R U L I N G
ATUGUBA JSC:-
The applicant moves "this
honourable court to suspend
the order of the Court of Appeal:
Their Lordships Quaye, Addo and
Acquaye JJA dated 30 March 2009
and to stay execution of the
judgment of the High Court,
Sekondi, Coram: His
Lordship, Honyenuga dated 30 May
2008 upon the grounds contained
in the accompanying affidavit
and for any further order(s) as
this honourable court may deem
meet." (The emphasis is ours).
The facts grounding this
application are stated in the
following relevant paragraphs of
the supporting affidavit:
"(3) On 30 May 2008, the High
Court, Sekondi, presided over by
his Lordship, Honyenuga J,
delivered judgment in the suit
between the plaintiff bank and
the defendants.
(4) In the said judgment, his
lordship ruled in favour of the
defendants-respondents-respondents
on their counterclaim and also
awarded general damages of Gh¢300,000
together with costs of Gh¢6,000
against the
plaintiff-appellant-applicant.
(5) Dissatisfied with the
judgment, the
plaintiff-appellant-applicant
caused an appeal to be filed on
its behalf challenging the
judgment of the honourable
court.
(6) On 14 July 2008, the
plaintiff-appellant-applicant
filed a motion to stay execution
of the judgment of the High
Court, Sekondi pending appeal.
(8) On 19 February 2009, the
High Court, Sekondi presided
over by His Lordship, Agbevor J
dismissed the
plaintiff-appellant's
application to stay execution of
the judgment of the court.
(9) On a repeat application to
the Court of Appeal, Coram:
Their Lordships Quaye, Addo and
Acquaye JJA, the honourable
court, on 30 March 2009 ordered
the
plaintiff-appellant-applicant to
pay half of the judgment debt in
the sum of Gh¢150,000 to the
defendants-respondents-respondents
pending the determination of the
appeal. Annexed and marked
as exhibit M is the ruling of
the Court of Appeal. It is
the contention of the
plaintiff-appellant-applicant
that exhibit M amounts to a
refusal of the application for
stay of execution.
(10) The
plaintiff-appellant-applicant is
dissatisfied with the ruling of
the Court of Appeal because in
its opinion, the
defendants-respondents-respondents
are currently impecunious and
do not have the capability to
pay back the money to the
plaintiff-
appellant-applicant should its
appeal be successful and has
accordingly filed an appeal
against the said ruling in this
honourable court.
(11) It is the prayer of the
plaintiff-appellant-applicant
that the ruling of the Court
of Appeal be reversed and an
order granted to stay execution
of the judgment of the High
Court, pending appeal since
the appeal has good prospects
of success.
(12) Your Lordships' reversal
of the ruling of the Court of
Appeal delivered on 30 March
2009 would obviate any
hardship which might be visited
upon the
plaintiff-
appellant-applicant in its
efforts to recover the amount of
Gh¢150,000 which it was ordered
to pay by the Court of Appeal,
taking into consideration the
fact that the
defendants-respondents-respondents
do not have liquid cash." (The
emphasis is ours).
It is also pertinent to set out
in full the ruling of the Court
of Appeal (as per exhibit M) as
follows:
"Court: We have carefully
considered the issues before us
in this application. Since the
appeal is pending, it is our
duty to hold the balance evenly
between the parties, taking into
account, inter alia, the issues
of hardship, the entitlement
of the victorious party in the
trial court and the taking
of steps not to make the appeal,
if successful, nugatory. We
accordingly order that the
application be granted subject
to terms, and execution of the
judgment of the trial court
stayed subject to the applicant
judgment debtor paying to the
defendants judgment creditors
the sum equal to fifty per cent
of the judgment debt and also
the whole of the costs awarded
in the trial court within thirty
days from the date of this
order, failing which this
order would lapse."
(The emphasis is ours).
From the foregoing, it is clear
that the applicant bank is
seeking the following reliefs
from this court:
(a) the suspension of the order
of stay of execution granted on
terms by the Court of Appeal;
(b) reversal of that order; and
(c) stay of execution of the
judgment of the trial High
Court.
The powers of this court with
regard to stay of execution
pending appeal are provided in
rule 20 of the Supreme Court
Rules, 1996 (CI 16), as follows:
"20. Effect of appeal
(1) A civil appeal shall not
operate as a stay of
execution or of 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 that court
refuses to grant the
application, the applicant
may repeat the application
before the Court for
determination. (The emphasis is
ours).
With regard to the suspension of
the order of stay of execution
granted on terms by the Court of
Appeal, this court has recently
shown in the case of Anang
Sowah v Adams,
MJ8/2/2009, given on 14 January
2009 (to be reported in [2009]
SCGLR 111) that contrary to the
earlier decision of this court
in Takyi v Ghassoub
(Ghana) Ltd [1987-88] 2 GLR
452, this court can, in an
appropriate case, grant a "stay
of proceedings under the
judgment or decision appealed
against," under rule 20(1)
of the Supreme Court Rules, 1996
(CI 16), and not only in respect
of execution process. The scope
of our jurisdiction in that
regard was therein set out. In
this regard we would, in this
modern era of functional or
purposive justice liberally
interpret the word "proceedings"
in rule 20(1) as referring to
any steps that are required or
are necessitated, and not merely
occasioned, by the judgment
appealed from.
