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Libel -
Defamation – Award of damages -
Retraction of the publication -
Practice and Procedure - Stay of
execution of the orders of the
Court - Whether or not the court
erred in granting an application
that was manifestly incompetent
- Whether or not the Court of
Appeal erred in interfering with
the exercise of discretion by
the trial High Court judge in
the absence of any indication
that the trial judge’s
discretion was not judicially
exercised - Whether or not the
ruling was against the weight of
the affidavit evidence - Whether
or not the defendant neither
established that the appeal had
a reasonable prospect of success
nor that irreparable harm will
be occasioned by the defendant
by a refusal of the application.
HEADNOTES
In the action
out of which this appeal arises,
the plaintiff obtained judgment
against the defendant for
defamation and was awarded
damages as well as an order
directed at the defendant to
publish a retraction of the
publication on which the action
turned. The defendant claiming
to be aggrieved by and
dissatisfied with the judgment
of the trial High Court appealed
there from to the Court of
Appeal. Pending the
determination of the appeal, the
defendant applied to the trial
Court for an order of stay of
execution of the orders of the
Court. The application having
been refused by the High Court;
the defendant filed a repeat
application that was authorized
under the rules of the Court of
Appeal. In its ruling dated 3rd
March 2010, the Court of Appeal
granted the application for stay
of execution of the judgment of
the High Court pending the
determination of the appeal. The
instant proceedings arise as a
result of the appeal by the
plaintiff from the order of stay
of execution that was granted by
the Court of Appeal.
HELD
in the matter
pending the determination of the
appeal, and it would have been
unreasonable for the plaintiff
to publish the retraction only
to be adjudged successful on
appeal. Then there is also the
question of the refund of the
judgment debt and costs that
were awarded by the trial Court
by the plaintiff in the event of
the appeal succeeding. We think
that the Court of Appeal must
have taken these factors into
consideration in allowing the
application. In particular, we
think that the learned justices
of the Court of Appeal acted
rightly in avoiding what might
turn out to be an obvious
embarrassment if the plaintiff
were to publish the retraction
ordered under the judgment only
to be adjudged victorious on
appeal. The effect is that this
ground like those preceding it
fails.
We do not
think that it is necessary for
our decision in this application
to embark upon the discussion of
the reasons for which a Court
may accede to an application for
stay of execution. It is
sufficient for the purpose of
this decision to say that an
examination of the ruling the
subject-matter of these
proceedings reveals that it was
delivered taking into account
settled principles in such cases
and appears to us taking into
account the processes on which
the application was based that
there were sufficient materials
before them that justified their
conclusion. Consequently, this
ground of appeal also fails.
For these
reasons, the appeal herein is
dismissed and the ruling of the
Court of Appeal dated 3 March
2010 is affirmed.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules,1996 CI 16.
Court of
Appeal Rules,1997 CI 19.
Evidence Act
(NRCD 323)
CASES
REFERRED TO IN JUDGMENT
Dahabieh v S
A Turqui [2001-2002] SCGLR
Re Mcrae
(1883), 25 Ch.D. 16
Ex-parte
Ghana Cable Ltd [2005-2006]
SCGLR 107
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
KWASI AFRIFA
FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
STEPHEN
AGYEMANG FOR THE
DEFENDANT/APPELLANT/RESPONDENT
J
U D G M E N T
GBADEGBE JSC:
In the action
out of which this appeal arises,
the plaintiff obtained judgment
against the defendant for
defamation and was awarded
damages as well as an order
directed at the defendant to
publish a retraction of the
publication on which the action
turned. The defendant claiming
to be aggrieved by and
dissatisfied with the judgment
of the trial High Court appealed
there from to the Court of
Appeal. Pending the
determination of the appeal, the
defendant applied to the trial
Court for an order of
stay of
execution of the orders of the
Court.
The application having been
refused by the High Court, the
defendant filed a repeat
application that was authorized
under the rules of the Court of
Appeal. In its ruling dated 3rd
March 2010, the Court of Appeal
granted the application for stay
of execution of the judgment of
the High Court pending the
determination of the appeal. The
instant proceedings arise as a
result of the appeal by the
plaintiff from the order of stay
of execution that was granted by
the Court of Appeal.
In the notice
of appeal on which these
proceedings are based, the
plaintiff raised several grounds
of complaint against the
delivery of the Court of Appeal.
The delivery herein is
sequential to the submission to
the court by the parties of
their respective statements of
case. In considering the appeal
herein, we propose to examine
the grounds in the order in
which they were argued in the
plaintiff’s statement of case
filed on 7th July
2010. This being the position,
we commence with the ground that
was formulated as follows:
“The
court erred in granting an
application that was manifestly
incompetent.”
