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Land - Stay
of execution - Judgment – Fraud
– Whether or not the judgment of
the High Court confirmed by the
Supreme Court was obtained by a
fraudulent document – Whether or
not the action was an abuse of
the court’s processes and
estoppel – Whether or not the
orders made by the Court of
appeal are executable - Order
20 - Supreme Court Rules CI16
HEADNOTES
On the 14th
of July 2014, the applicant
herein filed this motion for an
order ‘’to
stay
execution of the Ruling of
the court of Appeal’’ on the
grounds stated in the supporting
affidavit. The said affidavit
sets out in detail the events
that culminated into the present
application the applicant
averred that 2 suits involving
him, the respondent and one
other over the same subject
matter, the land in dispute,
were consolidated and tried by
the High Court. Judgment went in
favour of the respondent herein.
The applicant appealed against
the decision to the Court of
Appeal which reversed same. Upon
an appeal filed by the
respondent, the Supreme Court,
on 30th January 2013
pronounced on the matter, set
aside the
judgment of the Court of
Appeal and restored the decision
of the High Court. Thereafter
the applicant made a discovery
that the High Court judgment was
obtained by
fraud
and therefore commenced a fresh
action in the High Court, The
respondents strenuously opposed
the application. It was
submitted that the substantive
matter and the application
founded on it smacked of bad
faith since the suit had ended
in the Supreme Court but
nonetheless the applicant had
commenced re-litigating over the
same issues before the High
Court.
HELD
The issue is
whether
the orders made by the Court of
appeal are executable. The
order in question simply
dismissed the application for
stay. How then does one go into
execution in respect of a
dismissal or refusal order? The
ruling, the subject matter of
the appeal, merely dismissed the
application; such orders are not
executable and therefore cannot
come within the ambit of the
rule. For these reasons I am
unable to grant the order. It is
accordingly refused and same is
dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules CI16
CASES
REFERRED TO IN JUDGMENT
BAIDEN V
ANSAH 1973 1 G L R 3
MENSAH V
GHANA FOOTBALL ASSOCIATION
1989-90 1 G L R 1 and
REPUBLIC V
COURT OF APPEAL, ACCRA EXPARTE
GHANACABLE LTD (BARCLAYS BANK
LTD INTERESTED PARTY 2005-2006
SCGL R 107
In N. D. K.
FINANCIAL SERVICES LTD V YIADOM
CONSTRUCTION & ELECTRICAL WORKS
(2007-2008 1SCGLR 93,
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
AKOTO BAMFO
(MRS), J.S.C:-
COUNSEL
NKRABEA EFFAH
DARTEY ESQ.WITH HIM AUGUSTINE
ASFO- ADJEI FOR THE
PLAINTIFF/APPLICANT.
T. N WARD
BREW ESQ. WITH HIM ELIZABETH
WARD BREW FOR THE
DEFENDANT/RESPONDENT
_______________________________________________________________________________________________
RULING
_______________________________________________________________________________________________
AKOTO BAMFO
(MRS), J.S.C:-
On the 14th
of July 2014, the applicant
herein filed this motion for an
order ‘’to stay execution of the
Ruling of the court of Appeal’’
on the grounds stated in the
supporting affidavit.
The said
affidavit sets out in detail the
events that culminated into the
present application
The applicant
averred that 2 suits involving
him, the respondent and one
other over the same subject
matter, the land in dispute,
were consolidated and tried by
the High Court. Judgment went in
favour of the respondent herein.
The applicant appealed against
the decision to the Court of
Appeal which reversed same. Upon
an appeal filed by the
respondent, the Supreme Court,
on 30th January 2013
pronounced on the matter, set
aside the judgment of the Court
of Appeal and restored the
decision of the High Court.
Thereafter
the applicant made a discovery
that the High Court judgment was
obtained by fraud and therefore
commenced a fresh action in the
High Court for these declaratory
reliefs namely;
(1)
A
declaration that
the
judgment of the High Court
confirmed by the Supreme Court
was obtained through a
fraudulent document and
therefore is null and void
(2)
A
declaration that the title of
the plaintiff to the land is
good and valid as it came
genuinely from the Lands
Commission.
During the
pendency of the application for
Directions, the defendant
applied to the court for an
order dismissing the suit on
these 2 grounds:
an abuse
of the court’s processes and
estoppel.
The High
Court, on the 2nd of
December 2013 acceded to the
request and dismissed the suit.
