_______________________________________________________________________
RULING
______________________________________________________________________
GBADEGBE,
JSC:
-
On
April
28,
we
allowed
the
application
for
stay
of
execution
in
the
matter
herein,
but
reserved
our
reasons,
which
we now
proceed
to provide
as
follows.
For
reasons
of
convenience,
in
these
proceedings,
the parties
will
be
referred
to simply
as
the
applicant
and
respondent.
We
have
before
us
an
application
for
stay
of
execution
of
the
judgment
of
the
Court
of
Appeal
which
dismissed
the
appeal
of
the
applicant
from
a
decision
of
the
High
Court
by
which
it
was
ordered
to
pay
to
the
respondent
by
way
of
damages
USD
16,009,920.00.
The
circumstances
under
which
the
application
herein
is
brought
before
us
may be
stated
briefly
as
follows.
The
respondent
initiated
a
claim
before
the
High
Court,
Agona
Swedru
for certain
reliefs
which
were
based
upon
the
applicant’s
alleged
unlawful
acts
of
encroachment
upon
a
piece
or parcel
of
land
belonging
to
the
respondent’s
family
and
the
erection
of
a
telecommunication
tower
or
mast
thereon.
The
action
went
to
through
a
mixed
trial
at
the
end
of
which
the
learned
trial
judge
delivered
a
judgment
that
accepted
the
respondent’s
version
of
the
matter
and
awarded
damages
against
the
applicant
in
the
amount
mentioned
in
the
preceding
paragraph
of
this
ruling.
A
repeat
application
for stay
of
execution
from
the
said
judgment
was granted
by
the
Court
of
Appeal
on
November
07, 2017
requiring
the applicant
to
pay 30%
of
the
judgment
debt.
The
applicant
complied
with
the
order
of
stay
of
execution
and
on
January
22,
2018
paid
the
cedi equivalent
in
the
sum
of
GHS21,
215,040.00
into
court,
the
said
sum
having
been
since
released
to
the
respondent.
The
Court
of
Appeal
inquired
into
the
appeal
and
dismissed
it
on
May
29,
2019.
The
applicant
then
filed
an
appeal
to
this
court
from
the
said
judgment
on
June
11,
2019
and
a
day
thereafter
filed
an
application
for
stay
of
execution
pending
appeal
to
the
Court
of
Appeal.
The
application
was
granted
on
terms,
which
applicant
deemed
a
refusal,
hence
the
repeat
application
before
us
under
Rule
20
of
the
Supreme
Court
Rules,
C I 6.
The
application
has
been
vehemently
resisted
by
the
respondent
who
contended
primarily
that
since
the
Court
of
Appeal’s
decision
was
a
judgment
of
dismissal
of
the
appeal,
it
did
not
make
any
executable
order
that
can
be enforced
by
a
writ
of
execution,
the
application
was
incompetent.
In
so
contending,
the
applicant
relied
on previous
decisions
of
this
court
that
where
the
Court
of
Appeal
merely
dismissed
an
appeal,
then
no
executory
order
is
made
that
could
be
stayed
by
an
application
for
stay
of
execution.
In
this
regard,
the
respondent
referred
to
among
others,
Ghana
Football
Association
v
Apaade Lodge
Ltd
[2009]
SCGLR
100
and
Anang
v
Sowah
[2009]
SCGLR,
111.
A
careful
examination
of
these
cases
reveals
that
although
Eboe
v
Eboe
[1961]
GLR
432
is
a
pre-1992
decision,
the
declaratory
principle
continues
to
be
applied
to
cases
which
come
before
the
Supreme
Court
subsequent
to
the
coming
into
force
of
the Constitution
dealing
with
applications
for
stay
of execution
pending
appeals.
It
needs
to
be
said
that
in
the
Apaade
case,
the
situation
before
the
Supreme
Court
was
different
from
that
now
before
us
as
in
the
instant
case,
the
judgment
of
the
court
is
directly
under
attack
by
way
of an
appeal
while
in
that
case
,the
appeal
was
from
a
collateral
attack
on
the
judgment.
As
the
said
decisions
were
pronounced
by
this
court,
they
are
in
principle
binding
upon
us
by
virtue
of
article
129(3)
of
the
Constitution
of
1992
which
provides
thus:
“The
Supreme
Court
may,
while
treating
its
own
previous
decisions
as
normally
binding,
depart
from
a
previous
decision
when
it appears
to
it right
to
do
so,
and
all
other
courts
shall
be
bound
to
follow
the
decisions
of
the Supreme
Court
on
questions
of
law.’
True,
it
is
to
say
that
there
has
been
a
collection
of
cases
of
this
court
which
preclude
the
court
from
exercising
its
jurisdiction
to
grant
stay
of
execution
in
cases
which
come
before
it
in
the
exercise
of
its
appellate
jurisdiction
where
the
decision
of
the
Court
of
Appeal
made
no
executable
orders
as
in
the
matter
before
us.
However,
in
the
case
of
NDK
Financial
Services
Ltd
v
Yiadom
Construction
and
Electrical
Works
and
Others
[2007-2008]1
SCGLR
93,
the
court
granted
an
order
of
stay
of
execution
of
a
non-executable
order.
Although
this
was
by
a
majority
decision,
it
mirrors
the
concern
of
the
learned
justices
about
the
earlier
cases
which
declined
to
grant
stay
of
execution
from
non-executable
orders.
The
words
of
Brobbey
JSC
(as
he
then
was)
put
the
matter
bluntly
when
he
observed
at
page
98
of
the
report
as
follows:
“In
considering
an
application
for
stay,
the court
should
endeavor
to do substantial
justice.
The court
should
consider
the
essence
of
the
order
made
than
the
form
in which
it
is
couched.
The
most
important
point
is
what would
happen
if
the
order
of
the
Court
of
Appeal
were
not
obeyed
by
the
party.
If
the
consequences
would
be
the
same
as
refusing
to
obey
the
High
Court
order,
and
the
High
Court
order
is
executable,
then
it
is
my
view
that
the order
in
the
repeat
application
before
the
Court
of
Appeal
is
equally
executable.”
The
decision
of
the
court
in
Merchant
Bank
Ghana
Ltd
v
Similar
Ways
Ltd
[2012]
1
SCGLR
440,
while
refusing
to
grant
an order
for stay
of execution,
granted
an order
suspending
the
entry
of
judgment
in
the decision
on appeal.
In
making
the
order,
the
court
speaking
through
Atuguba
JSC
(as
he
then
was),
bemoaned
the
effect
of a
strict
application
of
the
previous
decisions
on
orders
made
in
non-executable
decisions
of
the
Court
of
Appeal,
which
on principle
ought
to
be vacated.
Faced
with
the
troubling
consequences
of
the
prior
decisions,
the
Court
fell
upon
article
129
(4),
and
suspended
the
entry
of
judgment.
It
is
observed
that
the
said
provision
is
repeated
in
section
2
(4)
of
the
Courts
Act,
1993,
Act
459.
The
judgment
at
pages
448-
451
clearly
demonstrates
the
lapses
which
the
court’s
decisions
on
stay
of
execution
tended
to
place
in
the
path
of
the
court
in
the
discharge
of
its
core
mandate
of
doing
substantial
justice
to
parties.
This
new
trend
must
have
been
heartwarming
to
parties
who
must have
thought
that
the
Court
was
breathing
a
fresh
air
of
relief
from
its
strict
application
of
the
rule
on
the
so-called
non-executable
orders.
However
this
development
was
met
with
another
obstacle
in
the
path
of
its nurturing
when
in
the
case
of
Golden
Beach
Hotels
Ltd
v
Pack
Plus
International
Limited
[2012]
1
SCGLR
452
,
the
Court
while
acknowledging
the power
to
suspend
judgments
pending
appeal
was
of
the
view
that
to succeed
,
the application
must
be
made under
rule
20 of
CI 16 and
to succeed,
an applicant
required
to satisfy
a stricter
and
narrower
test
higher
than
that
relating
to
stay
of
execution.
The
test
in
such
a
case
is
to
demonstrate
exceptional
circumstances,
which
not
having
been satisfied
by
the applicant,
resulted
in
the dismissal
of
its application.
In
reaching
its
decision,
the
court
applied
the principle
enunciated
in
the
prior
decision
in
Standard
Chartered
Bank
(Ghana)
Ltd
v
Western
Hardwood
Ltd and
Another
[2009]
SCGLR
196.
It
is
interesting
to observe
that
although
the Court’s
attention
was
drawn
to
its
prior
decision
in
the
Similar
Ways
case
(supra),
it preferred
to
apply
the
rule
related
to
non-executable
orders
not being
the
subject
matter
of
stay
of
execution.
What
would
have
caused
the
learned
justices
so
soon
after
the
Similar
Ways decision
to
chart
a
path
that according
to
them
was
stricter
and
narrower
than
that
related
to
a
stay
of
execution
is
difficult
to
discern
but emphasises
the
inconsistency
in
the
approach
of
the
Court
to applications
for stay
of
execution
pending
appeal.
Examining
the
decisions
closely,
one
is
compelled
to
reach
the
view
that
the
learned
justices
failed
to
take advantage
of
the
powers
conferred
on
it
under
article
129(4)
to
develop
a
rule
that
will
avoid
the
hardships
brought
upon
parties
by
the strict
adherence
to
the
decision
in
a
collection
of
cases
that
deny
jurisdiction
in
the
Court.
Had
the
learned
justices
carefully
read
the
provisions
of
article
129(4),
they
would
have
noted
that
it conferred
a
wide
discretion
on
them
in
the
following
words:
“For
the
purpose
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
purpose
of
any
other
authority,
expressly
or
by
necessary
implication
given
to
the
Supreme
Court
by
the
Constitution
or
any
other
law,
the
Supreme
Court shall
have
all
the
powers,
authority
and
jurisdiction
vested
in
any
court
established
by
the
Constitution
or any
other
law.”
[Emphasis
mine]
The
task
before
us
in
these
proceedings
is
to
determine
which
of
the
varied
approaches
to
stay
of execution
pending
appeal
is
more
preferable
as
representing
what
may
be
described
as
the
justice
of
the
matter.
In
the circumstances,
drawing
inspiration
from
the
authority
conferred
on
us
in
appropriate
instances
to
depart
from a previous
decision
of
the
court,
we
propose
to
examine
the
decisions
with
a
view
to discerning
which
of
the approaches
best
serves
our
core
mandate
of
doing
substantial
justice
to
parties.
In
doing
this,
regard
would
be had
to
the
quality
of
legal
reasoning
by
which
the
various
decisions
were
expressed
and
the
source
of
the
court’s
authority
in
granting
orders
of
stay
of execution.
Such
an
examination,
it
is
proposed,
would
be done having
regard
to
the nature
of
the appellate
process.
We
commence
from
the
premise
that
stay
of
execution
was
developed
from
the
inherent
jurisdiction
of
the
court,
the
reserve
of
powers
by
which
the
court
seeks
to
do
justice
to
parties
who
appear
before
it.
The
learned
authors
of
Halsbury’s
Laws
of
England,
volume
37,
paragraph
14
at
page
23 describe
this
jurisdiction
as
follows:
“In
sum,
it
may
be
said
that
the
inherent
jurisdiction
of
the
court
is
a
virile
and
viable
doctrine,
and
has
been
defined
as
the
reserve
or
fund
of
powers,
a
residual
source
of
powers,
which
the
court
may
draw
upon
as necessary
whenever
it
is
just
or
equitable
to
do
so,
in
particular
to
ensure
the
observance
of
the
due
process
of
law
to
prevent
improper
vexation
or oppression,
to
do
justice
between
the parties
and
to
secure
a
fair
trial
between
them.”
Having
noted
the
nature
of
the
inherent
jurisdiction
as
that
which
seeks
to
do
justice
between
parties,
it
follows
that
the
development
of
the
relief
which
has
come
to
be
known
as
stay
of
execution
must
have
been
informed
by
the
said
need.
Turning
to
the
peculiar
facts
relevant
to
our
determination
of
the
application
before
us,
the
gravamen
of
the applicant’s
case
simply
is
that
having
pursuant
to
an
order
of
stay
of execution
granted
by
the Court
of
Appeal
pending
appeal,
paid
30%
of
the
judgment
debt,
being
ordered
by
the
same
Court
following
the
dismissal
of
its
appeal
to
make
a
further
payment
under
the
judgment
would
have
a
crippling
effect
on
its business.
