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Courts – Court of Appeal – Jurisdiction – Stay of proceedings – Circumstances in which Court of Appeal may stay proceedings in court below – Court of Appeal (Amendment) Rules 1975 (LI 1002) r 2.

Upon being served with the plaintiff’s writ of summons issued in the High Court, the defendant-applicant entered conditional appearance and applied to set aside the writ on the ground that the action was statute-barred. At the hearing of the application, counsel for the defendant-applicant raised a preliminary legal point. The judge, in his ruling, not only overruled the preliminary objection but proceeded to dismiss the substantive application also. The defendant-applicant appealed against the ruling and moved the court for a stay of the substantive proceeding pending the determination of the appeal. Again the trial judge turned down the application. The defendant-applicant then repeated the application for stay of proceedings in the Court of Appeal. He submitted that the Court of Appeal had jurisdiction under rule 27(1) of the Court of Appeal Rules 1962 (LI 218) as amended by rule 2 of the Court of Appeal (Amendment) Rules 1975 (LI 1002) and that the word “of” in the rule was the draftsman’s error that the court ought to amend to read “or” to enable the court to exercise its jurisdiction to grant the application for stay of proceedings. Alternatively he invoked the inherent jurisdiction of the court to stay the proceedings.

Held: The Court of Appeal did not have jurisdiction to stay proceedings. The court could exercise its inherent jurisdiction to stay the proceedings only if the applicant had appealed from the refusal of the court below to grant the application for stay of proceeding. In so far as the applicant was not appealing against such refusal but had brought a fresh application, to the Court of Appeal, the court could not invoke its inherent jurisdiction to determine the application. Takyi v Ghassoub (Ghana) Ltd [1987-88] 2 GLR 452 cited. Republic v Akim Kotoku Chieftaincy Tribunal, ex parte Adu [1987-88] 1 GLR 118, CA distinguished.

Cases referred to:

Republic v Akim Kotoku Chieftaincy Tribunal, ex parte Adu [1987-88] 1 GLR 118, CA

Takyi v Ghassoub (Ghana) Ltd [1987-88] 2 GLR 452, SC.

APPLICATION in the Court of Appeal for stay of proceedings in the High Court pending the determination of an appeal from a ruling of the High Court to the Court of Appeal.

Amarteifio for the applicant.

Matanawui for the respondent.

LUTTERODT JA. The plaintiff-respondent took out a writ of summons against the defendant-applicant for a number of reliefs. The latter, on being served with the writ and statement of claim, entered conditional appearance and applied subsequently to have both the writ and the claim set aside on the ground that the action was statute-barred. At the hearing, counsel for the applicant raised a preliminary legal point that I do not think, for our purposes, it is necessary to state. Suffice it to say that on stating his objections, the matter was adjourned for the respondent's counsel to answer the points so made and the matter was thereafter adjourned for ruling. The ruling that was delivered subsequently, almost a month after arguments had been heard on the preliminary legal points, dealt not only with the legal points that the applicant had dealt with but also the substantive application itself on the merits. It went against the applicant.

The dissatisfied applicant did not only appeal against the said ruling, but moved the court at a subsequent date to have the proceedings in the substantive matter before the High Court stayed until his appeal had been dealt with. The learned trial judge however turned down the application for stay.

In this motion, therefore, the applicant has repeated the application for stay of proceedings and implored us to exercise our discretion in its favour and to grant the order, which it failed to obtain in the court below. The applicant’s reason is that the appeal has such a very high chance of success that the interest of justice would be met by a grant rather than a refusal. In an attempt to demonstrate that its claim to victory was not a mere figment of imagination or a mere bluff, counsel argued one of the main grounds he is likely to argue when the appeal comes up for hearing. It was that the trial judge, without hearing arguments on both sides, gave the ruling complained of. In support of this argument a record of the proceedings which culminated in the said ruling was tendered. On the part of the respondent, the argument was that the said motion was fully argued on 11 February and 10 March 1992 respectively. The respondent counsel’s argument therefore is that even though this court has the discretion to stay proceedings, the appeal, contrary to the applicant’s claim, has not the slightest chance of success, and since in any case the applicant has not shown any special circumstance warranting a grant of the order sought, the same ought to be refused.