The applicant promptly filed a
Notice of appeal dated the 2nd
of December 2013 against the
order of dismissal.
When the High
Court refused to grant an order
for stay of execution pending
the hearing of the appeal, the
applicant made a repeat
application to the Court of
Appeal .The application suffered
the same fate, for it was again
refused.
Dissatisfied
with the ruling, the applicant
lodged an appeal against the
ruling of the Court of Appeal
and subsequently filed the
instant application.
The applicant
submitted that there were
serious issues to be determined
and there was therefore the need
for staying the orders made by
the Court of Appeal. According
to him, he stood to suffer
greater hardship should the
application be refused.
The
respondents strenuously opposed
the application. It was
submitted that the substantive
matter and the application
founded on it smacked of bad
faith since the suit had ended
in the Supreme Court but
nonetheless the applicant had
commenced re-litigating over the
same issues before the High
Court.
Generally,
this court has the discretion to
grant or refuse an application
of this nature. The factors
which should weigh on the court
in the exercise of its
discretion have been settled in
a long line of cases including,
BAIDEN
V ANSAH 1973 1 G L R 3
MENSAH V
GHANA FOOTBALL ASSOCIATION
1989-90 1 G L R 1 and
REPUBLIC V
COURT OF APPEAL, ACCRA EXPARTE
GHANACABLE LTD (BARCLAYS BANK
LTD INTERESTED PARTY 2005-2006
SCGL R 107
In N. D. K.
FINANCIAL SERVICES LTD V YIADOM
CONSTRUCTION & ELECTRICAL WORKS
(2007-2008 1SCGLR 93, the
Supreme Court set out the guide
lines in these terms ‘’…the
main principle adopted by the
courts was what the position of
the appellant would be if the
judgment were to be enforced and
the appeal were successful. In
effect, the essential point in
considering such an application
was whether the applicant would
be returned to the status quo
ante should the appeal succeed.
Another determining principle
was which of the parties would
suffer greater hardship should
the application be granted or
refused.’’
Another
principle in considering
applications for stay of
execution was that if the
judgment or order sought to be
stayed was not executable, the
right of stay would not exist.’’
Thus aside from the issues
relating to hardship and the
seriousness of the issues to be
raised, the applicant has to
satisfy the court that the
orders made were executable
Order 20 of
the Supreme Court Rules CI16
is
the statutory frame work
governing interlocutory
applications in the exercise of
the Supreme Court’s appellate
jurisdiction.
It provides:
Effect of
appeal
(1)
A
civil appeal shall not operate
as a stay of execution or
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 the court refuses
to grant the application, the
applicant may repeat the
application before the court for
determination.
It is obvious
from the wording of the rule
cited above that it relates to
the stay of execution in respect
of the judgment or decision
appealed against.
In
circumstances where the judgment
or ruling appealed against only
dismissed an appeal from a lower
court, such judgment cannot be
brought within the ambit of rule
20(1) of C I16 because it is not
the judgment or decision
appealed against.
On the Notice
of Appeal filed in this court
appears the following:
‘’ Take
Notice that the appellant being
extremely aggrieved with the
ruling of the court of Appeal
delivered on 17th
March 2014 do hereby appeal to
the Supreme Court’’.
The ruling
delivered on the 17th
of March 2014 states:
‘’we have
read the motion paper and
supporting affidavit in the
opposition and we think there is
no merit in the application.
Consequently the application is
refused and same is dismissed’’
In terms of
Rule 20 of C I 16 therefore the
only appeal properly pending
before this Court is the process
filed against the ruling of the
17th of March 2014.
It is therefore only in respect
of that ruling that an
invitation could properly be
extended to this Court to
exercise its discretion provided
the order is executable.
The issue is
whether the orders made by the
Court of appeal are executable.
The order in
question simply dismissed the
application for stay. How then
does one go into execution in
respect of a dismissal or
refusal order?
The ruling,
the subject matter of the
appeal, merely dismissed the
application; such orders are not
executable and therefore cannot
come within the ambit of the
rule.
For these
reasons I am unable to grant the
order.
It is
accordingly refused and same is
dismissed.
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
COUNSEL
NKRABEA EFFAH
DARTEY ESQ.WITH HIM AUGUSTINE
ASFO- ADJEI FOR THE
PLAINTIFF/APPLICANT.
T. N WARD
BREW ESQ. WITH HIM ELIZABETH
WARD BREW FOR THE
DEFENDANT/RESPONDENT |