The
respondent
denies
that
the
further
payment
ordered
under the
order
of
stay
granted
by
the
Court
of
Appeal
would
have
a
crippling
effect
on
the
applicant’s
business
and
invites
us
to
withhold
our
jurisdiction
to
grant
stay
of
execution
as
it
involved
no
executable
order.
The
respondent,
in
our view
took
a
position
that
was
firmly
anchored
on
the
binding
effect
of
the
cases
which
deny
jurisdiction
in
the
Court
in
applications
for stay
of
execution
involving
non-executable
orders.
As
earlier
indicated,
the
next
matter
for
consideration
is
the
general
nature
of
appeals.
This should
not be construed
as
disrespect
to
my esteemed
brethren
whose
knowledge
of
this
basic
principle
is not
doubted
as
I do so
out
of
a
desire
to
explain
the
nature
of
the
appellate
process,
to
the
parties
in
order
that
they
might
understand
the
reasons
for
our
decision.
In
their
nature,
appeals
seek
correction
of
decisions
made
by
lower
courts
and
where
such
an
appeal
succeeds,
the
decision
of
the
lower
court
is
reversed.
A
reversal
means
that
a
different
decision
is
substituted
in
place
of
the decision
by
the appellate
court.
On
the other
hand,
where
the
appeal
is
found
to
be unmeritorious,
it
suffers
a
dismissal
as
was
the
case
regarding
the
applicant’s
appeal
to
the
Court
of
Appeal.
While
an
appeal
is
pending
for
determination,
it
is
in
accord
with
fairness
and
in
particular,
process
integrity
that nothing
be
done
to
the
judgment
debtor
such
that before
the
decision
has
finality,
he
is
made
to
pay
up
the entirety
of
the
judgment
debt
or
a
substantial
portion
thereof
thereby
rendering
the
victory
on
appeal
nugatory.
What
this
portrays
is
that
when
a
court
is
confronted
with
an
application
for
stay
of
execution
,
its
main
focus should
be
to
delicately
balance
the
competing
rights
of
the
parties
under
the
judgment
on
appeal
such
that
a
reasonable
onlooker
apprised
of
the
facts
can
say
that
the
decision
of
the
court
on
the
application
was
a
just
one
and
not
one
that
keeps
people
wondering
whether
in
the
circumstances
there
is
any
purpose
in
exercising
the constitutional
right
to
appeal
from
a
decision
of
the
Court
of
Appeal
to
the
ultimate
court.
There
can
be
no
doubt
that
the
application
of
the
decisions
which
deny
jurisdiction
to
the
Court
may
have
had
dire
consequences
on appellants
who
having
lost
in
the
two
lower
courts
succeeded
before
the
Supreme
Court
only
to
be
faced
with
a pyrrhic
victory;
the very
mischief
that
the
relief
of stay
of execution
pending
appeal
was developed
to avoid.
A
matter
that
requires
our
interrogation
regarding
applications
for
stay
of
execution
from
non-executable
orders
is
that
whiles
in
exercising
jurisdiction
after
the
dismissal
of
an
appeal,
the
Court
of
Appeal
but
for
rule
20
(2) of
the
Supreme
Court
Rules,
would
have
been
functus
officio,
it
is
able
to
determine
applications
for
stay
of execution
and
make
orders
in
respect
of
judgments
which
relate
to
for
example,
in
this
case,
monetary
awards
of
the
High
Court
and yet
we
are
unable
to
exercise
a power
which
they
derive
from
the
lodgment
of
an
appeal
to
us.
The
time
has
come
for
us
to
embrace
a new
approach
to our
jurisdiction
in
applications
for
stay
of execution
from
appeals
dismissed
by
the
intermediate
appellate
court.
After
carefully
considering
the
matter
before
us
and
applying
myself
as
best
as
possible,
the
view
is
reached
that
in
appropriate
cases,
the ends
of
justice
is
better
served
even
in
cases
where
the
judgment
of
the Court
of
Appeal
is
said
to
be
merely
executable
by
inquiring
to
an
application
for
stay
of
execution
on
the
merits.
This
is
because
in
its
absence,
parties
would
be
left
without
a
remedy,
a
situation
which
the
learned
justice
Atuguba
JSC
(as
then
was)
bemoaned
in
the
Similar
Ways
case
before
granting
an
order
suspending
the
entry
of
judgment
in
the
matter.
Indeed,
in
the
earlier
case
of
NDK
Financial
Services
Ltd
v
Yiadom
Construction
and
Electrical
Works
and
Others
[2007-2008]
SCGLR,
93,
this
court
had
by
a
majority
decision
after
adverting
its
mind
to
the cases
which
emphasise
the
non-executable
nature
of
appeals
dismissed
by
the Court
of
Appeal,
granted
the
application
for
the purpose
of doing
justice
in
the
matter.
In
the
words
of
Brobbey
JSC
at
page
98 of
the
report
“In
considering
an
application
for
stay,
the court
should
endeavor
to do substantial
justice.
The court
should
consider
the
essence
of
the
order
more
than
the
form
in
which
it
was
couched.
The
most
important
point
is
what would
happen
if
the
order
of
the
Court
of
Appeal
were
not
obeyed
by
the
party.
If
the
consequence
would
be
the same
as
refusing
to
obey
the
High
Court
order,
and
the
High
Court order
is
executable,
then
it
is
my
view
that
the order
of
the
Court
of
Appeal
is
equally
executable.”
That
attitude,
better
serves
our
function
of
doing
justice
to
all
in
keeping
with
our oath
of
office
which,
we consider
to
be
the
guarantee
to
the
public
that
when
they
appear before
us,
our
decisions
would
embody
that
which
is
envisioned
as
the
justice
of
the
matter.
This,
must
have
informed
the
lawmaker
to
craft
an
extensive
power
to
be
utilized
by
the
Court
when
acting
within
its
jurisdiction
to
exercise
the
powers,
authority
and
jurisdiction
that are
ordinarily
not
available
to
it
provided
that
the
power
so
exercised
belongs
to
any
court
established
under
the
Constitution
or
any
other
law.
The
words
of
article
129
(4)
express
the
power
conferred
on
the court
as
follows:
“……
the
Supreme
Court
shall
have
all
the
powers,
authority
and
jurisdiction
vested
in
any
court
established
by
this
Constitution
or any other
law.”
Based
upon
the
said
article,
it
is
thought
with
respect
to
the
learned
justices
of
the
Supreme
Court
who decided
to
the
contrary
that
they
did
not
fall
upon
the
residual
power
of
the
court
expressed
in
article
129(4)
of
the Constitution,
which
acknowledges
that
the
powers
of
the
Supreme
Court
might
not
be
sufficient
in
all
matters,
so
reserved
to
it
a
power
that
would
enable
it
to
do
justice
in
appropriate
cases.
The
statements
made
by
learned
justices
of
this
Court
in
cases
such
as
NDK
Financial
Services
Ltd
v
Construction
and
Electrical
Works
and
Others
and
to
some
extent
the
Similar
Ways
case,
seem
to
us
with
the
greatest
respect
to
the
said
justices
for
whom
we
have
great
respect
to
be
shying
away
from
the
extensive
power
conferred
on
them
under
article
129(4)
to
examine
the peculiar
circumstances
of
an
application
before
them,
so
as
to do
justice
to
the
parties..
We
do not
think
that
the
approach
adopted
in
the
cases
which
emphasized
the
non-executable
nature
of
the
orders
is
the preferred
course
of
proceeding
where
parties
come
before
us
seeking
justice
more
particularly
on
account
of
the said
constitutional
provision.
The
power
of
the
Supreme
Court
as
expressed
in
the
said
article
is
quite
extensive
and
goes beyond
that
available
to
for
example,
the
Court
of
Appeal
in
article
137
(3)
by
which
it
is
limited
to exercising
only
the
powers
vested
in
the
court
from
which
the
appeal
has
been
lodged.
When
one
considers
the said
article
purposively,
it
is
clear
that
the
power
vested
in
the
Court
was
intended
to
enable
the
Court
while
acting
within
its
jurisdiction
to do
what
the
justice
of
the
matter
requires.
In
this
regard,
the
opinion
is ventured
that
had
the
learned
justices
of
the
Court
resorted
to
the said
constitutional
provision,
they
would
have
been provided
with
an alternative
reasoning
that
would
have produced
a
more
just
result.
Proceeding
further,
the
position
is
reiterated
that
there
is
of
a
collection
of
cases
dating
from
1960s
commencing
from
Eboe
v
Eboe
[1961]
GLR
432
including
Mosi
v
Bagyina
[1963]
1
GLR
337; Standard
Chartered
Bank
of West
Africa
v
Boaitey
[1971]
2
GLR
308,
Mensah
v
GFA
[1989-90]
1
GLR
1;
N.
B.
Landmark
Ltd
v Lakiani
[2001-2002]
SCGLR
318
and
lately
the
unreported
case
of
ADM
Cocoa
Ghana
Ltd
v
International
Land
Development,
Civil
Motion
Number
J8/47/2015
date
May
07,
2015,
in
which
the
Court
declined
to
inquire
into
an application
for stay
of
execution
pending
appeal
in circumstances
as confront
us
in
these
proceedings.
As
the
matter
before
us
relates
to
a
direct
attack
on
the
judgment
as
distinguished
from
a
collateral
attack
on
the
integrity
of
the
judgment,
in
approaching
the
application
herein,
it
is
important
that
this
distinguishing
feature
is borne
in
mind.
This distinguishing
feature
renders
it different
from
the
situation
that
faced
the
court
in
some
of
the
cases
to
which
reference
has
been
made
earlier
in
this
delivery,
which
were
based
on
collateral
attacks
on
the
judgment
on
which
the
applications
were
founded.
In
collateral
proceedings,
a
separate
process
is
taken
to challenge
the
integrity
of
a
judgment
such
as
an
application
is
brought
to
set
aside
a
judgment
or
in
judicial
review
applications.
Where
the
decision
in
the
case
is
that on
appeal as
is
the
case
before
us,
the
failure
of
the Court
to consider
the effect
of article
129
(4) on
its powers
seems
to be depriving
the
applicant
of
the benefit
of
the
powers
contained
in
the
said
article.
The
refusal
to
allow
appeals
from
judgments
as
was
the case
by
the
Court
of
Appeal
in
the
matter
herein
meant
that
the
execution-creditor
was
free
go
into
execution
as
it
effectually
restored
the
judgment
of
the
trial
court.
As
a
matter
of
practice,
the
successful
party
in
the
appeal before
the Court
of
Appeal
in
filing
an
entry
of
judgment
in
the
matter
would
have
to
recite
the
judgment
of
the
Court
of
Appeal
as
the
authority
for demanding
payment
of
the
judgment
debt.
Without
the
order
of
affirmation
of
the
trial
court’s
judgment
by
the
Court
of
Appeal,
the
decision
of
the
trial
court
lacked
the
essential
attribute
of
a subsisting
judgment
that
can
be enforced.
Further,
it
appears
from
the
decisions
which
withheld
jurisdiction
from
the
Court
that
a
narrow
view
of
the
proceedings
that
transpired
on
the
dismissal
of
the
appeal
when
they
failed
to
notice
that
the
usual
order
made
in such
circumstances
is
expressed,
for example
as
follows:
“Accordingly,
the
appeal
fails
and
is
dismissed.
We
proceed
to
allow
the
claims
of
the
plaintiff
as
endorsed
on
the
writ
of
summons
before
the
High
Court.”
The
interpretation
of
“judgment”
in
section
99
of
the
Courts
Act
(Act
459),
has a
huge
bearing
on
the
understanding
of
a
judgment
of
dismissal
on
an
appeal
as
it
is
defined
to
include
an
“order”
in
the
words
that
follow:
“Judgment”
means
a
judgment
or order
given
or
made
by a court
in any
civil
proceedings……
for
the payment
of
a sum
of
money
in
respect
of
compensation
or
damages
to an
injured
party.”
In
the
face
of
these
conflicting
approaches
of
the
Court
to
the
question
of
our
jurisdiction
to
grant
stay
of execution
pending
appeal,
the
question
that arises
is
whether
it
is
right
in
the
circumstances
of
this
case
to
strip
the
collection
of
cases
to
which
reference
has been
made
of
their
efficacy.