The above
ground, in our opinion is
expressed in vague or general
terms contrary to the provisions
of rule 6.5 of the Supreme Court
rules, CI 16 which is in the
following words.
“A ground of
appeal which is vague or general
in terms or does not disclose a
reasonable ground of appeal is
not permitted, except the
general ground that the judgment
is against the weight of the
evidence and a ground of appeal
or part of it which is not
permitted under this rule, may
be struck out by the Court on
its own motion or on application
by the respondent.”
This rule
permits the court to strike out
offending grounds of appeal but
since we allowed the parties to
address us on the said offending
ground and in order not to deny
the parties of the benefit of
the submissions made there
under, we would take it into
account in the consideration of
the appeal herein. It is hoped,
however that this indulgence be
not construed as a relaxation of
the requirement of the rule on
the content of grounds of appeal
and that in the future the Court
would apply the provisions of
the rule strictly in order to
achieve the purpose for which
they were expressly made namely
regulating the practice and
procedure of the Court. In our
opinion, it is not unreasonable
to say that all persons who
appear before this Court are of
the expectation that the
processes and steps that they
take in any action or matter
before the Court must, to be
competent conform to the
provisions of the
Supreme
Court Rules, CI 16.See:
DAHABIEH
v S A TURQUI [2001-2002] SCGLR
498.
In his
arguments under the first
ground, the plaintiff contended
that since the application whose
refusal is the subject-matter of
this appeal was a repeat
application under rule 28 0f the
Court of Appeal Rules CI 19, the
applicant ought to have provided
in the affidavit supporting it
that a previous application to
the trial High Court had been
made and refused. The plaintiff
cited no authority to support
his contention but suffice it to
say that even if the said
position were correct his
conduct in swearing to an
affidavit on the merits as well
as exhibiting to his affidavit
in answer to the application the
ruling of the High Court on the
application for stay have the
effect of waiving what was a
mere irregularity. Therefore, in
our view this ground fails. See:
Re MCRAE
(1883), 25 Ch.D. 16
We then pass
to a consideration of the next
ground which was expressed thus:
“The
Court of Appeal erred in
interfering with the exercise of
discretion by the trial High
Court judge in the absence of
any indication that the trial
judge’s discretion was not
judicially exercised.”
In support of
this ground several cases were
referred to on the principle
that where a court below
exercises a discretion on a
matter before it, an appellate
court should not substitute is
own discretion for that of the
court from which the appeal is
mounted. A careful reading of
the cases on which great
reliance was placed by the
plaintiff informs us that none
of them deals with a repeat
application but were
pronouncements made in cases
where the appellate courts were
exercising the jurisdiction by
way of an appeal from the
exercise of discretion in a
Court below. I think that
although the application before
the Court of Appeal involved the
exercise of a discretion, to
constrain the court in such
matters to cases in which the
jurisdiction to determine a
discretionary matter is one
primarily for the trial court
which may only be reheard
following an appeal lodged
therefrom is to miss the
difference between the two
jurisdictions. While in one case
the jurisdiction is primarily
that of the trial court for
example in an application for
interlocutory injunction made to
the trial court in the exercise
of its jurisdiction and not
consequent upon an appeal; in
cases where an appellate Court
exercises a repeat jurisdiction
following a previous refusal by
the trial court as for example
in applications for stay of
execution pending the
determination of an appeal that
is specifically provided for by
the rules of Court the nature of
the jurisdiction exercised by
the appellate court though is in
relation to the same relief is
independent and enables the
appellate court to determine
the matter with a view to doing
justice to the parties. We make
reference to rule 28 of the
Court of Appeal Rules, CI 19
that provides as follows:
“ Subject
to these Rules and to any other
enactment, where under an
enactment an application may be
made 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 to grant the
application, the applicant is
entitled to have the application
determined by the Court.”
See: Twum
JSC (as he then was) in the case
of Ex-parte
Ghana Cable Ltd [2005-2006]
SCGLR 107 at 109.
We think that
to reach any other conclusion on
the nature of the jurisdiction
conferred on the Court of Appeal
under rule 28 (supra) is to
leave parties who lose their
cases before trial Courts and
whose application for stay of
execution have been denied even
wrongfully with no other remedy
as in most cases such
applications find no favor with
the Court whose decision is on
appeal. This, no doubt would
undermine the integrity of the
appellate process and render
appeals not worth the while. We
are of the opinion that no
rational judicial system would
give effect to the substance of
the urgings on us by the
plaintiff. Accordingly, this
ground also fails. This leaves
us with the next ground of
appeal that was formulated thus:
“The
ruling was against the weight of
the affidavit evidence.”
