fresh round of litigation from
the High Court, through the
Court of Appeal and ultimately
back to this Court. In their
view, this is the very mischief
which is cured by the
constitutional provision that
vests us with the full
enforcement powers of any other
court.
(10)
In support of the above
arguments, Counsel for the
Applicants relied on the
decision of this Court in Republic
Vs. High Court (Fast Track
Division), Accra (Attorney-General
Interested Party) Ex Parte
Forson [2013-2014] 1 SCGLR 690
and contended that, this
court has the jurisdiction to
enforce its own decisions
applying any existing rules of
procedure or practice available
in any court by virtue of
Article 129(4) of the
Constitution. Counsel also
referred to the opinion of Benin
JSC, applying the decision in
Ex
Parte Forson, In
Amidu (No. 1) Vs.,
Attorney-General & Others
[20017-2018] 1 SCLRG 477
at page 485, expressed in
these words: “. . . It
is not the business or duty of
counsel for a judgment debtor to
tell this Court how to enforce
or direct the enforcement of its
decisions, orders and judgments.
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.”
(11)
The Applicants in their
affidavits in support of this
application, claimed that the
Respondent has been in default
of the consent judgment from 1st
May, 2016 to date and that in
respect of the Respondent’s
rent obligation, the Cedi
equivalent of US$2,520,000.00
representing accrued rent for
six years from 1st
May, 2016 to 30th
April, 2022 being the quantum of
payment that is overdue for
settlement. In the view of the
Applicants, this being a debt
under the consent judgment, it
is executable as judgment debt.
Also, the office space the
Respondent agreed to allocate to
the Applicants upon completion
of the building is an
undischarged liability which is
also executable. It was further
submitted by Counsel for the
Applicants that by the
provisions of Article 129(4) of
the Constitution, this Court is
the proper forum for enforcement
of the duties under the consent
judgment.
(12)
The Respondent in his affidavit
in opposition challenged the
competence of the application on
the premise that the earlier
application filed by the
Applicants in this Court was
refused. The Respondent further
contended that the ruling of
this Court per Pwamang JSC, as a
single justice of this Court,
was not challenged by the
Applicants by way of an
application for review as
required under Article 134(b) of
the Constitution. The Respondent
further asserted that on 28th
March, 2018, another application
filed by the Applicants in the
High Court, Commercial Division
was refused. Thereafter, an
appeal was lodged by the
Applicants and written
submissions already filed by the
parties. In the view of the
Respondent, the present
application is an abuse of the
process and amounts to forum
shopping by the Applicants.
Counsel for the Respondent also
argued that this Court exercises
concurrent jurisdiction with the
High Court when it comes to
enforcement of its decisions. So
the process already initiated by
the Applicants in the High Court
culminating in the appeal before
the Court of Appeal bind the
Applicants, rendering this
application unmeritorious.
(13)
An examination of the earlier
ruling of this Court per Pwamang
JSC sitting as a single justice,
shows that the application
before the court was not
determined on the merits as it
was withdrawn by the Applicants.
For this reason, the ruling
which followed the withdrawal of
that application could not have
been a determination of the
application on the merits.
Consequently, the said ruling
cannot bar the Applicants from
invoking our jurisdiction under
the Constitution. The law is
that, previous conduct would not
constitute an estoppel
preventing the exercise of a
constitutional right or
enjoyment of a constitutional
remedy. In
New
Patriotic Party Vs. Electoral
Commission & Anor. [1993-1994] 1
GLR 124 this Court
stated as follows: “Our
first reaction is that such
equitable defences -
acquiescence and inaction or
conduct - must not be allowed to
operate as a shield to prevent a
citizen from ventilating and
enforcing his constitutional
rights. Otherwise, sooner or
later, the good intentions of
the framers of the Constitution,
as enshrined in Article 2(1) of
the Constitution, will be
defeated.”
(14)
Further, in
In
Re Kwabeng Stool; Karikari Vs.
Ababio II (2001-2002) SCGLR 515,
this Court stated the principle
that, for an earlier decision to
constitute an estoppel, it must
have been delivered on the
merits by a court of competent
jurisdiction. Further, estoppel
was said to be wholly
inapplicable if it is meant to
cure non-compliance with
statute. At page 531 of the
report in the case under
reference, this Court held as
follows:
“Estoppel
of all kinds, however, are
subject to one general rule:
they cannot override the laws of
the land. Thus, where particular
formality is required by
statute, no estoppel will cure
the defect and jurisdiction
cannot be given to the court by
estoppel, where statute denies
it. In order that estoppel by
record may arise out of a
judgment, the court which
pronounced the judgment must
have had the jurisdiction to do
so.”
Therefore, the earlier
application having been struck
out as withdrawn, the opinion
which followed the
acknowledgment of the
withdrawal, does not have any
legal consequence and cannot
disable the Applicants from
asserting a constitutional right
or remedy not already pronounced
upon by this Court.