The
conferment
of
the power
of departure
in
the
Court
by
article
129
(3)
of
the
Constitution
is
a
valuable
tool
that
may
be
employed
to
free
the Court
from
the
present
state
of
inconsistency
related
to
the
grant
of
stay
of
execution
from
judgments
of dismissals
of
appeals
by
the
Court
of
Appeal.
In
this
regard,
the
power
to
depart
from
previous
decisions
may
be
seen as
a
flexible
arsenal
to be deployed
by
the
Court
to do substantial
justice
to parties.
A
resort
by
the
Supreme
Court
in
some
of
the
decisions
under
scrutiny
in
this
delivery,
shows
an
attempt
to differentiate
stay
of
execution
and
stay
of proceedings
by
virtue
of
rule
20
of CI 16
in
an
attempt
to
overcome
the overbearing
weight
of cases
which
preclude
relief
from
applicants.
In
reality,
however,
the said
provision
is
just
an
acknowledgment
of
the
inherent
power
of
the
Court
in
appropriate
instances
to
grant
stay
of
execution
or proceedings.
In
substance
when
any of
these
orders
is
granted
in
the
course
of
a
pending
appeal,
its
effect
is
to suspend
the
enforcement
of
the
rights
granted
the
judgment-creditor
under
a
judgment
of
the
Court,
which
is
on appeal.
Where
the application
seeks
to suspend
the
rights
of
the
judgment
creditor
from
enforcing
the
judgment
generally,
a
stay
of
execution
is
more
appropriate.
When,
on
the
other
hand,
the
application
is
directed
as
a specific
order
under
the
judgment
such
an order
for
accounts
or
distribution
of
a
specified
fund,
the
court
may grant
an
order
staying
the
taking
of
steps
under
the
particular
process,
a
stay
of
proceeding
related
,
for
example
to
the distribution
of a
fund
or
the
taking
of
accounts
as
ordered
under
a
judgment
,
which
is
on
appeal.
Orders
for
stay
of
execution
may
be
made
in
relation
to
processes
of
execution
such
as
fieri
facias,
writ
of
possession,
and
the
like.
It
is
noteworthy
that
Ollennu
‘s
judgment
in Eboe
v
Eboe very
clearly
emphasised
the differences
between
these
different
concepts
but
although
the
case
continues
to
be
cited
daily
on
the
principle
related
to non-executable
orders
and
stay
of
execution,
sight
is
unfortunately
lost
of
other
aspects
of
the
judgment,
which
on
the
facts
available
is
unexceptionable.
It
is
its
extension
over
the
years
without
any
examination
of
the
peculiar
circumstances
provoking
the
making
of
the
decision
that
has
tended
to
undermine
its
precedential
value.
Before
considering
article
129(3),
reference
is
made
to
the
origins
of
the
principle
of departure
from
previous
decisions.
In
a
speech
made
by
Lord
Gardiner,
the Lord Chancellor,
preceding
the
delivery
of
a
judgment
in
a pending
case
that
is
reported
at
page
77
of
[1966]
3
All
ER.,
he
observed
in
a
manner
that
is
seminal
to
the
modern
approach
to
the
doctrine
of
judicial
precedent
as
follows:
“Their
Lordships
regard
the use
of
precedent
as
an
indispensable
foundation
upon
which
to
decide
what
is
the
law
and
its application
to
individual
cases.
It
provides
at
least
some
degree
of
certainty
upon
which
individuals
can
rely
in
the
conduct
of
their
affairs
upon
which
to
decide
what
the
law
and
its
application
to
individual
cases.
It
provides
at
least
some
degree
of
certainty
upon
which
individuals
can
rely
in
the
conduct
of
their
affairs,
as well
as a basis
for orderly
development
of
legal
rules.
“Their
Lordships
nevertheless
recognise
that
too
rigid
adherence
to
precedent
may
lead
to
injustice
int
to
do
so. a
particular
case
and
also
unduly
restrict
the
proper
development
of
the
law.
They
propose,
therefore
to
modify
their
present
practice
and,
while
treating
former
decisions
of
this
House
as
normally
binding,
to
depart
from
a previous
decision
when
it
appears
right
to do so….”
[
Emphasis
mine]
was
granted
by
the Court”
Careful
consideration
of
the
words
quoted
above
reveal
that
article
129(3)
of
the
1992
Constitution
is
expressed
substantially
in
the
same
words.
It
repays
to quote
the
formulation
contained
in
the
said
article:
“The
Supreme
Court
may
while
treating
its
previous
decisions
as
normally
binding,
depart
from
a
previous
decision
when
it
appears
to
it
right
to do so…………”
[Emphasis
mine]
This
provision
was
similarly
contained
in
both
the
1969
and
1979
Constitutions
of
Ghana. Therefore,
cases
decided
previously
provide
us
with
guidance
as
we
seek
to
depart
from
the
previous
decisions.
In
the
case
of
Loga
v
Davordzi
[1966]
GLR
530,
the
Supreme
Court
had
before
the
incorporation
of
the
principle
of
departure
into
our
Rules,
specified
some
of
the
circumstances
justifying
the
exercise
of
the
power
to
depart
from
a
previous
decision
to
include
a decision
that
was
per
incuriam
or
for
any exceptional
reason
not
be
followed.
Also,
in
the
course
of
his
judgment
in
Essilfie
v
Anafo
[1992]
2
GLR
654.
Archer
CJ
(as
he
then
was),
observed
at
page
666 of
the
report
as
follows:
2005]
. “There
is no doubt
that
this
conflict
in
the
two decisions
has
caused
anxiety
and
confusion
to parties
and
their
counsel
and
must now
be
resolved
if
the
principle
of
the
binding
effect
of
judicial
precedent
is
to
have
any
relevance
at
all
in
Ghana.
The
doctrine
at
times
can
bring
about
unforeseen
consequences
and
that
is
why
the Constitution,
1969
for
the
first
time
empowered
the Supreme
Court
to depart
from
its previous
decisions
‘when
it
appears
right
so
to
do’.
This
Constitutional
power
was
repeated
in
the
Constitution,
1979.
In
Ghana,
the practice
appears
to
have
the
backing
of
statutory
law,
whereas
in
England
where
this
practice
was
first
introduced
and
copied
by
Ghana,
the
practice
is based
on
the practice
statement
by
the
House
of
Lords
and
not by an
Act of
Parliament.”
That
pronouncements
by
the Court
of
the
right
of
a
party
to
an
order
of
stay
of
execution
pending
appeal
has been
concerning
to
some
of
its
members
is
evidenced
by
Dotse
JSC
in
a
paper
presented
to
the
Ghana Bar
Association
at
its
annual
conference
in
Ho
on
September
13,
2013
entitled
“
Executable-Non-Executable
Orders-
The
Predicament
of
the
Judgment
Debtor
in
Staying
Execution
Pending
Appeal”
and
Pwamang
JSC’s
dissenting
opinion
in
Sethi
Brothers
Ghana Ltd
v Regency
International
Insurance
Ltd,
an
unreported
judgment
of
the Supreme
Court
in
Civil
Appeal
No
J8/68/2019
dated
May
20,
2019.
It
is
noteworthy
to
observe
that
Dotse
JSC’s
presentation
came
to
the
notice
of
the
learned
justices
of
the
Court
in
the
course
of
their
deliberation
in
the
unreported
decision
in
ADM
Cocoa
Ghana Limited
v
International
Loan
Development
Ltd. Both
respected
Justices
of
the
Court
deprecated
the
uncertainty
in
the
decisions
regarding
applications
for
stay
of
execution
pending
appeals.
These
voices,
which
may
be
likened
to
cries
in
the
wilderness
point
in
the
same
direction
urging
us
to
bring
about
an
end
to
the
apparent
lack
of
certainty
in
our
decisions
in
applications
for
stay
from
the
so-
called
non-executable
judgments
of
the Court
of
Appeal.
It
is
a
cry
to
us
to
assume
the
powers,
authority
and
jurisdiction
conferred
on us
by article
129(3)
of
the
Constitution
to depart
from
previous
decisions
when
we
are
satisfied
that
it
is
right
to
do
so.
Although
the
power
to
depart
is
vested
in
us,
this
should
be
done
rarely
and sparingly
when
a
decision
is shown
to be
manifestly
wrong
or
we
are
faced
with
different
approaches
of
the Court
to
the
resolution
of
a
particular
problem.
It
must
be
exercised
with
self-
restraint
and
resorted
to
only
when
the
Court
is
convinced
that
the
earlier
decision
was
incorrect
or
such
a
departure
is
necessary
to
bring
certainty
to
its
decision
in
order
to
give
teeth
to
the
doctrine
of
judicial
precedent.
Departure
from a
precedent
should
be seen
as
an
avenue
to
shaping
the
course
of
the
law
to
avoid
perpetuating
what
is
considered
an
error.
Such
is
the nature
of
restraint
that
it
took
the
House
of
Lords,
forty
years
from
the
Practice
Statement
in
1966
to
sometime
in
2006,
when,
in
Horton
v
Sadler
[2006]
UKHL
27,
it
departed
from
Walkley
v Precision
Forgings
Ltd
[1979]
1 WLR
606.
The
Canadian
case
of
R
v
Neves
[2005]
M.J
No 381 in
which
it
was observed
as
follows,
though
of persuasive
authority,
commends
itself
to
me.
“The
principle
of
stare
decisis
is
a
bedrock
of our
judicial
system.
There
is great
value
in
certainty
in
the
law,
but
there
is
also,
of
course,
an
expectation
that
the
law
as
expounded
by
judges
will
be
correct,
and
certainly
not
knowingly
incorrect,
which
would
result
when
a decision
felt
to be wrong
is
thus
not
overruled.
The
tension
when
these
basic
principles
are
in conflict
can be
profound.”
The
confusion
and
anxiety
which
confronted
the
Supreme
Court
in
Essilfie
v
Anafo
(supra)
and
indeed,
in
the Canadian
court
in
R
v
Neves
(supra)
is
no
different
from
that
which
now
confronts
us.
From
the
authorities,
such
an
occasion
presents
an
opportunity
to
depart
from
previous
decisions
that
are
considered
to
be
wrong.
The
benefit
to
be
gained
by
the
entire
legal
system
by
the
correction
of
the
error
outweighs
that
to
be
gained
by a strict
adherence
to
precedent.
Therefore,
having
demonstrated
that
the
collection
of
cases
to
which
clear
reference
has
been
made
previously
in
this
delivery
were
wrong
in
their
application
of
the
clear
provisions
of
article
129
(4)
of
the
Constitution,
it
is
right
to
say
that
the
time
has
come
for
us
to
chart
a
new
journey
by
taking
advantage
of
the
enormous
powers
conferred
on
us
by article
129(3)
of
the
Constitution
.As
the
said
decisions
did
not correctly
apply
the
power
conferred
on
the
Court
under
article
129
(4) of
the
Constitution,
they
were
delivered
per
incuriam
and
need
not
fetter
us
in
our
pursuit
of
seeking
to
bring
certainty
to
the
law
in
order
to
enhance
the application
of
the
principle
of
judicial
precedent.
That
failure
provides
us
with
a
compelling
reason
to
depart
from
the
said
decisions
in
order
to give
meaning
to
the
supremacy
of
the
Constitution
as provided
in
article
1
of
the
1992
Constitution.
Accordingly,
in
the
exercise
of
the
powers
conferred
on
us under
article
129
(3),
the
conclusion
is
reached
that
in
appropriate
cases,
the
Supreme
Court
can utilize
the power
conferred
on
any other
court
in
the
realm
to
grant
an
order
of stay
of
execution
from
non-executable
judgments
of
the
Court
of
Appeal.
Then,
there
is
the
decision
in
Similar
Ways
case
in
which
the
court
granted
an
order
of
suspension
of
the
entry
of
judgment
from a dismissed
appeal.
The
decision
of
the
Court
in
NDK
Financial
Services
Ltd v
Yiadom
Electrical
and
Construction
Works
and
Others
having
been
expressly
departed
from by
the
court
in
Standard
Chartered
Bank
(
Ghana)
Ltd
v
Western
Hardwood
Ltd
[2009]
SCGLR
,196,
the
observation
is
made
that
even
though
in
the
Similar
Ways
case
some
relief
in
the
nature
of
suspension
of
the
entry
of
judgment
was
granted
by
the
Court,
it
fell
short
of
the express
power
conferred
on
the
Court
under
article
129(4)
of
the
Constitution
to exercise
“
all
the powers
authority
and
jurisdiction
vested
in
any court
established
by
this
Constitution
or
any other
law.”