One of the hurdles the applicant’s counsel had to clear was to demonstrate that this court had jurisdiction to grant the order and so naturally, he sought to show under what rule the application was being brought. The argument was that this court derived its jurisdiction from rule 27(1) of the Court of Appeal Rules 1962 (LI 218) as amended by rule 2 of the Court of Appeal (Amendment) Rules 1975 (LI 1002). He contended that the draftsman did make a mistake by omitting the word “or” in the provision under LI 1002 as follows: “an appeal shall not operate as a stay of execution of proceedings”. He argued that if we looked at the previous rule we would come to no other conclusion than that “of” in LI 1002 was an error and should have read “or”. He urged us therefore not to wring our hands in despair and lament that we can do very little about the matter, but to be bold and correct the error by replacing “of” with “or” to enable us give a meaningful effect to the law.

His argument, as I understand him, is that when we have succeeded in effecting these changes we will find that indeed rule 27, as amended, empowers the Court of Appeal, in the exercise of its jurisdiction, not only to grant orders of stay of execution but also order stay of proceedings.

Counsel was not the first to have argued along these lines. When a similar argument was put up in the Supreme Court in the case of Takyi v Ghassoub (Ghana) Ltd [1987-88] 2 GLR 452 the court flatly refused to accede to the request and held that:

“It was a canon of construction of statutes that the legislature must be presumed to intend what they had written, and to have used the desired words and language. One could not presume a word was wrong unless its presence made a whole phrase absurd or meaningless. If the clause read with the word complained of, could be interpreted (even by stretching it) to make some sense, it was not the province of the court to alter the language of the legislature. The court should not assume a mistake in an Act of Parliament. In the instant case, it was trite knowledge that in order to put a judgment into effect certain proceedings were requisite. In land cases, for example, a writ of possession might have to be applied for, prepared and issued ... Since all those would be proceedings under the judgment, i.e. proceedings which had fallen to be taken as a result of the judgment, the provision of rule 27 as amended only meant that none of the proceedings should stop simply because an appeal had been filed. The execution, i.e. the carrying out, of those proceedings should go on or until the court ordered the contrary. Accordingly it was possible to make sense out of the rule without changing 'of' to 'or’.”

The court thus held that the proper construction to be placed on the rule complained of was that “a stay of proceedings for execution

of the judgment” had the same meaning as a stay of execution of proceedings under the judgment and in both the proceedings were proceedings after the judgment, not before the judgment. The matter in respect of which the order for stay was being sought was not a proceeding being taken by the respondent to put the ruling complained of into effect. On the contrary the applicant intended that by this order the learned trial court should suspend further hearing of the action pending before the court until the appeal was heard and determined on its merits.

In the circumstances this court cannot assume jurisdiction under rule 27 (1) of the Court of Appeal Rules, as amended by LI 1002, to grant the order sought, the simple reason being that the rule does not provide for an order for stay of proceedings. Had any such provision been made, then the appellant could have, when the application for stay of proceedings to the court below was refused, repeated the application before this court. This, the applicant would have been entitled to do by virtue of rule 28 of LI 218, which reads as follows:

“Whenever under these rules an application may be made either to the Court below or to the Court it shall be made in the first instance to the court below, but if the court below refuses the application the applicant shall be entitled to have the application determined by the Court.”

It seems to me therefore that this court has no jurisdiction under rule 28 to determine an application for stay of proceedings.

Alternatively, the applicant counsel argued that he was invoking the court’s inherent jurisdiction to grant the order. The question which had plagued my mind is whether this court is invested with any such power? It appears to me, from the case of Republic v Akim Kotoku Chieftaincy Tribunal, ex parte Adu [1987-88] 1 GLR 118 that the court could, in certain circumstances, exercise its inherent jurisdiction for the purpose. When can the court do so?

In the first place I think the court can do so only when the applicant is appealing from the ruling of the court below refusing the application for stay of proceedings. Thus in the Akim Kotoku Chieftaincy Tribunal case the appellant, unlike the present applicant, was not submitting a fresh application for stay to the Court of Appeal but appealing from the order of refusal. It was under such circumstances when the court was exercising its appellate jurisdiction that the court held that its inherent jurisdiction would be invoked.

There are other factors to be taken into account but I do not think, for our purpose, we need to go into all those. Suffice it to say that the present applicant has not met the first condition. In so far as they are not appealing from the order of refusal but have brought a fresh application, I would think this court cannot invoke its inherent jurisdiction to grant the order sought. I would thus dismiss the application.