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Practice and procedure - Special
leave to appeal - Stay of
execution pending appeal
-
Whether
bid to provide services
can be accepted by the
applicants and that a formal
contract was to follow soon
- Whethe
there was a prima facie error on
the face of the record - whether
a general principle of law had
arisen for the first time.
HEADNOTES
The background to this
application is as follows: On 14th December,
2016 the High Court, after a
full trial, gave judgment
against the
Plaintiff/Appellant/Applicant/Applicant,
to be referred to as the
Applicant, to pay various sums
of money to the Defendant/
Respondent/Respondent/
Respondent, hereafter referred
to as Respondent. The High
Court found the amounts due on
account of the applicant's
cancellation of a tender process
in which the respondent
participated. Applicant
being aggrieved by the judgment
appealed against it and applied
to the High Court for an order
for stay of execution pending
the determination of the appeal
by the Court of Appeal. By a
reasoned ruling dated 9th February,
2017 the High Court dismissed
the application for stay of
execution. Applicant filed
another motion praying the High
Court to review its refusal of
the application for stay but
that too was dismissed for
reasons stated in the court's
ruling dated 7th March,
2017. Thereafter, Applicant
repeated its initial motion on
notice for stay of execution
pending appeal before the Court
of Appeal and it was listed
before a single Judge.
Respondent vehemently opposed
the application. The applicant
filed a supplementary affidavit
and offered to post a bank
guarantee as security to satisfy
the judgment debt if it lost the
appeal but the single judge in
his reasoned ruling dated 27th March,
2017 did not consider that offer
equitable and rather granted the
application for stay on terms by
directing that fifty percent of
the judgment debt be paid to the
Respondent. Being dissatisfied
with the conditions of the
grant, applicant applied to the
regular panel of the Court of
Appeal to vary the decision of
the single Judge. On 24th May,
2017, the Court of Appeal duly
constituted gave its ruling
dismissing the application.
HELD :-
On the substance and merits of
the case, we have considered the
many grounds of appeal urged on
us by the Applicants as the
grounds upon which they intend
to mount the appeal if special
leave is granted., We take note
of grounds (a)(b) (e) (f) and
(g) as those meeting the
criteria that has been
established as the standard
criteria for grant of special
leave to appeal to this court.
In our opinion, there is a
public interest issue involved
in the resolution of these
grounds of appeal and to our
mind, it is imperative that the
application should be granted to
afford the applicants the need
to articulate this public
interest issues.
The application therefore
succeeds.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, C. I.
16 Rule 73
1992 Constitution,. Article
134(b)
Courts Act (ACT 459),
Supreme Court (Amendment) Rules
2016, C. I. 98. Rule 73
CASES REFERRED TO IN JUDGMENT
Kwasi Owusu & Anr. V John Nmai
Addo & Anr. C. A. No J4/50/201
Dolphyne (No. 23) v Speedline
Stevedoring Co. Ltd. [1996-97]
SCGLR 373.
Ex-parte Ghana Cable
[2005-2006] 107
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE, JSC:-
CORAM:
DOTSE, JSC (PRESIDING)
BAFFOE-BONNIE, JSC BENIN, JSC
COUNSEL.
JUSTICE MINKAH-PREMO FOR
THE DEFENDANT/APPELLANT/APPLICANT.
THADDEUS SORY FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
RULING
DOTSE, JSC:-
This is a Ruling arising
from an application for special
leave to appeal to the Supreme
Court pursuant to Article 131
(2) and 134 (b) of the
Constitution 1992, filed by the
Defendant/Appellant/Applicant
hereafter referred to as
Applicants.
The application has been
opposed by the
Plaintiff/Respondent/Respondent,
hereafter referred to as
Respondents.
In view of the somewhat
complicated and complex facts of
this case, we deem it
appropriate to set out the facts
in some detail as follows:-
FACTS OF THE CASE
The Applicants by an
advertisement, invited bids for
the provision of crane and
forklift services in Takoradi in
April 2011. The Respondents
answered the advert and put in
their offer for tender, in
accordance with the Applicant’s
tender instructions. The
Applicants, after a meeting on 1st
November, 2011, sent an email to
the Respondents with a Letter of
Intent (LOI) attached to allay
the Respondent’s fears over the
delay in executing a formal
contract between the parties.