The
different
approaches
adopted
by
the
Court
in
applications
for
stay
of
execution
related
to
a
non-executable
order
were
in
their
nature
a dichotomy
designed
to
provide
a
relief
by
way
of
a
suspension
order
when
in
truth
the
matter
before
it
is one
for stay
of execution.
This,
can
be
observed
from
the
decision
of
the
Court
in
the Similar
Ways
and
the
Golden
Beach
Hotel
cases.
In
their
attempt
to
do
so,
the
law
was
unfortunately
put
on
a course
that
is not
only
wrong
in principle
but
wrong
in practice
as
well.
Wrong
in principle,
because
article
129
(4) provides
the
Court
with
ample
jurisdiction
in very
clear
language
to
assume
the
authority
and or
jurisdiction
of any other
court
in order
to do substantial
justice
to
the parties.
And
it
was
wrong
in
practice
because,
stay
of execution
is
quite
different
from
orders
of
suspension
which
in
their
nature
are
more
cognizable
in applications
for
stay
of
proceedings,
so
the
more
we
attempt
to
engage
in
the
dichotomy,
the
more
unjust
it
tends
to
be
to
the
parties
who
come
before
us
for
relief
from
the
enforcement
of
judgments
pending
appeal.
The
decisions
of
the
Court
in
the
Similar
Ways and
the
Golden
Beach
Hotel
cases,
demonstrate
quite
clearly
the
attempt
of
our
judges
to
engage
in
a
differentiation
of
the
right
to
stay
of
execution,
suspension
and
stay
of
proceedings
related
to
judgments
pending
appeal
and
the
uncertainty
associated
therewith.
It
is
therefore
no
wonder
that
with
the passage
of
time,
some
members
of
the
Court
started
showing
signs
of
change
of
minds,
something
that
is
healthy
for
the development
of
the
law.
My
Lords,
the
time has
come
for us
to embrace
the
wind
of
change
that
enables
us
to correct
errors
that
are
innate
to human
beings.
For
example,
although
the
court
considered
article
129
(4)
together
with
rule
20
of
CI
16,
in
the Similar
Ways case,
it
came
to
the conclusion
that
as
the appeal
did
not
relate
to any executable
order,
some
other
remedy
was appropriate.
The
words
of
Atuguba
JSC
in
the course
of
the
judgment
at
page
448 of
the
law
report
reveals
the
fundamental
misconception
of
the
power
vested
in
the
Court
by
virtue
of
article
129(4)
of
the
constitution
when
the
learned
justice
proceeded
thus;
“ ….
It
has
appealed
from
the
High
Court’s
dismissal
of
that
application
and
pending
its determination
applied
unsuccessfully
to
the
High
Court
and
the
Court of
Appeal
for
an
interim
injunction
to
restrain
the
execution
of
the
judgment.
It has
sought
relief
from
this
court
pending
bits
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
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”
Explaining
the
nature
of
the
order
made,
the
learned
justice
continued
at
page
448-449
as
follows:
“In
that
event,
the effect
of
the
judgment
itself
is
temporarily
frozen
and
incidental
processes
such
as
execution
cannot
fly,
not
because
execution
itself
is
stayed
but
because
the
life
of
the
judgment
itself
is
in
a
coma.
This
measure
would
prevent
the
eventual
success
of
the
applicant’s
appeal
being
rendered
nugatory.”
The
words
which
fell
from
the
lips
of
the
learned
justice
who
delivered
the
ruling
of
the
Court
actually
leaves
no
doubt
in
the
minds
of
any
discerning
reader
that
the
Court
did
not
take
advantage
of
the
enormous
power
available
to
it
under
the
Constitution.
The
Court
in
that
case
could
have
exercised
the
jurisdiction
of
the
High
Court
to
stay
execution
of
the
order
which
was
the
subject
matter
of
the
appeal.
Had
the
learned
justices
fully
appreciated
the
scope
and
extent
of
the
extensive
discretion
available
to
them
under
the
Constitution,
they
would
in
all
probability
have
made
an
order
for
stay
of
execution.
As
it
seems,
from
a
careful
reading
of
the
speech
of
Atuguba
JSC
(as he
then
was),
the
learned
justices
inadvertently
thought
that
they
were
lacking
in
authority
to grant
a
stay
of
execution.
The
learned
justices
must
have
been
overwhelmed
by
the
force
of
the
decisions
which
deny
jurisdiction
in
the
Court.
That,
however,
is
where,
with
respect
to
them,
they
fell
into
a
manifest
error;
an error
which
happily
by virtue
of
article
129(3),
we
are
enabled
to
correct
in
order
to avoid
its
repetition.
The
Court
in
the
Similar
Ways
case,
had
all
the
“powers,
authority
and
jurisdiction”
to
have
acceded
to
the
application
for
stay
of
execution.
The
order
of
suspension
granted
related
to
a
step
in
the
proceedings
which
had
been
taken
by
the
judgment
creditor
before
execution
processes
commenced,
so
it
is difficult
to appreciate
its
real
intendment.
The
order
made
in
the
said
cases
stopped
short
of
suspending
processes
founded on
the
entry
of
judgment
since
the
court
was
engaged
in
a
meaningless
differential
approach
to
two
related
but
different
concepts
of
stay
of
execution
and
stay
of
proceedings.
Procedurally,
orders
that
are
suspended
are
those
which
take
effect
immediately
without
any
further
order
such
as
injunctions
and
orders
of
imprisonment
and
committal
for contempt.
For
a
precedent,
see
Atkins
Court
Forms,
Volume
19,
2nd
edition
Form
No
216
at page
322.
Every
other
order
which
requires
taking
steps
to
be
executed
with
the aid
of
writs
of
execution
are
those
in
respect
of
which
stay
of execution
are
concerned.
In
the
light
of
the
above,
parting
company
with
my
brethren
is
a
more
just
ways
of proceeding
in
the
matter
herein.
Therefore,
it
is
declared
that
the
Supreme
Court
by
virtue
of
article
129(4)
has
the
jurisdiction
to determine
applications
for
stay
of
execution
from
judgments
of
dismissal
by
the
Court
of
Appeal.
This,
it
is hoped
will
remove
all
the
uncertainty
about stay
of
execution
and
suspension
of
judgments
related
to
such
applications
and enhance
public
confidence
in our ability
to do
substantial
justice
to parties.
In
arriving
at
this
conclusion,
regard
has
been had
to
the
prayer
of
the
applicant
by
which
it
seeks
an
order
of
suspension
of
the
judgment
entered
against
it
in
the
Court
of
Appeal.
The
uncertainty
in
the
decisions
of
the
Court
as
appears
from
some
of
the
decisions
referred
to
in
the
course
of
this
delivery
may
have
contributed
to
the
difficulty
that practitioners
face
in
setting
out
the
relief
that
they
seek
before
us.
After
all,
if
the
Supreme
Court’s
decisions
are
declaratory
of
the
law
and
binding
on
all
other
courts,
how
can
a
practitioner
who
seeks
the
exercise
of
a discretion
in
his
favor
frame
his
case
in
a
manner
contrary
to
the
effect
of
the
binding
decisions
of
the
Court.
As
the
substantive
relief
sought
from
the
application
is
an
order
of
stay
of
execution,
and
the
parties
contested
the application
on
that
basis,
no
injustice
is done
in considering
the application
as
one
for
stay
of
execution.
Having
disposed
of
the
question
touching
and
concerning
our
jurisdiction,
the
next
matter
to
be
considered
is
the
merits
of
the
application.
Having
given
careful
thought
to
the
application,
it
is
noted
from paragraph
15
of
the
affidavit
in
support
that
the
applicant
raises
the
likelihood
of
the
payment
which
was
ordered
by
the
Court
of
Appeal
having
a
crippling
effect
on
its
finances should
the
said
order
be
complied
with.
As
previously
observed,
the
applicant
has
made
a
payment
amounting
to
30% of
the
judgment
debt
on
the
orders
of
the Court of
Appeal
before
its
determination
of
the
appeal
and
yet a
further
payment
was
ordered
to
be
made
after
the determination
of
the
Appeal
pending
the
determination
of
an
appeal
to
this
Court.
It
is
observed
without
any hesitation
that
the
order
to
make
payments
beyond
the 30%
allowed,
was
in
substance,
a
denial
of
stay
of execution
pending
appeal.
Accordingly,
the
application
is
properly
before
us.
In
Linotype-Hell
Finances
Ltd
v
Baker
[1992]
4
All
ER
887,
which
is
of
persuasive
authority,
Stoughton
LJ
observed
as
follows:
“In
the
Supreme
Court Practice
1991
vol1,
para
59/13/1
there
are
a
large
number
of nineteenth
century
cases
cited
as
to
when
there
should
be
a stay
of
execution
pending
appeal.
At a
brief
glance
they
do not
seem
to
me
to reflect
the
current
practice
in
this
court
and
I
would
have
thought
it
was
much
to
be
desired
that
all
the
nineteenth
century
cases
should
be
put
on
one
side
and
that
one,
the
Court
should
concentrate
on
the
current
practice.
It seems
to
me
that,
if
a
defendant
can
say
that
without
a
stay
of
execution
he
will
be
ruined
and
that
he
has
an appeal
which
has
some
prospect
of
success,
that
is
a
legitimate
ground
for
granting
a
stay
of
execution.
The passage
quoted
in
the
Supreme
Court Practice
from
Atkins
v
Great
Western
Rly
Co
(1886)
2
TLR
400,
‘As
a general
rule
the
only
ground
for
a
stay
of
execution
is
an
affidavit
showing
that
if
the
damages
and
costs
were
paid
there
is
no
reasonable
probability
of
getting
them
back
if
the
appeal
succeeds’
seems
to
be
far
too
stringent
a
test
today….”
The
likelihood
of
the
applicant’s
business
crippling
if
it
were
to
pay
further
sums
as ordered
by
the
Court
of
Appeal
also
brings
the
matter
within
exceptional
circumstances,
which
by
the
decision
of
this
Court
in
Joseph
v
Jebeille
[
1963]1
GLR
387,
is
a
good
ground
for
the
grant
of
stay
of
execution
not
to
mention
the
dire
circumstances
in
which
we
now
are
and
its
effect
on businesses.
Then
there
are
also
the
matters,
which
have
according
to
the applicant
come
to
its
knowledge
since
the
entry
of
judgment
against
it
related
to
the
ownership
of
the
land
being
vested
in
the
State
contrary
to
the
admission
made by
the
2nd
defendant;
this
is
a
matter
covered
by
Order
43
rule
11
of
the
High
Court
(Civil
Procedure),
Rules
CI
47,
which
provides:
“Without
prejudice
to
the
generality
of
Order
45
rule
15,
a party
against
whom
a
judgment
has
been
given
may
apply
to
the
Court
for
a
stay
of
execution
of
the
judgment
or
order
or
other
relief
on
the
ground
of
matters
which
have
occurred
since
the
date
of
the
judgment
or
order,
and
the
Court
may
by
order
grant
relief,
on
such
terms
as
it
thinks
just.”
If
the
facts
deposed
to
in
the
affidavit
of
the
Executive
Secretary
of
the
Lands Commission,
in
support
of
the application
for
stay
of
execution
are
proved
to be
true
then
their
existence
at
the
trial
would
have
prevented
the
judgment
being
given
in
favor
of
the
plaintiff.
In
London
Permanent
Benefit
Building
Society
v
de
Baer,
[1968]
1
All
ER
372, Plowman
J
observed
of
Order
45
rule
11 of
the
English
Rules
on
which
our
order
43
rule
11
is based
as
follows:
“The
power
conferred
by
that
rule
to
grant relief
is
a
power
to
do
so,
and
I
quote
“on
the
ground
of
matters
which
have
occurred
since
the
date
of
the
judgment”.
It
is
in
my
judgment
implicit
in
the
rule
that
the
matters
referred
to
are
matters
which
would
or
might
have
prevented
the
order
being
made
or
would
or might
have
led
to a stay
of
execution
if
they had already
occurred
at
the
date
of
the order.”
For
these
reasons,
the
application
for
stay
of
execution
succeeds.
In particular,
an
order
of
stay
of
execution
is granted
in
respect
of
the
judgment
of
the
High
Court,
Agona
Swedru
dated
May
10,
2017.
