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Practice and Procedure
- Special leave to appeal -
Article 131 (2) and 134 (b) of
the Constitution 1992 - Court
of Appeal refusing a repeat
application for stay of
execution pending appeal -
Whether the court of Appeal
misconstrued its jurisdiction
under article 138 (b) or section
12 (b) of Act 459
HEADNOTES
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 1stNovember,
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 -
HELD :-
It is for that reason that I
reject applicant's last minute
argument that there is a public
interest element in this court's
further interpretation of
article 138(b) of the
Constitution. the constitutional
requirement for special leave is
intended to sieve appeals that
do not lie as of right so as to
ensure that only those that
raise clear failure of justice
patent on the face of the record
are admitted for determination.
From the facts of this case
plaintiff through this
application is seeking to have a
fifth bite at the legal cherry.
In my considered opinion, the
matters relied on by the
applicant do not meet the
conditions for special leave in
section 4(2) of accordingly
dismiss the application.
STATUTES REFERRED TO IN JUDGMENT
COURTS ACT(
Act 459.) section 4
COURT OF APPEAL (AMENDMENT)
RULES, 2016 C.I
100
COMPANIES Act, 1963 (Act.
179) section 123
CASES REFERRED TO IN JUDGMENT
Klomega (No 2) v AG & GPHA (No
2) [2013-2014] SCGLR 581,
Dolphyne (No2) v Speedline
Stevedoring Co Ltd [1996 -97]
SCGLR 373.
Mearskworld Co Ltd (No 2) v
Zoomlion (No 2) [2013-2014] 1
SCGLR 327,
Sefa & Asiedu (No. 2) v Bank of
Ghana (No. 2) [2013-2014] 1
SCGLR 530,
Kwasi Owusu & Anor v John Nmai
Addo & Anor, Civil Appeal No.
J4/50/2014,
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
PWAMANG, JSC.
COUNSEL.
MINKAH PREMO FOR THE
DEFENDANT/APPELLANT/APPLICANT
THADDEUS SORY FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT
RULING
PWAMANG, JSC.
Before me is an
application pursuant to section
4(2) of the Courts Act, 1993
(Act 459) praying for special
leave to appeal against the
interlocutory decision of the
Court of Appeal refusing a
repeat application for stay of
execution pending appeal dated
24th May, 2017.
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. The
Court held as follows:
“The essence of what the
applicant wants us to do is to
substitute our discretion for
that of the single judge. We do
not think that was the
intendment of article 138 (b) of
the Constitution. In our view
article 138(b) is only
applicable when the applicant is
able to demonstrate that the
single judge either abused or
misused his/her power of
discretion under this article.
The applicant failed to
demonstrate this. Besides the
applicant put before us an (sic)
application that seems to be
quite different from what was
put before the single judge.
That being the case the
application does not conform to
the law and is therefore
incompetent. The application is
therefore hereby dismissed.”
It is against this
decision that the applicant is
seeking special leave to appeal
to the Supreme Court. Section 4
(2) of Act 459 is a repetition
of Article 131 (2) of the 1992
Constitution and has been
considered in a member of
decisions of this court which in
sum state three grounds upon
which the court may grant
special leave to appeal. These
are;
(a) Where there was a
prima facie error of law on the
face of the record; or
(b) A general principle of
law had rising for the first
time; or
(c) A decision of the
Supreme Court on the point
sought to be appealed against
would be advantageous to the
public.
Apparently with these
grounds in mind, the applicant
based its application on a
number of alleged errors of law
set out in the motion paper and
supporting affidavit. In arguing
the application counsel for
applicant relied on a number of
cases decided by this court on
the scope of article 138(b) of
the Constitution.
At the outset, let me
point out that the applicant has
made references to alleged
errors of law committed by the
Court of Appeal duly constituted
with regard to C.I 100 and
section 123 of the Companies
Act, 1963 (Act. 179) but in the
ruling of the court which I have
reproduced above, no reference
was made to those statutes so
those references do not quality
for consideration as prima facie
errors apparent on the face of
the record. The relevant legal
point in its application and
submissions before me is the
contention that the court of
Appeal misconstrued its
jurisdiction under article 138
(b) or section 12 (b) of Act 459
pursuant to which it applied for
the order of variation of the
decision of the Single Judge.
Paragraph 20 of the affidavit in
support sums up applicant’s
submission on this point. It
states;
“20. That I am advised and
verily believe same to be true
that the misconception of the
nature and scope of the
substantive special power of
variation, discharge or reversal
in a bundled-up form as a review
by the duly constituted court
respectfully disabled His
Lordships from applying the
appropriate test in determining
the application before them on
the day that it was moved.”
The respondent has opposed
the application and filed a
lengthy affidavit in opposition
which contained depositions on
matters of law contrary to the
well known rules of court on the
contents of affidavits. This
conduct which was indulged in by
applicant too does not conform
to the rules and ought to stop.
In the submissions of counsel
for respondent, he referred the
court a number of relevant
decided cases and prayed the
court to dismiss the
application.
In the unreported judgment
of the Supreme Court dated 30th
July 2015 in the case of
Kwasi Owusu & Anor v John Nmai
Addo & Anor, Civil Appeal No.
J4/50/2014, Wood CJ said as
follows;
“It follows that
appellants ought to have first
obtained special leave, per s. 4
ss (2) of Act 459 before
proceeding to submit their
appeal to this forum.