This LOI, according to the
Applicants was a sign of their
intention to execute a formal
contract between the parties,
subject only to formal approval
from the Applicants management
and partners. After the close of
the tender period, the
applicants, on 20th July, 2011
represented to the respondent in
both words and conduct that the
respondent’s bid to provide
crane and forklift services had
been accepted by the applicants
and that a formal contract was
to follow soon.
The respondents, based on
these assurances, moved
operation from Mali and Togo to
Ghana and acquired equipment and
an operational base in Takoradi
for the provision of the crane
and forklift services required
by the applicants. However,
before the respondents could
commence operations, the LOI was
terminated by the applicants,
leading to a suit in court.
At the trial High Court,
compensatory damages of GHS10
million and USD$113,000.00 and
costs of GHS80,000.00 were
awarded against the applicants.
Dissatisfied with the ruling of
the trial Court, the applicants
then appealed the decision to
the Court of Appeal on 5th
January 2017.
A Motion for Stay of
Execution pending Appeal was
filed by the Applicants and
moved on 25th
January, 2017. The High Court,
on 9th February, 2017
however, refused this
application. A repeat
application was then applied for
in the court of Appeal. On the
27th of March, 2017,
a partial stay of execution of
the High Court judge’s judgment
was allowed by the Court of
Appeal constituted by a single
Judge.
The Applicant then applied
under article 138 (b) of the
Constitution and section 12 of
the Courts Act (ACT 459), to
have the application determined
by the Court of Appeal duly
constituted by way of reversal,
variation or discharge of the
decision of the single justice.
The Applicant’s application for
stay of execution to the Court
of Appeal duly constituted was
also dismissed, confirming the
decision of the single Judge on
24th May 2017
An application pursuant to
articles 131 (2) and 134 of the
Constitution to a single Judge
of the Supreme court for a
variation of the orders of the
Court of Appeal duly constituted
was also dismissed per a
considered ruling by our
respectful brother Pwamang JSC.
The dismissal of the Applicant’s
application for Variation is the
basis of the current application
for Special Leave before three
Justices of the Supreme Court in
accordance with the provisions
of Article 134(b) of the
Constitution, 1992.
It will therefore appear that
the application by the
applicants before us in this
court is for the determination
of an application for special
leave to appeal to the Supreme
Court the decision of the Court
of Appeal, duly constituted
dated 24th May 2017.
Initially, it appeared that the
applicants had appealed or were
intending to appeal against the
decisions of both the single
Judge of the Court of Apeal
given on 27th March
2017 and that rendered by the
duly constituted panel on 24th
May 2017.
However, per the supplementary
affidavit in support of the
application sworn to by one
Felix Antwi and filed on 20th
October 2017, the deponent
therein deposed to in paragraph
42 thereof as follows:-
“That the Respondents makes no
denial of paragraphs 23-38 save
to say that this motion for
special leave to appeal seeks to
target the ruling of the Court
of Appeal duly constituted
instead of the decision of the
single Justice of this
Honourable Court.” Emphasis
Per the above deposition, the
applicants made it quite clear
that it was the decision of the
Court of Appeal duly constituted
that they were seeking special
leave to appeal against.
As has been indicated in the
narration of the facts supra,
the learned single Judge of this
court, refused to grant special
leave to the applicants when the
jurisdiction of this court was
duly invoked. It must be
emphasized at this stage that,
during the delivery of the
ruling by our distinguished
brother, he reviewed the grounds
upon which this court’s
jurisdiction for special leave
are normally granted as per the
relevant case laws and
constitutional and statutory
provisions i.e. articles 131 (2)
of the Constitution which
provisions are in pari materia
to the provisions in section 4
of the Courts Act, Act 459, the
same provisions under which the
application had been brought.
The grounds upon which this
courts jurisdiction may be
invoked for special leave summed
up by the single Judge of this
court are the following:-
1. Where there was a
prima facie error on the face of
the record,
2. A general principle
of law had arisen for the first
time
3. That a decision of
the Supreme Court on the point
sought would be advantageous to
the public
See the unreported judgment of
the Supreme court dated 30th
July 2015 in the case of
Kwasi Owusu & Anr. V John Nmai
Addo & Anr. C. A. No J4/50/2014,
per Wood C.J and Dolphyne
(No. 23) v Speedline Stevedoring
Co. Ltd. [1996-97] SCGLR 373.
It should be noted however
that, the said grounds are not
exclusive and could be expanded
depending on the circumstances
of each case.