N.
S.
GBADEGBE
(JUSTICE
OF
THE
SUPREME
COURT)
YEBOAH,
CJ:-
I agree
with
the
conclusion
and
reasoning
of
my brother
Gbadegbe,
JSC.
ANIN
YEBOAH
(CHIEF
JUSTICE)
DOTSE,
JSC:-
This
is
to
indicate
that,
having
read
the
two
opinions
in
this
case,
it
is Gbadegbe’s
lead
ruling
that
l
concur
in
respect.
V.
J. M.
DOTSE
(JUSTICE
OF
THE
SUPREME
COURT)
APPAU,
JSC:-
I agree
with
the
conclusion
and
reasoning
of
my brother
Gbadegbe,
JSC.
Y.
APPAU
(JUSTICE
OF
THE
SUPREME
COURT)
MARFUL-SAU,
JSC:-
I agree
with
the
conclusion
and
reasoning
of
my brother
Gbadegbe,
JSC.
S.
K.
MARFUL-SAU
(JUSTICE
OF
THE
SUPREME
COURT)
PROF.
KOTEY,
JSC:-
I agree
with
the
conclusion
and
reasoning
of
my brother
Gbadegbe,
JSC.
PROF.
N.
A.
KOTEY
(JUSTICE
OF
THE
SUPREME
COURT)
CONCURRING
OPINION
PWAMANG,
JSC:-
My
Lords,
the
application
before
us
has
reignited
a
legal
controversy
that
has
troubled
this
court
and
the
profession
in
general
for
some
time
now.
The
issue
is,
by
what
authority
can
the
court
entertain
an
application
for stay
of
execution
of a
judgment
that
is not
directly
on
appeal
before
the court.
A
related
question
is whether
the court
can
stay
execution
of a non-executable
judgment
of
the Court
of
Appeal.
The
background
facts
of
this
case
evoked
in all
of
us a
sense
of
uneasiness
and
on
28th
April,
2019
we
rightly
concluded
that
the
applicant
is entitled
to
interim
relief
pending
the
determination
of
its
appeal
lodged
in
this
court.
Nonetheless,
as
we
give
the
reasons
for our
ruling
it
is
important
to
clarify
the
grounds
for our decision
as
the
arguments
of
the
respondent
questioning
the
jurisdiction
to
entertain
the
application
are
based
on
some
decisions
of
this
court
that are
anchored
on
basic
and
fundamental
principles
of
our
system
of
law.
Because
of
the
persistent
recurrence
of
the question
I
have
decided
to
make
some
remarks
of
my
own
while
I
concur
with
my
worthy
brother,
Gbadegbe,
JSC
on
the conclusion
in
the
brilliant
opinion
he
just
read.
In
the
application
before
us
the
applicant
prays
us
“for
an
order
of
stay
of
execution
of
the
judgment
of
the
Court
of
Appeal,
Cape
Coast,
constituted
by Lawrence
Lazagla
Mensah,
JA,
Angelina
Mornah
Domakyaareh
(Mrs),
JA
and
Patience
Mills-Tetteh,
J
dated
29th
May,
2019,
pending
the
determination
of
the
Appellant’s
appeal
against
the
judgment
upon
the grounds
contained
in
the
accompanying
affidavit
and
for such
further
order(s)
as
the
honourable
court
may
deem
fit
”.
In
the
affidavit
of
the
respondent
in
answer he deposed
that
he
had a
preliminary
objection
to
the
application
which
he
contends
is
legally
incompetent.
Consequently,
at
the
first hearing
of
the
application
we
called
on counsel
to
state
his
objection.
Kwasi
Afrifa
Esq,
lead
counsel
for
the
respondent
said
that
the
judgment
of
the Court
of
Appeal
that
has
been
appealed
against
by
the
applicant
did
not
make
any
executable
order
so
by
the
decisions
of
this
court
an
application
for
stay
of
execution
of
the
judgment
of
the
Court
of
Appeal
does
not
arise.
The concluding
part
of
the
judgment
appealed
against
states
as
follows;
“As
the analysis
of
the entirety
of
this
judgment
shows,
all
the
grounds
of
appeal
have
failed.
Accordingly,
the
appeal
is
dismissed
in
its
entirety
save
for
the
enhancement
of
the
costs
awarded
by
the
trial
court
from
Ghc20,000.00
to
Ghc40,000.00
in
favour
of
the
respondent
as
against
the
appellant.
Subject
to
the
variation
of
the
costs
as
indicated,
the
judgment
of
the
High
Court,
Agona
Swedru
dated
10th
May
2017
is
hereby
affirmed.”
In
view
of
the
fundamental
nature
of
the
issue
raised
we
requested
the
parties
to
file
further
arguments
which
they
have
done
and
the
Chief
Justice
enhanced
the
bench
for
the
hearing.
In
its
written
submissions
the
applicant
invites
the
court
to
consider
making
an
order
staying
execution
of
the
judgment
of
the
trial
court
if
it
is
not
minded
to
stay
execution
of
the
judgment
of
the
Court
of
Appeal
which
it
admits
is
non-executable.
Ace
Anan
Ankomah
Esq,
lead
counsel
for
the
applicant
submits
that
the
court
has
authority
under
Article
129(4)
of
the
Constitution,
1992
to
exercise
the
powers
of
either
the
High
Court
or
the
Court
of
Appeal
to
stay
execution
of
the
judgment
of
the
High
Court.
In
fact,
a
reading
of
the affidavit
in
support
of
the
application
leaves
no
doubt
that
the
applicant
is
asking
us
to
stay
execution
of
the
judgment
of
the
trial
court
dated
10th
May,
2017
which
is not
directly
on
appeal
here.
That
judgment
ordered
the
applicant
to
pay
to
the
respondent
USD16,009,920.00
as damages
for
trespass
to
land
about
8.242
acres
in
extent
lying
and
being
at
Gomoa
Afransi
in
the
Central
Region
adjudged
to
belong
to
the
respondent.
This
application
and
similar
ones
made
on
previous
occasions
in
the
court
praying
for
stay
of
execution
is
stated
to
be
pursuant
to
Rule
20
(2)
of
the
Supreme
Court
Rules,
1996
(C.I.16
).
This
provision
just
as
the
enactments
in
pari
materia
that
preceded
it
has
been
understood
to
be
the
source
of
the
jurisdiction
of
the
Supreme
Court
to entertain
applications
for stay
of
execution
pending
appeal.
It
is
as
follows;
"20.
Effect
of
appeal
(1)
A
civil
appeal
shall
not
operate
as
a
stay
of
execution
or
of
proceedings
under
the
judgment
or
decision
appealed
against
except
in so
far as
the
Court
or
the
Court
below
may otherwise
order.
(2)
Subject
to
these
Rules,
and
to any
other
enactment
governing
appeals,
an application
for
stay
of
execution
or
of
proceedings
shall
first
be
made
to
the Court
below
and
if
that
court
refuses
to
grant
the
application,
the applicant
may
repeat
the application
before
the
Court
for
determination."
The
rule
has been
interpreted
as
limiting
the
court’s
jurisdiction
to
entertain
applications
for
stay
of
execution
pending
appeal
to only
applications
in
respect
of
the
judgment
that
is
on
appeal
before
the
court.
Accordingly,
where
that
judgment
is
not
executable,
the
decisions
maintain,
the
jurisdiction
does
not
arise.
The
cases
that
have so held
include
N.B.
Landmark
Ltd
v
Lakiani
[2001-2002]
SCGLR
318;
GFA
v
Apaade
Lodge
Ltd
[2009]
SCGLR
100;
Takyi
v
Ghassoub
(Ghana)
Ltd
[1987-88]
2
GLR
452,
and
Anang
Sowah
v
Adams
[2009]
111.
The
applicant
on
the
other
hand
argues
that
the
court
can
grant
its
application
and
for
authority
referred
to us
the
cases
of
NDK
Finance
Ltd
v
Yiadom
[2007-2008]
SCGLR
93;
Standard
Chartered
Bank
Ghana
Ltd
v
Western
Hardwood
Ltd
&
Anor
[2009]
SCGLR
196;
Merchant
Bank
(Ghana)
Ltd
v Similar
Ways
Ltd
[2012]
1
SCGLR
440
and
Golden
Beach
Hotels
(Gh)
Ltd
v
Packplus
International
Ltd
Ltd
[2012]
1
SCGLR
452.
My
Lords,
there
appears
to
be
some
confusion
as
to
whether
Rule
20
of
C.I.
16
is
capable
of
a
wide
interpretation
that
would
clothe
the
Supreme
Court
with
jurisdiction
to
either
stay
execution
of
a
judgment
of
dismissal
by
the Court
of
Appeal
or
of
the
judgment
of
the
trial
court
that
is
not
on
appeal
before
the
court.
In
its
written
arguments
the
applicant
submitted
that
the
court
should
be
able
to
give
the
rule
a
wider
interpretation
and
entertain
its application.
However,
the
applicant
appears
to
be
under
the
impression
that
this
court
has
on
a
previous
occasion
suspended
the
enforcement
of
a
non-executable
judgment.
It
states
as
follows
at
pages
11-12
of
its
written
submissions;
“My
Lords
it
was
only
a
matter
of
time
that
this
Honourable
Court
began
to
make
inroads
into
the
opaque
and
impassable
rule
on
‘non-executable
judgments’.
The
first
was
that
when
the
trial
court
has
made a
fundamental
mistake,
the
Supreme
Court
would
not
allow
the
judgment
to
be
executed
even
though
the actual
judgment
appealed
against
before
the
Supreme
Court
is non-executable.
However
in
appropriate
cases
this
Honourable
Court
has
suspended
the
enforcement
of
such
orders
pending
the
determination
of an
appeal.
My
Lords
in
Merchant
Bank
(Ghana)
Ltd
v
Similar
Ways Ltd…
this
Honourable
Court
suspended
the
enforcement
of a
non-executable
order
because
the
trial
court
had
breached
the
rules
of natural
justice
and that
‘in
such compelling
situation
procedure
must
take
a
back
seat.’”
It
is
not correct
that
in
the
Similar
Ways
case
this
court
suspended
the
enforcement
of
a
non-executable
judgment.
This
is
the
final
order
of
the court
at
page
451
of
the
report;
“in
the
special
circumstances
of
this
case,
the
entry
of
judgment
in
the
High
Court
filed
on
28th
July,
2009
in respect
of
the
judgment
delivered
on 8th
January,2009,
is
hereby
suspended
pending
the
determination
of
the applicants
appeal
to
this
court
from
the
ruling
of
the Court
of
Appeal.”
The
judgment
of
8th
January
2009
was delivered
by
the
High
Court
wherein
the
applicant
was
ordered
to
pay
$30,800.30
with
interests
and
costs.
In
that
case
the
Court
of
appeal
decision
on
appeal
to
the
Supreme
Court
did
not
contain
an
executable
order
and
no purpose
would
have
been
served
by
its
suspension
as
there
was nothing
to
enforce.
My
Lords,
the
practice
whereby
the
court
now
entertains
applications
such
as
the
one
before
us
has
evolved
over
time
and
it
is
important
to
clarify
the
jurisprudence
so
that our decision
in
this
case
will
be
understood
in
the proper
context.
I
have
given
serious
consideration
to
the
invitation
by
the
applicant
to
give
Rule
20 of
C.I.16
a
wide
interpretation
but I have
unhesitantly
come
to
the
conclusion
that
the
rule
is not capable
of a
wide
interpretation
and
that
the
cases
that
interpreted
it
to
have
limited
application
were
not
wrongly
decided.
I
shall
review
the
cases
to
justify
my
position.
In
the
case
of
N.B.
Landmark
v
Lakiani,
default
judgment
was given
by
the
Circuit
Court,
Accra
against
the
defendant
for
reliefs
including
recovery
of
possession
on
2nd
November,
1998.
The
defendant
filed
a
motion
to
set
aside
the
default
judgment
but
the
Circuit
Court
dismissed
the
motion.
The
defendant
then
appealed
against
the
refusal
to
set
aside
and
applied
to
the
Circuit
Court
for
stay
of
execution
which
was
dismissed
and he
repeated
it
before
the Court
of
Appeal
which
granted
it.
On appeal
to
the Supreme
Court
the
court
was
at
pains
to
point
out
that
since
the
judgment
in
respect
of
which
the
application
for
stay
was
made
was
a
judgment
of
refusal
and
thus
not capable
of being
executed
the
Court
of
Appeal
could
not
in
law
stay
execution
of
it.
Acquah
JSC,
(as
he
then
was)
with
whom
the
rest
of
the
court
agreed,
said
at
page
196
that;
“Now,
it
is
trite
learning
that
an
application
for
stay
of execution,
presupposes
that
the
order
or
decision
in respect
of
which
the
stay
is
sought
is
capable
of
being
executed
by
any
of
the
known
processes
of
execution.
If
the
order
or
decision
is
incapable
of
being
executed,
an application
for
stay
of
execution
cannot
be
applied
in respect
of
it.
Thus
in
Eboe
v
Eboe
[1961]
GLR
432
Ollennu
J
(as
he
then
was)
held
that
a
declaration
that
the
defendant
was
a
trustee
did
not
require
any
person
to
do
anything
or
abstain
from
doing
anything
and
there
was
no
method
of
executing
it.
Consequently,
there
could
be
no application
to stay
the
said
order.”
He
then
disposed
of
the case
as
follows;
“In
the
instant
case
the
judgment
in
respect
of
which
the
application
for
stay
was
sought,
was
one
refusing
to set
aside
a
default
judgment.
How
does
one
go
into
execution
in
respect
of
such
a
refusal
order?
The
appeal
was
not
in
respect
of
the
main
judgment
of 2
November
1998
which
ordered
the
defendant
to
give
up
vacant
possession
of
the
premises.
A
stay
of
execution
can
of
course
be
applied
to
stay
the
substantive
judgment
if
an appeal
had been
filed
against
it
and
the relevant
application
for
stay
is
filed.”(emphasis
supplied).
Acquah,
JSC
did
not
doubt
that
it
is
possible
to
obtain
an
order
for
stay
of
execution
of
the
substantive
judgment
but
his
view
was
that
the
case
at
bar
did
not
target
that
judgment
but
rather
the
judgment
of
refusal.
The
statement
that
if
the
order
or
decision
is
incapable
of
being
executed,
an
application
for
stay
of
execution
cannot
be
applied
for
in
respect
of
it
is
an
immutable
statement
of
settled
law.
In
fact,
it
is
an
oxymoron
in
legal
terminology
to
talk
of
staying
execution
of
a
non-executable
decision.
There
is
nothing
opaque
about
the
principle
on
non-
executable
judgments
that
applies
in
all
common
law
jurisdictions
and
was described
by
Date-Bah,
JSC
in
the
Golden
Beach
Resorts
case
as
part
of
our
received
learning.
A
declaratory
judgment
or
a
judgment
of
refusal
to
set
aside
a
judgment
as
was
the
case
in
Lakiani
is
not
capable
of
being
stayed
by
an
order
for
stay
of
execution.
As
a
result
I
am
of
the
opinion
that,
on
the
facts
the Lakiani
case
was
rightly
decided
just
as
Eboe
v Eboe
was
also
rightly
decided
by
Ollennu
J
(as
he
then
was).
Such
were
the
facts
in
the case
of
Morkor
v
Kumah
[1998-
99]
SCGLR
620
and
this
court
came
to
the
same
conclusion.
However,
it
ought
to
be
pointed
out
that
the
fact
that
there
can
be
no
stay
of
execution
of
a
declaratory
judgment
does
not
mean
that
there
can
be no
interim
relief
in
respect
of
it
on
a
justifiable
ground
such as
pending
the determination
of
an appeal.
There
is
jurisdiction
to suspend
the
effect
of
a
declaratory
judgment
as
was
done
in
Republic
v
General
Legal
Council
Disciplinary
Committee;
Ex
parte
Aboagye
da
Costa
[1989-90]
2
GLR
164.
See
also
the
Canadian
Supreme
Court
case
of
Labatt
Breweries
v
A-G
[1980]
1
SCR
494.
Statute
may also
provide
for
the
suspension
of
the
effect
of
declaratory
judgments.
See,
infra,
Or
43
R11
of
the
High
Court
(Civil
Procedure)
Rules,
2004
(C.I.47)
which
has
a
wider
breadth
than
is
noticed
by
a
casual
reading
of
the provision.
See
also
Rule
24.2(a)(3)
of
the
Texas
Rules
of
Appellate
Procedure.
But
the
point
I
make
about suspending
a declaratory
judgment
does
not
apply
in
respect
of
judgments
of dismissal
or
refusal
as
we
have
in
this
case
and
as
was
dealt
with
in
Lakiani
and
Morkor
v
Kumah.
Whereas
a
declaratory
judgment
determines
legal
rights
and
status
of
the
parties
to
a
case
without
more,
a
judgment
of
dismissal
or
refusal
does
not
decide
anything
by
way
of
rights
or
status.
It
was
in
Takyi
v
Ghassoub
(Ghana)
that
the
Supreme
Court
made
a
definitive
pronouncement
on
the
ambit
of
the
rule
on
stay
of
execution
by
appellate
courts.
The
court
interpreted
Rule
27
of
the
Court
of
Appeal
Rules,
1962
(L.I 218)
which
is
in
pari
materia
with
Rule
20 of
C.I.
16.
The
court
held
as
follows;
“The
Court of Appeal's
assumption
of
jurisdiction
could
not be
justified
under
rule
27
of
the
Court
of Appeal Rules,
1962
(L.I
218)
As
amended
by
rule
2
of
the
Court
of
Appeal
(Amendment)
Rules
1975
(L.I
1002)
because
even
if
it
(sic)
was
changed
to
or,
the
proceedings
contemplated
were
proceedings
under
the
judgment
or decision
appealed
from,
not
prior
to, or
leading
to,
the
judgment.
And
since
the
question
of
damages
and
costs
had
not
been
dealt
with
by
the
High
Court,
they
would
not
be
proceedings
under
a
judgment
but
rather
proceedings
pending
before
judgment.”(emphasis
supplied).
This
was
the
interpretation
of
Rule
20
the
court
adopted
in
Anang Sowah
v
Adams
and
GFA
v
Apaade
Lodge.
The
facts
of
GFA
v
Apaade
Lodge
were
similar
to
the
Lakiani
case
but
here
the
application
targeted
the executable
judgment
but
which
was
not
on
appeal
before
the
Supreme.
Default
judgment
was
entered
by
the
High
Court,
against
GFA
on
4th
April,
2006
to
pay
certain
sums
to
the
plaintiff.
GFA
applied
to
set
aside
the
default
judgment
but
the
application
was
refused
by
the
High
Court.
It
appealed
against
the
refusal
to
the
Court
of
Appeal
but
lost
there
and
further
appealed
to
the
Supreme
Court.
It
then
brought
an
application
for
stay
of execution
of
the
judgment
of
4th
April,
2006.
The
Supreme
Court
held
that
since
there
was
no
appeal
against
the
judgment
of
4th
April,
2006
there
could
be
no
stay
of
it
pending
appeal.
Sophia
Adinyira,
JSC,
who
authored
the unanimous
opinion
of
the
court
said
at
page
109
as
follows;
“The
only
appeal properly
before
this
court
is
the
one
against
the
judgment
of
the
court
of appeal dated
22nd
May,
2008.
Consequently,
it
is
only
in
respect
of
that
judgment
that
has
been
appealed
against
that
this
this
court
can
be
invited
to
exercise
its
discretion
to
grant
stay
if
there
is
an
executable
order
and
the
application
is with
merits.
The
applicant
did
not
appeal against
the
default
judgment;
the
Court
of Appeal
did
not
therefore
make
any
executable
orders
in
respect
of
the
said
judgment;
wherein
lies
our
jurisdiction
to
entertain
an
application
for
stay of
execution
of a
judgment
which
is not
on appeal?”(emphasis
supplied).
Counsel
for
the
applicant
in
GFA
v
Apaade
lodge
obviously
did
not
argue
the
application
outside
Rule
20
so
the
court’s
hands
were
tied.
In
cases
that
came
after
effort
was
made
to
locate
jurisdiction
to
entertain
applications
for
stay
of
execution
of
the
executable
judgment
of
the
trial
court
outside
of
rule
20
and
I
shall
refer
to
them
later
in
the delivery.
In
the
interpretation
of
statutes,
it
is
often
said
that
where
the
courts
have
on
a
previous
occasion
given
a
particular
interpretation
to
words
used
in
an
enactment,
then
when
the
law
maker
uses
those
same
words
in
subsequent
legislation,
the
law
maker
is
deemed
to
use
the
words
in
the
sense
interpreted
by
the
court.
See
Republic
v Tekperbiawe
Divisional
Council;
Ex
parte
Korle
II
[1972]
1
GLR
199.
A
related
presumption
in
interpretation
of
statutes
is
that
the
law
maker
is
deemed
to
know
the
state
of
the
existing
law
at
the
time
a
law
is
made.
When
these
presumptions
are
applied
to Rule
20
the
implication
is
that
since
as
at
1996
when C.I.16
was
made,
the
rule
maker
knew
the
limited breadth
of
the
rule
from
the decision
of
the
Supreme
Court
in
Takyi v
Ghassoub
decided
in
1988
then
the
rule
maker
ought
to
be
understood
to
have
repeated
the
provision
with
that
limited
scope
in
mind.
Concomitantly,
when
the
rule
directs
that
applications
for
stay
of
execution
should
first be
made
to
the
Court
of
Appeal
and upon
a
refusal
to
the
court,
it
was not
contemplated
that
where
the
Court
of
Appeal
gave
a
judgment
of
dismissal
an
application
could
be
made
to
stay
its
execution
since
the
rule
maker
is deemed
to
know
that
there
can
be
no
stay
of
execution
of
such
judgment
as
was
held
in
Eboe
v
Eboe
and
affirmed
by
the
Supreme
Court
in
Mensah
v
GFA
[1989-90]
1
GLR
1.
Therefore,
in
my
opinion
the
procedure
under
Rule
20 arises
only
where
the
Court
of
Appeal
gives
an
executable
judgment
and
there
is
an appeal
against
it
to
the
Supreme
Court.
If
the
judgment
of
the
Court
of
appeal
is
not
executable,
Rule
20
cannot
found
jurisdiction
to entertain
an application
for
stay
of
execution.
The
majority
decision
in
the
case
of
Mensah
v
GFA,
is
often
referred
to
as
deviating
from
the
principle
on
non-
executable
judgments
but
such
would
be
a
misreading
of
the
decision.
In
that
case
the
Supreme
Court
considered
an application
for stay
of
execution
pending
appeal
against
a
judgment
that
granted
a
perpetual
injunction.
The
respondent
relying
on
Eboe
v
Eboe
argued
that
an
injunction
was
not
capable
of
execution
by
the
known
methods
of
execution
set
out
in
the
High
Court
(Civil
Procedure)
Rules,
1954
(LN
140A).
The
majority
explained
that execution
is
the
putting
in
motion
the
machinery
of
the
law
to
enforce
a
judgment
of a
court
and
that
since
the applicant
could
be proceeded
against
for
contempt
of
court,
that
would
amount
to
execution.
Amua-Sakyi,
JSC
who
authored
the
majority
judgment
said
as
follows
at
page
5 of
the
report;
“We
have
found
it
necessary
to
deal
with
the
question
whether
the
judgment
was
one
which
was
executable
because
we agree
that
if
it
was
not
then
no order
staying
execution
could
properly
have
been
made
and
the appeal
must
succeed.
Having
come
to
the
conclusion
that
it
was
executable
we
now
have
to
consider
the
merits
of
the appeal
against
the decision
of
the Court
of
Appeal
granting
a stay.’
It
is
reported
in
the
Headnote
as
follows;
“1)
where
a
person
had
been
granted
an
order
of
perpetual
injunction
in
protection
of
his
rights,
it
would
be
executable
in
the
sense
that
any
breach
of
the
order
would
render
the
person
liable
to
attachment
for
contempt.”
Taylor
JSC
in
his
dissent
limited
execution
to
the
writs
of
execution
stated
in
LN
140A.
In
my
view,
the
majority
was
right
since
contempt
proceedings
are
a
form
of
execution
and
in
our
current
High
Court
(Civil
Procedure)
Rules,
2004
(C.I.47),
it
is
so expressly
stated
at
Or 43
R5(1)(cc).
The
effect
of
the
decisions
on
Rule
20
is
that
in
order
for
the
procedure
under
Rule
20
of
C.I.16
to
become
applicable
there
are
two
key
requirements
to
be
satisfied;
1)
the
judgment
that
the
applicant
seeks
to
have
stayed
ought
to
have
been
appealed
against
to
the
Supreme
Court,
and
2) The
judgment
must
also
be
executable.
The
challenge
that
applicants
in
the category
of
the
one before
us
face
is
that,
their
applications
satisfies
only
one of
the
requirements;
it
has
appealed
against
the
judgment
it
has
prayed
to
have
stayed,
i.e.
the
Court
of
Appeal
judgment,
but
then
the
judgment
is
not
executable
(Lakiani
and
Mokor
cases).
Looked
at
in
another
way,
if
the applicant
prays
for
the
Supreme
Court
to
stay
the
judgment
of
the
High
Court,
(as
in
GFA
v
Apaade
Lodge)
then
it
would
satisfy
the
requirement
of executability
but
then
that
judgment
is not on
appeal before
the
Supreme
Court.
That
brings
us
to
the
question
posed
in
GFA
v
Apaade
Lodge;
where
does
the
court
get
the
jurisdiction
from
to entertain
an application
to grant
relief
in such
a
case?
My
Lords,
it
is
critical
to
pause
and
consider
what
is
meant
by
the
term
‘jurisdiction’
in
the
question.
It
is
obvious
that
the
court
was
questioning
its
authority
to
determine
an
application
for
stay
of execution
of
the
judgment
of
the
trial
court
that
was
not
immediately
on
appeal
before
it.
Amua-
Sakyi,
JSC
in
Ex
parte
Laryea
[1989-90]
2
GLR
99
at page 101;
defined
jurisdiction
as
“By
jurisdiction
is
meant,
of
course,
the power
or
authority
of
the
court
or
judge
to
give
a
decision
on
the
issue
before
it”.
Similarly,
Lord
Reid
in
Anisminic
v Foreign
Compensation
Commission
[1969]
1
All
ER
208
explained
that
in
its
original
sense
jurisdiction
of
a
tribunal
as
“(the)
tribunal
being
entitled
to
enter
into
the
enquiry
in
question”.
In
that
regard,
when
we
refer
to
Rule
20
as
giving
jurisdiction
of
the
court
to
make
orders
for
stay
of
execution
we
are
referring
to
“procedural
jurisdiction”
only
and
not
the
substantive
authority
by
which
the
court
can
make
the
order.
In
my
understanding,
it
is
not
Rule
20
that
confers
subject
matter
jurisdiction
on
the
Supreme
Court
to
hear
and
determine
applications
for
stay
of
execution.
However,
that
does not
mean
that
the
court
does not
have
jurisdiction
over
such
applications.
In
Takyi
v
Ghassoub
and
the
cases
that
followed
it
the
court
only
said
the
jurisdiction
cannot
be
justified
under
the
rule.
But
before
I
discuss
the
jurisdiction
of
the court
outside
Rule 20,
let
me
say
this
at
the
risk of
being
repetitive.
I am
of
the
firm
view
that
it
would
be
contrary
to
established
basic
and
fundamental
principles
of
law
for
the Supreme
Court
to
purport
to
stay
execution
of
the
judgment
of
the
Court
of
Appeal
that does not contain
an executable
order.
It
will
be
a
vacuous
order
and
pointless
for
the
court
to
make
such
order.
Take
for
instance
the situation
that
the
court
were
to
make
such
an
order
and
the
judgment
creditor
goes
ahead
to
execute
the
judgment
of
the
High
Court
which
has
not
been
stayed,
can
she
be
proceeded
against
for
contempt
of
court?
That
is
why
in
the
Similar
Ways
case
the
order
of
suspension
was
made
in
respect
of
the
judgment
of
the
High
Court
which
was executable
and
also
when
I decided
in
dissent
to
grant
an
application
for stay
of execution
in
the
case
of Sethi
Brothers
v
Reliance
Insurance
Co;
Civil
Motion
J8/68/2019
dated
30
May,
2019
(Unreported)
I
made
the
order
staying
execution
of
the
judgment
of
the
High
Court
and
not
the decision
of
the
Court
of
Appeal
as same
was
not
executable.
Therefore,
I
am
of
the
view
that
the
appropriate
and
only
legally
beneficial
analysis
in
this
case
is
to
ascertain
the
authority
of
the
Supreme
Court
to
hear
the
application
as seeking
for a
stay
of
the
judgment
of
the
High
Court.
As
I
indicated
supra,
Rule
20
covers
only
a
limited
range
of
interlocutory
matters
that
may
arise
after
the Court of
Appeal
has
determined
an
appeal.
Once
the
court
has
determined
the
appeal
it
becomes
functus
officio
and
its
jurisdiction
in
respect
of
the
res
of
the
case
lapses.
See
Agyiliha
v.
Tayee
[1975]
1
G.L.R.
433,
C.A..
Of
course,
after
judgment
the Court
of
Appeal,
like
any
superior
court,
retains
residual
jurisdiction
in
matters
of execution
and
contempt
in
respect
of
its
judgment.
See
Francois,
JSC’s
judgment
in
Republiv
v.
High
Court,
Ho; Ex parte
Evangelical
Presbyterian
Church
of
Ghana
&
Anor
[1991]
1
GLR
323
at
335.
But
where
the
interlocutory
matter
arises
not on
the
strength
of
the
Court
of
Appeal
judgment
but on
account of
the
judgment
of
the
trial
court,
then
the
Court
of
Appeal
may
be constrained
after
becoming
functus.
It
seems
to
me
that
it
is
this
residual
jurisdiction
that
is
the
source
of
the
Court
of
Appeal’s
authority
to
hear applications
for
stay
of execution
of
its
judgment
referred
to
in
Rule
20.
As
was
observed
by
the
venerable
Atuguba,
JSC
in
the
Similar
Ways
case,
apart
from
the
remedy
of
stay
of
execution,
there
is
no
provision
that
authorizes
the
Court
of
Appeal
to
make
any
other
interlocutory
orders
after
its
judgment
on
the
substantive
appeal.
Meanwhile,
by
reason
of Rule
16
of
C.I.16
the
procedural
jurisdiction
of
the
Supreme
Court
to
entertain
interlocutory
applications
in
respect
of
the
subject
matter
of
the
case
on
appeal
other
than
for
stay
of
execution
does
not
arise
until
the
appeal
is
entered.
Rule
16
is
as
follows;
“16.
(1)
After
the
transmission
of
the
record
of appeal
from
the
court
below
to
the
Court,
the
Court
shall
be seized
of
the
appeal
and
any
application
relating
to
the
appeal
shall
subsequently
be
made
to
the
Court.
(2)
Any
application
filed
in
the
court
below
after
the
transmission
of
the
record
of
appeal
shall
be
transmitted
to
the Court.”
It
appears
to
me
that
when
the
appeal
has
been
entered
and
the
Supreme
Court
is
seized
of
the
appeal
there
can hardly
be
any
doubt
of
its
jurisdiction
to
make
any
interlocutory
order
it considers
just
that
will
ensure
that
its
final
judgment
in
the
appeal
does
not
become
nugatory.
Authority
for
this
is
the
case
of
Wilson
v
Church
No.2
(1879)
12
Ch
D
454
which
was
referred
to
by
the
court
in
Joseph
v
Jebeile
[1963]
GLR
387.
This
power
of
the court
must
necessarily
extend
to
preventing
execution
of
the
judgment
of
the
High
Court
if
the
execution
will
destroy
the
res
of
the
case
and
produce
the
result
of
rendering
a
successful
appeal nugatory.
Additionally,
if
at
this
stage
the
court
decides
to
fall
on
its
powers
under
Article
129(4)
to
exercise
the
authority
of
the
trial
court
to stay
its
judgment,
I doubt
that
a question
of
jurisdiction
will
be posed.
The
lacuna,
if
it
can
be
so
described,
is
before
the
appeal
has
been
entered.
If
in
the
interregnum
any
interlocutory
matter
that
falls
outside
Rule
20,
including
an
application
for
stay
of
execution
not
covered
under
the
rule
as
we have
in
this
case
should
arise,
the
issue
has
all
along
been
can
the
Supreme
Court,
a
court
of
last
appeal,
say
it has
no
jurisdiction
to
hear
the
interlocutory
application?
For
me
the
issue
is
not
staying
execution
of
a
judgment
of
dismissal
of
the
Court
of
Appeal
that
is
on
appeal
to
the
Supreme
Court
as
the
authorities
are
clear
on
non-
executable
judgments.
In
the
Similar
Ways
case
the
appeal
had
not
yet
been
entered
and
Rule
20
of C.I.
16 could
not
be
called
upon because
the
decision
of
the
Court
of
Appeal
that
had
been
appealed
against
was
not
executable.
The
court
resorted
to
its
undoubted
powers
at
common
law
incorporated
by
Article
126(2)
of
the
Constitution,
the
reserved
power
of
the
court
under
Rule
5
of C.I.16
and
Article
129(4)
of
the
Constitution
to
found
jurisdiction
to
entertain
and grant
relief
in
respect
of
the
executable
judgment
of
the
trial court.
However,
the
court
restrained
itself
from
making
an
order
for
stay
of execution
of
the
judgment
of
the
High
Court
and
instead
suspended
the
entry
of
judgment
filed
in
respect
of
it.
In
the
case
of
Olympio
v
Giovanni
Anthoneli
&
Ano
[2017-2018]
1 SCLRG,
Appau,
JSC
said
that suspension
of
judgment
has
the
same
effect
as staying
execution
of
it.
If
the
court
considered
that
it
could
appropriate
the
powers
of
the
High
Court
and
the
Court
of
Appeal
by
virtue
of
Article
129(4),
then one
would
have
expected
it
to
make
a
straight
order
for
stay
of
execution
since
both
courts
have
that
power
and
the
judgment
of
the
High
Court
that
was
suspended
was executable?
At
the
further
hearing
of
this
application
we
invited
the
comment
counsel
for
the
respondent
as
to
whether
we do not
have
power
under
Article
129(4)
of
the
Constitution
to entertain
the
application
for stay
of
execution
but he
did
not
proffer
an
opinion,
meaning
he
left
it
to
the
court.
Counsel
for
the
applicant
however
in
his
written
submissions
drew
the
court’s
attention
to
the
fact
that
Article
129(4)
has
a
threshold
for
its
application
and
if
we are
to
resort
to
it
we
still
have
to scale
over
that
hurdle.
It
provides;
“(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.” (emphasis
supplied).
The
threshold
for
the
invocation
of
Article
129(4)
is
therefore
that before
the
court
can
draw
on
the
powers
of any
other
court
on
account
of
the
article,
it
must
first
have
jurisdiction
or
statutory
authority
over
the
matter
it
is dealing
with.
Counsel
referred
to
us
Republic
v
Duffour;
Ex
parte
Asare
[2007-2008]
SCGLR
394
where
at
403
Atuguba
JSC
said
as
follows;
"....article
129(4)
is
auxilliary
to
the
Supreme
Court,
but
it
is
not
the
fons
et origo
of
jurisdiction
over
a
matter
over
which
it
has no
jurisdiction."
In
the
case
of
GFA
V
Apaade
Lodge
Ltd
[2009]
SCGLR
100,
Sophia
Adinyira,
JSC,
in
an erudite
judgment
reviewed
this
court's
jurisprudence
on
article
129(4)
and
concluded
as
follows
at
page
110;
"We
wish
to
emphasise
that
article
129(4)
of
the
1992
Constitution
cannot
be
used
as
a
springboard
to
clothe
us with
jurisdiction
where
there
is no appeal
against
the
judgment
sought
to be
stayed."
See also
Kpegah,
JSC
in
Edusei
(No
2) v
Attorney-General
[1998
99]
SCGLR
753.
It
is
often
said
that
appeal
is
a
creature
of
statute
and
appellate
jurisdiction
is
to
be
exercised
strictly
in
accordance
with
the
statute
regulating
appeals.
If
authority
for
this
were
required
I
will
refer
to
Nye
v
Nye
[[1967]
GLR
76,
CA
(Full
Bench),
and Sandem-Nab
v
Asangalisa
[1996-97]
SCGLR
302.