(15)
The Respondent’s counsel also
opposed the application before
us on the ground that it was an
abuse of
the process considering the
earlier opinion of Pwamang JSC
(supra). In
Attorney-General Vs. Sweater &
Socks Factory Limited
[2013-2014] 2 SCGLR 946
at 969, this Court opined
that the abuse of the process
principle does not apply if in
the new action, the court’s
attention is being drawn to
either a breach of the
constitution or a jurisdictional
error. In the case under
reference this Court per Wood
(CJ) stated as follows:
“More importantly, it is very
clear from the abuse of process
doctrine as discernible from all
the decisions of this court,
without a single exception, that
special circumstances, would
justify its exclusion or
applicability and allow the
litigation of issues which could
have or ought to have been
brought up for adjudication in a
previous action, but were not.
Given that estoppels of all
kinds cannot override the laws
of this land, I would include,
constitutional questions,
jurisdictional questions,
arising from alleged
constitutional or statutory
violations, such as the one
raised before us, as some of the
exceptional grounds on which, in
a fresh action involving the
same parties or privies, a
defendant cannot successfully
rely on the plea of abuse of
process in defence.”
(16)
On the basis of this opinion,
the abuse of the process
argument by Counsel for the
Respondent must fail. In
Sweater & Socks Factory Limited
case (supra), estoppel could
not have been applicable against
the Attorney-General as
Plaintiff upon raising a
constitutional issue for the
first time, despite an earlier
dispute in which it was not
raised. In the same vein, the
Applicants in this case can
bring for our consideration a
constitutional remedy they think
they are entitled to, their
previous application,
notwithstanding. The ruling of
Pwamang JSC following the
withdrawal of the application
did not provide the opportunity
to examine the merits of the
application relative to Article
129(4) of the Constitution.
Accordingly, we dismiss
Respondent’s counsel’s
contention on this point and we
hold that bringing up this
application which raises for the
first time both a constitutional
and jurisdictional argument for
our consideration, cannot
constitute an abuse of process.
(17)
In this application, the key
issue for determination is
whether this Court is vested
with the power, and authority to
enforce its own decisions using
rules of procedure of available
in any court. In
Amidu
Vs. Attorney-General & Water
Ville [2017-2018] 2 SCLRG
615, this Court
overruled an objection by the
claimant who opposed a direct
enforcement by this Court under
Article 129(4) and preferred
enforcement at the High Court in
order to enable enjoyment of its
constitutional right to appeal
if necessary. This Court held
that if the objection was
upheld, that will clearly
undermine the effectiveness and
purpose of Article 129(4) of the
Constitution. Further, the
Supreme Court will be
surrendering its jurisdiction as
conferred by the Constitution to
a lower court and that step in
itself will be unconstitutional.
This decision delivered by our
respected brother, Benin
JSC, sitting as a single justice
of this Court was, in a
subsequent review application,
affirmed in
Amidu
Vs. Attorney-General & Others
(J7/05/2019) (27th
March 2019, unreported).
In
Republic Vs. High Court, Accra
(Industrial & Labour Division
Court 2); Ex-Parte Peter
Sangber-Dery [2017-2018] 1 SCLRG
552,
that a court has no jurisdiction
to surrender or decline
jurisdiction it is vested with.
(18)
Clearly therefore, by virtue of
the provision of Article 129(4)
of the Constitution as applied
by this Court in the decisions
referred to above, this Court is
vested with the power and means
of enforcing its rulings, orders
or judgments. Thus, the opinion
proffered by Pwamang JSC
regarding the High Court being
the proper forum for the
enforcement of our orders or
decisions as expressed in the
ruling dated 14th
February, 2018 must not be
construed to mean that under the
provision of Article 129(4) of
the Constitution, this court
lacks the power in appropriate
circumstances to grant leave for
enforcement of its own judgments
and orders.
(19)
Having established the existence
of the constitutional power and
mandate of this Court to
directly enforce its decisions
or orders, the order of this
Court adopting the terms of
settlement between the
Applicants and the Respondent as
consent judgment, brings the
executable terms thereof within
the enforcement powers of this
Court. From the processes filed
by the parties, there is no
doubt that the sub-lease for a
term of fifteen years from 1st
May, 2015 was granted by the
Applicants and same was received
by the Respondent as revealed by
the sub-lease executed by the
parties. The monthly rent
payable in the first five years
of the sub-lease was fixed by
the parties at the Cedi
equivalent of US$35,000.00 from
1st May 2015. It is
not in dispute that one year
rent was paid by the Respondent
for the period 1st
May, 2015 ending 30th
April, 2016.
(20)
The Respondent has also not
denied the allegation that no
payment has been made by him
since the initial payment
resulting in outstanding rent in
the sum of US$420,000.00 per
annum from 1st May,
2016. On 1st May,
2021 rent for six years for the
period 1st May, 2016
ending 30th April,
2022 in the total sum of
US$2,520,000.00 had accrued for
payment by the Respondent to the
Applicants. Based on the payment
obligations of the Respondent in
the consent judgment, the rent
outstanding for settlement by
the Respondent thereunder became
judgment debt which is open to
execution by any of the known
enforcement procedures under the
High
Court (Civil Procedure) Rules,
2004 (C.I. 47). The
Respondent has also not
discharged his obligation under
the consent judgment to allocate
the office space to the
Applicants. This default is also
executable.
(21)
Having regard to the clear
provisions of Article 129(4) of
the Constitution, and the
unqualified and unconditional
duties of the Respondent under
the consent judgment to pay rent
and to allocate the office
space, we are obliged to grant
the Applicants leave to execute
all or any of the outstanding
obligations of the Respondent.
In granting this application, we
are also minded to prevent a
situation of re-litigation of
issues already settled by the
consent judgment. Enforcement of
specific obligations under the
consent judgment and enforcement
of the consent judgment as a
whole are not separable.
(22)
The enforcement of outstanding
obligations and enforcement
of the consent judgment as a
whole by preventing the parties
from re-opening matters already
settled thereunder are
consistent with the letter and
spirit of
Article 129(4) of the
Constitution and the public
policy discouraging endless
litigation. Anything otherwise,
may result in an untidy
situation where lower courts
will exercise the discretion
whether or not the final orders
of this Court referred for
enforcement be carried out. In
cases where issues already
settled are re-litigated with
outcomes contradicting the terms
contained in the final orders
from this Court, such a
conceivable situation will
certainly result in an absurdity
where our superior jurisdiction
properly exercised will be
subjected to the discretion of a
court of inferior jurisdiction
with the resultant possibility
of re-litigation of the same
issues through the hierarchy of
the courts.
(23)
Apart from our jurisdiction
under Article 129(4) of the
Constitution, it is also trite
that a court of law does not
have the jurisdiction to
sanction a breach of contract by
a party to the contract. One of
the inherent duties of a court
is to enforce legal obligations
assumed by parties. Granting the
Applicants leave to enforce the
consent judgment and not
permitting re-litigation of
issues resolved in the terms of
settlement leading to the
consent judgment are also in
line with this inherent duty. In
Republic Vs. High Court, Accra,
Ex-Parte Deborah Atakorah (Billy
Cudjoe – Interested Party)
[2015-2016] 1 SCGLR 298,
this court decided that terms of
settlement signed by parties
whether in or out-of-court are
binding and that a court will
lack the jurisdiction to grant a
party a dispensation to break
his own contract arbitrarily. At
page 338 of the report, Atuguba
JSC had this to say: “The
parties’ terms of settlement are
binding upon them because they
are contractual. That being so
we find it difficult to see how
when one of the terms of such
settlement is that they be made
a consent judgment, such a term
should not also have contractual
binding effect. By allowing the
interested party to overthrow
that term the trial judge in
effect granted him a
dispensation to break his own
contract arbitrarily. A court
has no such jurisdiction.”
(24)
Therefore, based on
the enforcement mandate given to
this court by the Constitution,
coupled with the inherent duty
of the courts to enforce legal
obligations of parties before
it, failing to enforce the terms
of the consent judgment, will be
unconstitutional and an
abdication of our judicial duty.
In granting the Applicants’
leave to execute the consent
judgment by enforcing the
obligations of the Respondent
thereunder, we have also taken
note of the decision of this
court in Ex-parte Atakorah
(supra) where at page
333 it was held that:
“Where, however the terms of
settlement by consent of the
parties are entered by the court
as a consent judgment then it
becomes, like any other judgment
an executable judgment of the
court if it contains executable
orders.”
(25)
For all the reasons set forth,
the application filed by the
Applicants for leave to go into
execution for the enforcement of
any of the outstanding
obligations of the Respondent in
this Court ought to succeed. On
the terms of the consent
judgment, the undischarged
payment obligations of the
Respondent which include payment
of the Cedi equivalent of
US$2,520,000.00 being unpaid
total rent due at the monthly
rate of US$35,000.00 from 1st
May, 2016 to 30th
April, 2022 and the recovery of
the office space agreed to be
allocated to the Applicants by
the Respondent are enforceable
by this Court directly.
(26)
Accordingly, the application for
leave to go into execution is
hereby granted. The Applicants
are at liberty to enforce any
and all the outstanding
obligations of the Respondent
under the consent judgment
aforesaid, by applying the
judgment enforcement rules of
any court as provided under
Article 129(4) of the
Constitution.
I.O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME
COURT)
M. OWUSU
(JUSTICE OF THE SUPREME
COURT)
A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME
COURT)
C. J. HONYENUGA
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
DANIYAL ABDUL-KARIM ESQ. FOR THE
APPLICANTS.
YAW OPOKU ADJAYE ESQ. FOR THE
RESPONDENTS. |