PRELIMINARY OBJECTION
We observe that arising from a
deposition in paragraph 8 of the
affidavit in opposition sworn to
by one Theodora Tawiah Amarh and
filed on the 18th
October 2017, wherein the
applicants application herein
was described as incompetent,
learned counsel for the
applicants Minkah-Premo devoted
a substantial portion of his
submissions before us to this
preliminary issue. Out of
abundance of caution, it is
considered worthwhile to state
in full the said depositions.
“That a comparison of
Defendant’s instant application
and the grounds urged on this
court in respect of it will
confirm that the application
is incompetent as it does not
invoke the jurisdiction of the
court to vary, discharge or
reverse the decision of the
single justice of the court
are for the bald prayer to
determine the same application
already ruled upon by the single
Justice of this Court. Emphasis
We have considered the
submissions of learned counsel
for the applicants on the
1. Pre- 22nd
September 2016 procedural regime
which according to him was
driven by Rule 73 of the Supreme
Court Rules, C. I. 16 and
2. Post 22nd
September 2016 procedural
regime, regulated now by the
Supreme Court (Amendment) Rules
2016, C. I. 98.
Under Rule 73 of C. I. 16,
the Rule provided as follows:-
“An application pursuant to
article 134 of the Constitution
in respect of a cause or matter,
civil or criminal, shall be made
by motion on notice and shall be
served on a party who has an
interest in the cause or
matter”.
This according to learned
counsel for applicants only
meant that an application
pursuant to article 134 of the
Constitution has to be by motion
on notice and served on a party
who has an interest in the cause
or matter unlike the provisions
in the post 22nd
September 2016.
The provisions in Rule 73
of C. I. 98 provides as
follows:-
“Review of decision of single
Justice
73 (1) A
person dissatisfied with the
decision of a single Justice of
the Supreme Court in respect of
an application determined under
article 134 of the Constitution,
may apply to the Supreme Court
to have the application
determined by three Justices of
the Court.
(2) The
application to have the cause or
matter determined by the three
Justices shall be by motion on
notice and shall be served on
any other party who has an
interest in the cause or
matter.”
According to learned
counsel for the Applicants,
under C. I. 98, an application
pursuant therein was to vary,
discharge and or reverse the
order made by a single justice
of the Supreme Court.
In this respect, Counsel
argued that, an application
therein can be based on
variation, reversal or discharge
either standing alone or
combined with any of the other
grounds.
In this particular
instance, learned counsel argued
that because of the above
provisions in C. I. 98 which is
in pari materia to the
provisions in article 134 (b) of
the Constitution, the present
application is not incompetent
as contended by learned counsel
for the Respondents, Thaddeus
Sory, in paragraph 8 of the
affidavit in opposition.
BY COUNSEL FOR RESPONDENTS
Learned counsel for the
respondents however submitted
that the application is
incompetent as it has been
brought in violation of article
134 of the Constitution and
section 7 of the Courts Act, Act
459.
Whilst conceding that
under article 134 (b) of the
Constitution, the applicants are
entitled to have the application
re-heard on any of the three
grounds of variation, discharge
or reversal and not to repeat
it, learned counsel for
respondents nevertheless argued
that it was incompetent.
According to learned counsel, C.
I. 98 has not regulated
procedure, but rather substance
as contained in article 134 (b)
and Section 7 (b) of the Courts
Act, Act 549. In that respect,
because the applicants have
failed to indicate on what
grounds the application has been
invoked, i.e. variation,
reversal or discharge learned
counsel for respondents urged
that the application is
incompetent and should be
dismissed.
We have taken into consideration
the submissions of learned
counsel on this issue of
incompetence of the application
before us. We have considered
all the constitutional,
statutory and procedural rules
referred to us i.e. articles 131
(2), 134 (b) and 138 (b) all of
the constitution as well as
sections 7 (b) and 12 of the
Courts Act 1993, Act 459 as well
as section 73 of the Supreme
Court (Amendment) Rules 2016, C.
I. 98 and to some extent the
Court of Appeal (Amendment)
Rules, 2016 C. I. 100, and are
satisfied that the application
herein is a legitimate
application flowing directly
from article 134 (b) of the
Constitution. The Sections of
the Courts Act, Act 459 and the
Rules of Procedure referred to
all empower the applicants
herein to apply for a variation
of the orders contained in the
Ruling of the single Judge of
this court.
We therefore consider the
preliminary objection on the
incompetency of the instant
application as a red-herring and
accordingly dismiss it.
Now to the substance of the
arguments.
On the substance of the
application before this court,
learned counsel for the
applicants urged the court to
consider an application made to
it pursuant to article 134 (b)
as a stand alone application for
either variation, reversal or
discharge of the orders of the
single Judge. According to
learned Counsel, depending upon
the grounds and circumstances of
each case, the court may
consider only one of the
applicable grounds and grant the
application. Thus, it is wrong
for such an application to be
bundled up in all cases as
coming under the three grounds
of variation, reversal and or
discharge.
This according to learned
Counsel is because, arguments
for variation as in the instant
case would be different from
arguments on the other grounds,
e.g. reversal or discharge. In
support of the said arguments,
learned counsel referred the
court to the case of Ex-parte
Ghana Cable [2005-2006] 107 at
118 and contended that the
requirements in considering the
application for variation would
require different considerations
from the others, and referred us
to the grounds of appeal they
intend to rely on when leave is
granted especially grounds (a)
(b) (e) (f) and (g).
Flowing from the above, learned
counsel then prayed this court
for grant of special leave to be
granted them to appeal against
the decision of the Court of
Appeal duly constituted, dated
24th May 2017.
BY COUNSEL FOR RESPONDENTS IN
ANSWER TO THE POINTS OF
SUBSTANCE
Secondly, learned Counsel
for the respondents articulated
on the grounds upon which
special leave can be granted by
this court, which grounds have
been dealt with by the single
Judge of this court and found
not to be applicable under the
circumstances of this case.
According to learned counsel for
the respondents, the absence of
any of the applicable grounds
for grant of the special leave
is such that the application
ought to be dismissed.
He also referred to the
fact that, the Court of Appeal
duly considered the application
under article 138 (b) of the
Constitution and this is in pari
materia with article 134 (b) of
the Constitution. In that
respect, when a party comes
before a panel of three for
variation, what is to be done is
for the same application to be
repeated just as was urged
before the single Judge.
He finally concluded his
arguments that, there being no
real genuine basis for invoking
this court’s jurisdiction for
special leave to appeal, same
must be dismissed.
ANALYSIS AND DECISIONS
We have taken into
consideration all the processes
filed by both parties, the
constitutional and legal
provisions as well as Rules of
Procedure referred to supra. We
have also taken into
consideration the submissions of
both learned counsel before this
court.
On the substance and
merits of the case, we have
considered the many grounds of
appeal urged on us by the
Applicants as the grounds upon
which they intend to mount the
appeal if special leave is
granted.
We take note of grounds
(a)(b) (e) (f) and (g) as those
meeting the criteria that has
been established as the standard
criteria for grant of special
leave to appeal to this court.
In our opinion, there is a
public interest issue involved
in the resolution of these
grounds of appeal and to our
mind, it is imperative that the
application should be granted to
afford the applicants the need
to articulate this public
interest issues.
The application therefore
succeeds.
Secondly, we observe that
the amendment of both the
Supreme Court and Court of
Appeal Rules in C. I. 98 and 100
respectively does not go far.
What has been enacted in the
above Amendment Rules is only a
restatement of the substantive
laws in the Constitution
articles 134 (b) and 138 (b)
respectively, and the Courts
Act, Sections 7 and 12 thereof.
In this respect, we recommend to
the Rules of Court Committee to
as a matter of urgency make
detailed Rules of procedure to
regulate the following:-
i. Time within which
application to the three member
panels of both the Court of
Appeal and Supreme Court are to
be made from decisions of a
single Judge.
ii. Rules to regulate
and control the scope of the
powers of the single Judge i.e.
the nature of the applications
that can be put before single
Judges.
iii. Whether applicants
for review of the decision of a
single Judge must file
statements of case or not.
iv. Any other relevant
rules of procedure that can
improve upon and expedite Rules
of procedure under the single
Justice jurisdiction which has
proved very useful and
convenient.
For the above stated
reasons, we allow the
application and grant special
leave to the applicants herein
to appeal the decision of the
Court of Appeal duly
constituted, dated 24th
May 2017.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JUSTICE
MINKAH-PREMO FOR THE
DEFENDANT/APPELLANT/APPLICANT.
THADDEUS SORY
FOR THE PLAINTIFF/RESPONDENT/RESPONDENT. |