However,
it
is
also
settled
law
that
jurisdiction
is
conferred
by
the
Constitution
or
substantive
enactments
and
that
rules
of
court
contained
in subsidiary
legislation
only
regulate
the
exercise
of
existing
jurisdiction
but
do
not
confer
jurisdiction
and
so cannot
take
it away
or
diminish
or
enlarge
it.
In
the
case
of
Republic
v
High
Court,
Koforidua;
Ex
parte
Ansah
Otu
[2009]
SCGLR
141,
the
celebrated
Anin
Yeboah,
JSC
(as
he
then
was)
made
the
following
profound
statement
of
the
law
at
page
152 of
the
report;
“The
jurisdiction
to
grant
the
interlocutory
injunction
is
exercisable
by
both
the
Superior
Court
of Judicature
and
the
Lower
Courts
in
Ghana.
Both
the
1992
Constitution
and
the
Courts
Act,
1993
(Act
459),
have
conferred
jurisdiction
on
the
courts
to
grant
this
equitable
relief.
It
is
relief
which
the
common
law
courts
have always
granted,
in
the
exercise
of
their
discretion,
when
the
circumstances
appear
to
be
just
and
convenient.
It
is, however,
granted
to
protect
rights
and
in
some
cases
prevent
any
injury
or damage
in
accordance
with
laid
down
legal
principles
which
have developed
as a
result
of
case
law
over
the
years.
In
my
opinion,
the
rules
of court
merely
regulate
the
procedure
for
applying
for
judicial
reliefs.
It
does
not confer
the
jurisdiction
on
the
courts
to
grant
injunctions.
In
my
view,
Order
25,
r
9(1)
and
(2)
of
the
High
Court
(Civil
Procedure)
Rules,
2004
(CI 47),
which
learned
counsel
for
the
applicants
has
forcefully
pressed
on
this
court,
is
not
meant
to
impose
any
serious
fetters
on
the
discretion
of
the
court
in
granting
an
interlocutory
injunction,
it
being
a
discretionary
relief.
I
think
the
circumstances
of
the
case
must
be
looked
at
in
considering
the grant
or
refusal
of
the
application
for
interlocutory
injunction.
Even
though
rule
9(1)
and
(2)
of
Order 25 requires
of
an
applicant
to give
an undertaking,
it
is procedural
and should
not
be
interpreted
to
limit
the
jurisdiction
imposed
on
the
courts
by
the
1992
Constitution
and
the
Courts
Act,
1993
(Act
459).”
Also,
in
the
case
of
Beverly
Levy
v
Ken
Sales
& Marketing
Ltd
[2008]
UKPC
6,
Lord
Scott
of
Foscote,
delivering
the opinion
of
the
Board
of
the Privy
Council
stated
at
para
19 as
follows;
“The
Civil
Procedure
Rules
2002,
which
came
into
effect
on
1
January
2003,
contain
Rules
relating
to
the
making
of
charging
orders
but
while
Rules
can
regulate
the
exercise
of
an
existing
jurisdiction
they
cannot
by
themselves
confer
jurisdiction.”
Therefore,
in
my
view,
it
is
the
appellate
jurisdiction
of
the
Supreme
Court
conferred
by
Article
131
of
the Constitution
and
Section
4(1)
of
the
Courts
Act,
1993,
(Act
459)
that
is
the
source
of
authority
for
the
court
to hear
and
determine
the
substantive
appeal
as
well
as
any
interlocutory
matter
related
to
it.
This
jurisdiction
is activated
on
the
filing
of
the
notice
of
appeal
and
it
gives
the
court
authority
over
the
res
or
subject
matter
of
the case
which
in
this
case
is
the
damages
claimed
by
the
respondent.
We
may say
that
it
is
the
judgment
of
the
Court
of
Appeal
that
is
on
appeal
before
the
Supreme
Court
but
the
substantive
jurisdiction
of
the
court
is
actually
over
the
res
of
the
case.
C.I.
16
only
directs,
regulates
and
organizes
the
appellate
jurisdiction
of
the
court
but does
not
confer
it.
Where
directions
for
the
exercise
of
the
jurisdiction
conferred
by
the
Constitution
and
the Courts
Act
have
been
given
in C.I.16,
the
court
has
to comply
with
them
but
directions
in subsidiary
legislation
for
the exercise
of
jurisdiction
conferred
by substantive
enactment
cannot
take
away
that
jurisdiction
or
limit
it.
Accordingly,
to
answer
the
question
posed
in
GFA
v
Apaade
Lodge,
my
view
is
that
the
jurisdiction
of
the Supreme
Court
to
make
interim
orders
touching
and
concerning
the
subject
matter
of
an
appeal
including
upon
an
application
for stay
of execution
that
falls
outside
Rule
20
derives
from
the
general
appellate
jurisdiction
of
the
Supreme
Court
conferred
by
the Constitution
and
the Courts
Act.
Rule
20
of C.I.16
is
not
the
source
of
the court’s
jurisdiction,
it
only
regulates
its
exercise
in
terms
of
procedure.
It
must
be
noted
that
the
rule
does
not even
purport
to
confer
jurisdiction
on
the
court
to
make
orders
for
stay
of
execution.
When
the
language
of
Rule
20
is
compared
and
contrasted
with
that
of
Or43
Rule
11 or
Or
45
rule
15
of
C.I.
47
it
becomes
plain
that
Rule
20
only
allocates
the
exercise
of
the
jurisdiction
to
stay
execution
but
does
not
confer
it.
Rule
11
of
Or
43
of
C.I.
47
is
as
follows;
“Without
prejudice
to
Order
45
rule
15,
a
party
against
whom
a
judgment
or
order
has
been
given
or
made
may apply
to
the
Court
for
a
stay
of
execution
of
the
judgment
or
order
or
other
relief
on
the
ground
of
matters
which
have
occurred
since
the
date
of
the
judgment
or
order,
and
the Court
may
by order
grant
the
relief,
on such
terms
as
it
thinks
just.”
(emphasis
supplied).
But
Rule
20(1)
&
(2) say;
“(1)
A
civil
appeal
shall
not
operate
as
a
stay
of execution
or
of proceedings
under
the
judgment
or
decision
appealed
against
except
in
so
far as
the
Court
or
the
Court
below
may
otherwise
order.(emphasis
supplied)
(2)
Subject
to
these
Rules,
and
to any
other
enactment
governing
appeals,
an application
for
stay
of
execution
or
of
proceedings
shall
first
be
made
to
the Court
below
and
if
that
court
refuses
to
grant
the
application,
the applicant
may
repeat
the application
before
the
Court
for
determination."
From
its
language,
Rule
20
takes
the
authority
of
the
court
to
make
orders
for
stay
of
execution
before
the
appeal
is
entered
as
already
existing,
and
rightly
so
because
Article
131
and
section
4 of
the
Courts
Act
have
conferred
it
on
the
court.
So,
in
respect
of
applications
for
stay
of
execution
that
come
under
the
purview
of
Rule
20,
before
the
appeal
is
entered,
the
rule
defers
the
exercise
of
the
undoubted
jurisdiction
by
the
court
until
the
Court
of
Appeal
has
heard
the
application
and
refused
it.
When
the
appeal
is
entered,
the
court’s
jurisdiction
in
respect
of all
interlocutory
applications
including
even applications
for
stay
of
execution
that
ordinarily
would
have
come
under
Rule
20
(executable
decisions
of
the
Court
of
Appeal)
is
immediate
and
the
deferral
does
not
apply.
Consequently,
as C.I.16
has
not
deferred
the
exercise
by
the
court
of
its
jurisdiction
in
respect
of
other
interlocutory
matters
outside
Rule
20,
the
only
conclusion
is
that
before
the
appeal
is
entered
an application
for
such
interlocutory
remedy
falls
immediately
to
the
court
to
be
heard
and determined
directly
as
it
would
do
where
the
appeal
has
been
entered.
The
fact
that
C.I.16
does
not
prescribe
any
special
procedure
for
applications
that
fall
outside
Rule
20 does
not
limit
the
jurisdiction
of
the
court
to
entertain
such
applications
and
determine
them.
It
was
thought
that
the
Supreme
Court
can
draw
on Rule
5
of
C.I.16
to
prescribe
a
procedure
by
which
interlocutory
applications
including
for
stay
of
execution
that
fall
outside
Rule
20
may
be
made after
the
filing of
the appeal
but
before
it
is
entered.
The
Rule
states;
“5.
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.”
(emphasis
supplied).
It
is
noteworthy
that
the
power
given
by
the
rule
to
the
court
is
only
to
prescribe
procedure
for
the
exercise
of
an existing
jurisdiction
which
to
my
mind
does
not
include
power
to
confer
authority
that
does
not
already
exist.
It
is
like
inherent
jurisdiction
which
complements
existing
jurisdiction
and
does
not
confer
substantive
jurisdiction.
In
that
wise
I very
much
doubt
if
there
is any
need
for a
special
procedure
or even
if
it
is
feasible.
We
have
no power
to
confer
jurisdiction
on
the
Court
of
Appeal
to
hear
such
applications
as
a
court
of
first
instance
unless
such
jurisdiction
already
exists
in
the
Court
of
Appeal.
I
say
I
do
not
see
the
need
for
a
special
procedure
because
when
the
court
assumes
the powers
of
either
the
Court
of
Appeal
or
the
trial
court
to
entertain
an
application
outside
Rule
20,
then
the
procedure
in
the
court
whose powers
are
being
exercised
would
be
applicable.
For example,
Or
25 R
1(2)
of
C.I.47
provides;
“2)
A party
to
a cause or matter
may
apply
for
the grant
of
an
injunction
before,
or
after
the
trial
of
the
cause or
matter,
whether
or
not
a
claim
for
the
injunction
was
included
in
the
party's
writ,
counterclaim
or
third
party
notice.”
So,
if
before
the
appeal
is
entered
in
the
Supreme
Court
there
is
a
need
for
the
preservation
of
the
subject
matter
of
the
case,
a
party
may
apply
to
the
Supreme
Court
to
exercise
the
powers
of
the
High
Court
under
this
rule.
What
I
am
saying
is
that
in
such
a
case
the
procedure
in
Or
25
would
become
applicable
and
there
is
no
need
for
the
court
to
prescribe
a
new
practice.
It
appears
to
me
to
be
in
order
for
applications
such
as
we
have
in
this
case
to
be
stated
to
be pursuant
to
Articles
131
or
Section
4
of
Act
459
and 129(4)
of
the
Constitution
then
followed
by
the
rule
in
the
court
below
whose
powers
are
to
be exercised,
e.g
Or 43
R
11.
I
will
therefore
state
the
position
as
follows;
where
the
Court
of
Appeal
has
only
dismissed
an
appeal
against
an executable
judgment
on
appeal
to
it
without
more,
except an
order
for
costs,
if
the
judgment
of
the
Court
of
Appeal
is
appealed
against
to
the
Supreme
Court,
the
court
can,
in
appropriate
cases,
entertain
an
application
for stay
of
execution
of
the
first
judgment.
This
simplifies
the
procedure
instead
of
the
manner
in
which
the
applications
are
currently
drafted
by
applicants
as
being
for suspension
of
the
judgment
or
injunction
against
its execution.
Because
this
is
a
special
remedy,
and
in
order
to
prevent
its
abuse
by
litigants
whose
only
motive
would
be
to
frustrate
judgment
creditors,
I
will
echo
the
caution
of
Date-Bah,
JSC
in
the
Golden
Beach
Resorts
case
to keep
the
window
very
small.
In
that
regard
I
will
urge
Your
Lordships
to
accept
it
as
the
law
that
this
special
procedural
jurisdiction
shall
only
be exercised
in
favour
of an applicant
upon satisfying
the court
that
there
is a basic
and
fundamental
error
committed
by
either
the
trial
court
or
the
Court
of
Appeal or
for
some
other
compelling
reason.
In
the case
of Wilson
v
Church
No.2
(supra)
the court
actually
stated
at
page
459
that:
“Where
an
unsuccessful
party
is
exercising
an
unrestricted
right
of
appeal,
it
is
the
duty
of
the
court
in
ordinary
cases
to
make
such
orders
for
staying
proceedings
under
a
judgment
appealed
from,
as
would
prevent
the
appeal,
if
successful,
from
being
nugatory.
But
the
court
will
not
interfere
if
the
appeal
appears
not
to
be
bona
fide,
or
there are other
sufficient
exceptional
circumstances.(emphasis
supplied)”