In the instant case, the grant
by the Court of Appeal of the
stay of execution on terms is
not executable, in the sense
that the defendants cannot be
compelled by any process to
comply with the said terms. The
said terms were solely for the
personal benefit of the
defendants and, save in very
exceptional circumstances, a
person can waive even a statute
which confers a benefit on him:
see Dhalomal v
Puplampu [1984-86] 1 GLR
341, CA and Republic v
High Court, Accra; Ex parte
Asakum Engineering &
Construction Ltd [1993-94] 2
GLR 643, SC. In this case, as
the Court of Appeal indicated in
its order of stay of execution,
in the event of its
non-compliance, it merely
lapses: see Ababio v
Mensah [1989-90] 1 GLR 560,
SC. However, since when
the
defendants decide to take
advantage of the terms of the
said conditional stay of
execution, they would have been
proceeding directly in
compliance with the said order
of the court, that step can be
the subject-matter of an
application for "stay
of proceedings under the
judgment or decision appealed
against." "Judgment" in
this context should include any
order made by the court below,
to which the appeal relates.
But even there the applicant
bank has failed to make a prior
application to the Court of
Appeal after appealing from that
order to this court as required
by rule 20(2) of CI 16. However,
the applicant bank is of the
view that, that step is
pointless since the Court of
Appeal would be unlikely to
change its mind. This is not
only speculative but a plea to
us to ignore the plain
requirements of the provision in
rule 20(2). It is plain that we
cannot so do. It would also
mean that the invocation of the
review jurisdiction of the High
Court which, save in limited
circumstances, has to be made to
the judge who decided the case,
has also to be judicially
ignored. In any case,
jurisdiction attaches to a court
and not to a particular bench or
judges: see Asare v
The Republic [1968] GLR 37,
CA (full bench) and Aidoo
v Commissioner of Police (No
2) [1964] GLR 344, SC.
Therefore, the application under
rule 20(2) may not necessarily
go before the same bench that
dealt with it at first. This
court is, however, a court of
law and not a court of
arbitrariness.
As regards relief (b) in the
instant interlocutory
application, namely, the
reversal of the said order of
the Court of Appeal, it is
clearly not possible. And as to
relief (c) above, ie an order to
stay execution of the trial
court's judgment, it is plainly
outside this court's
jurisdiction under rule 20(1) as
explained by this court in
Anang Sowah v Adams
(supra). But the applicant
relies heavily on the case of
NDK Financial Services Ltd v
Yiadom Construction &
Electrical Works [2007-2008]
1 SCGLR 93. The Editorial
Note to that decision
(as stated at page 95 of the
Report) is the first indication
that, that decision cannot
endure for long. That reliance
is per incuriam of this
court's unanimous decision in
Republic v Duffour; Ex
parte Asare [2007-2008] 1
SCGLR 394 where under the
heading: "Contempt
jurisdiction in respect of order
confirmed on appeal" the
court said at page 401:
"The other reliefs, though
enforceable, were not orders of
this court but orders of the
trial High Court which were
merely confirmed by this court
on appeal from the judgment
of the Court of Appeal. It
has sometimes been held in this
court that such confirmed orders
are enforceable by the
confirming court. We think
that, with the greatest respect,
the better view is that such
confirmed orders remain the
orders of the court that made
them and are to be enforced by
the same court: see Mosi
v Bagyina [1963] 1
GLR 337, SC. Indeed, the
nature of an appeal lends
support to this view. An appeal
is a plea to a higher court to
correct the decision of a lower
court which is contended to be
wrong: see A/S Norway Cement
Export Ltd v Addison
[1974] 2 GLR 177, CA (full
bench). If therefore the
appellate court does not
interfere with the decision
below, one would have thought
that the decision in question
remains wholly that of the
lower court. This is fortified
by the principle that if a lower
court's judgment is confirmed on
appeal, the judgment of the
lower court is effective as from
the date it was given by such
lower court: see In re Debtor
[1953] 1 WLR 1050. There is
further
fortification for this view in
the several decisions of this
court that where an appellate
court dismisses an appeal
without making any executable
orders by itself, there cannot
be an application for stay of
execution pending an appeal from
such a judgment: see
Mensah v Ghana Football
Association [2001-2002]
SCGLR 318.
There are isolated decisions and
dicta of this court tending to
the contrary, but with the
greatest respect, there is a
heavy body of authorities in
support of the view that orders
which have been merely confirmed
on appeal cannot be the subject
of an application for stay of
execution pending an appeal from
such judgments." (The
emphasis is ours).
From early times, the highest
courts in Ghana have held that
the judgment of a lower court
which has been affirmed on
appeal remains the judgment of
such lower court and not of the
appellate court. See further
Ware v Soboah [1960]
GLR 212, SC in which it is
stated in the headnote thus:
"Held - the trial court
in the circumstances was not
competent to make a finding of
joint ownership of the land, and
that finding would, therefore,
be deleted from the native court
judgment. Save as so varied,
the judgment of the Land Court
stood." (The emphasis is
ours).
See also Sirebour v
Dome [1962] 1 GLR 82 at 86.
Again in Kwashi v
Boahene Adjei, CMJ8/39/2008,
unreported, dated 28 October
2008, this court (Coram:
Atuguba, Brobbey, Dr Date-Bah,
Sophia Adinyira and
Baffoe-Bonnie JJSC) unanimously
dismissed an application for
stay of execution in these
words:
"No appearance for or on behalf
of the applicant. Application
is dismissed for want of
jurisdiction since the
application could not relate to
any legal proceedings that can
be stayed at the Court of
Appeal. Costs of GH¢2,000
for the respondents." (The
emphasis is ours).
For the avoidance of doubt, we
hereby depart from the decision
of this court in the said NDK
Financial Services Ltd v
Yiadom Construction & Electrical
Works [2007-2008] SCGLR 93.
For all the foregoing reasons
the application is dismissed.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
S. O. A.
ADINYIRA(MRS)
(JUSTICE OF THE SUPREME COURT)
R. C. OWUSU(MS)
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JOSEPH AKYEAMPONG FOR THE
APPLICANT.
EBOW QUASHIE FOR THE RESPONDENT.
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