The substance
of the arguments submitted under
this ground is that a
consideration of the rival cases
of the parties in terms of the
affidavit evidence before the
Court of Appeal did not warrant
the grant of the application and
that the application ought to
have been dismissed. We have
examined the record of appeal
and attended to the very brief
submissions made on this point
and say without any hesitation
that having regard to the orders
made by the trial High Court
particularly that of a
retraction of the publication
on which the action was
planked, there was the need for
the court to judiciously balance
the respective rights of the
parties
in the matter pending the
determination of the appeal, and
it would have been unreasonable
for the plaintiff to publish the
retraction only to be adjudged
successful on appeal. Then there
is also the question of the
refund of the judgment debt and
costs that were awarded by the
trial Court by the plaintiff in
the event of the appeal
succeeding. We think that the
Court of Appeal must have taken
these factors into consideration
in allowing the application. In
particular, we think that the
learned justices of the Court of
Appeal acted rightly in avoiding
what might turn out to be an
obvious embarrassment if the
plaintiff were to publish the
retraction ordered under the
judgment only to be adjudged
victorious on appeal. The effect
is that this ground like those
preceding it fails.
We now turn
our attention to the fourth
ground. The said ground was
expressed as follows:
“ The
court erred in basing itself on
a material not before it and not
being part of the evidence led
and goading the Defendant\
Respondent’s counsel on to claim
a defence of qualified privilege
which was not part of the
defendant’s case at all.”
The argument
on this ground was briefly
expressed and it was this. That
the defendant did not raise the
defence of qualified privilege
at the trial but was enabled to
have it argued as part of his
case at the hearing of the
application for stay of
execution before the Court of
Appeal. In our thinking since
the said assertion was
challenged by the respondent in
his statement of case in answer
to the plaintiff’s submissions,
the obligation was on the
plaintiff to demonstrate that
his version of the matter was
true and in particular making
available to the Court the
relevant pleadings and the
arguments made at the hearing of
the application for stay of
execution pending the
determination of the appeal in
the Court of Appeal. Not having
sought the inclusion of the
relevant documents in the record
of appeal at the stage that the
record was settled, his version
of the record is not borne out
by the record of appeal before
us and taking into account
section 37 of the
Evidence
Act (NRCD 323) on the
presumption of regularity of
official acts, this ground
fractures and must fail. We now
turn to the remaining ground,
which is expressed in the
following words:
“The
defendant neither established
that the appeal had a reasonable
prospect of success nor that
irreparable harm will be
occasioned by the defendant by a
refusal of the application”
We observe
in regard to this ground that
although an application for stay
of execution pending appeal may
be granted in the discretion of
a Court when the judgment on
which based is shown by the
applicant at the hearing to
suffer from an erroneous
statement of law or that a
refusal would occasion
irreparable harm or
inconvenience to the applicant
these are not the only reasons
for which a court may make a
grant. The Court in granting or
refusing an application for stay
of execution pending the
determination of an appeal acts
according to well settled
principles that enables it to
bridge the gap in the
intervening period between the
delivery of the judgment in the
court below and the time that
the appeal is finally determined
in order to deal with the rights
of the parties in the pending
appeal by the grant of interim
or provisional remedies, which
among others ensure that a
successful appeal is not
rendered nugatory by the making
of orders such as that in
respect of which the instant
proceedings was launched by the
plaintiff.
We do not
think that it is necessary for
our decision in this application
to embark upon the discussion of
the reasons for which a Court
may accede to an application for
stay of execution. It is
sufficient for the purpose of
this decision to say that an
examination of the ruling the
subject-matter of these
proceedings reveals that it was
delivered taking into account
settled principles in such cases
and appears to us taking into
account the processes on which
the application was based that
there were sufficient materials
before them that justified their
conclusion. Consequently, this
ground of appeal also fails.
For these
reasons, the appeal herein is
dismissed and the ruling of the
Court of Appeal dated 3 March
2010 is affirmed.
N.
S. GBADEGBE
JUSTICE
OF THE SUPREME COURT
W. A. ATUGUBA
JUSTICE
OF THE SUPREME COURT
S.
A. BROBBEY
JUSTICE OF THE SUPREME COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
J.
ANSAH
JUSTICE
OF THE SUPREME COURT
COUNSEL:
KWASI AFRIFA
FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
STEPHEN
AGYEMANG FOR THE
DEFENDANT/APPELLANT/RESPONDENT. |