Understandably, this places on
them a rather onerous burden,
given that they have to
convincingly argue the likely
success of their intended appeal
within the special leave
application process. Anything
short of this will not meet the
just demands of the law, a sound
judicial policy, intended to
weed out unnecessary, frivolous
and vexatious applications for
stay, when obviously at this
point in time, the potential
appellant would have had two
bites at the legal cherry.”
Consequently, applicant
herein is required in this
application for leave to
demonstrate convincingly that
its interlocutory appeal is
likely to succeed.
The applicant has taken
issue with the lower court for
saying that in order for it to
vary the discretion exercised by
the single Judge, there must be
prove that the Single Judge
misused or abused his
discretion. But that is the
effect of this court’s
interpretation of the
jurisdiction under article
134(b) which is in pari materia
with article 138(b). In the
case of Sefa & Asiedu (No. 2)
v Bank of Ghana (No. 2)
[2013-2014] 1 SCGLR 530,
relied on by Counsel for
Applicant, Gbadegbe JSC
commenting on the jurisdiction
of the Supreme Court under
article 134(b)when called upon
to vary, discharge or reverse
the exercise of discretion by a
single judge said as follows at
pages 535/536; “…since the
application is derived from a
constitutional power vested in
us by article 134(b) of the
Constitution and involves the
exercise of a discretionary
power by the court acting by a
single justice thereof, what we
have to consider is whether in
reaching his decision, the
learned justice acted in
accordance with settled
principles of the court in the
grant and /or refusal of an
application to adduce further
evidence in the interlocutory
appeal herein.” Again, in
Mearskworld Co Ltd (No 2) v
Zoomlion (No 2) [2013-2014] 1
SCGLR 327, Anin Yeboah JSC
said as follows at page 337 of
the Report; “…as the single
judge did not, with due respect
to him, consider the limits of
his jurisdiction in dealing with
the application (for
interlocutory injunction) as he
went beyond it to consider a
very serious matter which the
parties themselves never raised
in the substantive appeal. The
submission of counsel for the
applicant on this point has not
already been canvassed at the
lower courts. He seeks to draw
this court’s attention to an
apparent error which if not
corrected would lead to a
miscarriage of justice.” So
what the Court of Appeal duly
constituted said they required
applicant to demonstrate in
order for them to vary the
decision of the single judge is
clearly supported by the
decisions of the Supreme Court
and I do not find any error they
have committed.
The next legal peg learned
counsel for Applicant, J. K.
Minkah Premo, fastened his case
on was based on the last leg of
the court’s ruling in which it
implied that under article 138
(b) an application filed for the
consideration of the court duly
constituted ought to be the same
as that placed before the single
Judge. Counsel contended that
the lower court was wrong since
the provision did not
contemplate a refilling of the
same application. This ground
was not raised in the processes
he filed in court and in any
case the court duly constituted
did not rest its decision on
that point so it cannot be said
that there has been a failure of
justice on account of that.
Article 131(2) is intended to
address matters of failure of
justice and not to deal with
perceived inconsequential
slippages by the Court of
Appeal. See Dolphyne (No2) v
Speedline Stevedoring Co Ltd
[1996 -97] SCGLR 373.
Counsel then argued in the
alternative that the application
for variation was premised on
changed circumstances so there
was even no need to prove abuse
of discretion by the single
Judge. This ground was also not
made part of the application he
filed in court and there was no
evidence by way of deposition in
the affidavit in support of the
application before me. I am
bound by the record before me
which is to the effect that the
application made to the court
duly constituted was in essence
praying them to substitute their
discretion for that of the
single Judge. That being the
record, the Court of Appeal
cannot be said to have committed
an apparent error in demanding
proof of abuse of discretion by
the single judge.
From the above discussion
of the arguments of the
applicant, I am of the opinion
that it has failed to discharge
the burden placed on an
applicant seeking special leave
to appeal against an
interlocutory decision of the
Court of Appeal.
In concluding the
unanimous judgment of this court
in the case of Klomega (No 2)
v AG & GPHA (No 2) [2013-2014]
SCGLR 581, the respected
jurist Dr Date-Bah JSC stated as
follows at page 605 of the
Report;
"This is the sixth case in
which the Supreme Court has had
to interpret article 181(5) of
the 1992 Constitution. It is
hoped that this court's
elucidation of the provision
through the case law.....has
laid the foundation for
determining the provisions
meaning predictably. With the
determination of this case, it
is now our expectation that
article 181(5) would lend itself
to application by the High
Court, rather than to further
interpretation by this court."
These comments of the
court apply with equal force to
the interpretation by this court
of article 138(b) and 134(b) in
the several decisions cited by
both counsel. The Court of
Appeal has sufficient guidance
from this court on the scope of
its jurisdiction under article
138(b). It is for that reason
that I reject applicant's last
minute argument that there is a
public interest element in this
court's further interpretation
of article 138(b) of the
Constitution. As has been stated
by this court in Dolphyne (No
2) v Speedline Stevedooring Co
Ltd (No 2) (supra) and Kwasi
Owusu v Joshua Nmai Addo (supra),
the constitutional requirement
for special leave is intended to
sieve appeals that do not lie as
of right so as to ensure that
only those that raise clear
failure of justice patent on the
face of the record are admitted
for determination. From the
facts of this case plaintiff
through this application is
seeking to have a fifth bite at
the legal cherry. In my
considered opinion, the matters
relied on by the applicant do
not meet the conditions for
special leave in section 4(2) of
Act 459. I accordingly dismiss
the application.
G. PWAMANG
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
MINKAH PREMO FOR THE
DEFENDANT/APPELLANT/APPLICANT
THADDEUS SORY FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT |
