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Execution - Stay of Execution
pending an appeal -
Interlocutory appeal - Whether
wrongful assumption of
jurisdictionof court - Whether
there was a breach of the
natural justice rules and want
of jurisdiction -
HEADNOTES
The applicant herein, a
statutory body established under
an act of parliament conducted
an investigation of the
interested party herein
involving fraud, money
laundering in the sum of
US$200,000 and other related
offences. The interested party
was subsequently charged before
the High Court, Accra in a
criminal matter. The trial High
Court upheld the submission and
acquitted the interested party.
The applicant lodged an
interlocutory appeal against the
ruling acquitting the interested
party. The interested party,
after his acquittal brought an
application to the High Court,
Accra for defreezing of his
accounts which the court had by
an earlier order frozen. The
learned judge after hearing
arguments granted the
application and ordered the
defreezing of the accounts. The
applicants feeling aggrieved by
the order lodged an appeal at
the Court of Appeal to set aside
the order. Subsequent to the
lodging of the appeal, the
applicant filed a motion for
stay of execution which was to
prevent the interested party to
have access to the accounts.
This application was granted by
the High Court after hearing
both parties. The interested
party feeling aggrieved by the
order staying execution pending
the appeal at the Court of
Appeal, filed a motion at the
Court of Appeal to vacate the
order of the High Court staying
execution. -
HELD :-
As the applicant has made a very
strong case on jurisdictional
grounds, it would suffice to
grant the application without
resort to the other grounds. The
application is therefore granted
as prayed.
STATUTES REFERRED TO IN JUDGMENT
Court of Appeal Rules, CI 19 of
1997. Rule 27 (3) (a) and (b)
CASES REFERRED TO IN JUDGMENT
REPUBLIC v COURT OF APPEAL, EX
PARTE SIDI [1987 – 88] 2 GLR
170,
BOOKS REFERRED TO IN JUDGMENT
YEBOAH, JSC:–
DELIVERING THE LEADING
JUDGMENT
COUNSEL.
CHARLES WILCOX OFORI WITH HIM
NANA AKUA ADUBEA SAKYI FOR THE
APPELLANT/ APPLICANT.
KWAMENA AFENYO MARKIN FOR THE
INTERESTED PARTY/RESPONDENT
YEBOAH, JSC:–
My Lords, the supervisory
jurisdiction of this court has
been invoked by the applicant
herein to quash the order of the
Court of Appeal dated the 9th
of May, 2018 which order sought
to set aside the order of Stay
of Execution pending an appeal
to the Court of Appeal. This
application before us raises
procedural matters which we have
been called upon to resolve.
To appreciate our reasons for
this ruling a brief summary of
the facts would suffice. The
applicant herein, a statutory
body established under an act of
parliament conducted an
investigation of the interested
party herein involving fraud,
money laundering in the sum of
US$200,000 and other related
offences. The interested party
was subsequently charged before
the High Court, Accra in a
criminal matter titled: REPUBLIC
v NICHOLAS ANAMO suit №.
FT/0063/2016. After going
through plenary trial the
interested party made a
submission of no case to answer
at the close of the case for the
prosecution. The trial High
Court upheld the submission and
acquitted the interested party.
The applicant lodged an
interlocutory appeal against the
ruling acquitting the interested
party. The interested party,
after his acquittal brought an
application titled: NICHOLAS
ANAMO vrs. EOCO as suit №.
FT.050.2016 at the High Court,
Accra for defreezing of his
accounts which the court had by
an earlier order frozen. The
learned judge after hearing
arguments granted the
application and ordered the
defreezing of the accounts.
The applicants feeling aggrieved
by the order lodged an appeal at
the Court of Appeal to set aside
the order. Subsequent to the
lodging of the appeal, the
applicant filed a motion for
stay of execution which was to
prevent the interested party to
have access to the accounts.
This application was granted by
the High Court after hearing
both parties. The interested
party feeling aggrieved by the
order staying execution pending
the appeal at the Court of
Appeal, filed a motion at the
Court of Appeal to vacate the
order of the High Court staying
execution. The motion at the
Court of Appeal was headed thus:
“MOTION ON NOTICE TO SET ASIDE
AN ORDER FOR STAY OF EXECUTION
PENDING APPEAL”
The body of the motion or the
relief sought was: “for the
Applicant/ Respondent/ Applicant
herein humbly praying this
Honourable Court to set aside an
order for stay of Execution
granted by the High Court on the
9th day of April,
2018”
The Court of Appeal granted the
application which resulted in
defreezing of the accounts in
favour of the interested party.
The applicant obviously
aggrieved by the Court of
Appeal’s order has filed this
instant application invoking our
supervisory jurisdiction to
quash the order of the Court of
Appeal setting aside the stay of
execution ordered by the High
Court.
The applicant has grounded this
application for certiorari as
follows: Wrongful assumption of
jurisdiction, breach of the
natural justice rules and want
of jurisdiction. The applicant
complains that there was no
appeal pending at the instance
of the interested party at the
Court of Appeal and therefore he
had no right to resort to
invoking the jurisdiction of the
Court of Appeal to set aside the
order staying execution duly
made at the High Court.
Generally, it is the
judgment-debtor who would apply
for stay of execution to hold in
abeyance the execution of the
judgment to be enforced when his
appeal is pending. In the case
of REPUBLIC v COURT OF APPEAL,
EX PARTE SIDI [1987 – 88] 2 GLR
170, Justice Taylor said of the
nature of stay of execution at
page 176 as follows:
“a stay of execution… means
simply the suspension of any
process or procedure that would
post date the judgment. If an
applicant asks for such stay
pending the hearing and
determination of his appeal,
that what he is in effect asking
is that all processes that can
be taken after judgment for the
purpose , no doubt of satisfying
the judgment, should be stayed
until the appeal is finally
heard and a decision on it
given”
A stay of execution may be in
operation by virtue of the rules
of court in force even when
there would be no appeal. For
example Order 51 rule 9(2) of CI
47 of 2004, permits a statutory
stay before the High Court.
Interpleader proceedings pending
for determination before a court
which delivered a judgment and
executing it normally stays
execution till the interpleader
proceedings is determined.
Another statutory stay under our
rules is under Rule 27 (3) (a)
and (b) of the Court of Appeal
Rules, CI 19 of 1997. All other
applications for stay of
execution must be made to the
court for the order to be made
after hearing the parties to the
case.
In this application, it appeared
that the applicant was the party
who had lodged an appeal to test
the judgment/order of the High
Court. He was properly before
the High Court when he filed his
application which was
subsequently granted. The
applicant could not have gone to
the Court of Appeal as the
record of proceedings had not
even been prepared at the time
he filed the motion for stay,
barely a few days after lodging
the appeal. As regards the
interested party herein, he had
no appeal pending to test the
judgment or order of the trial
High Court which had given
judgment in his favour. From the
SIDI’s case, supra it sounds
reasonable to hold that the
applicant who has lodged an
appeal would be the proper party
to file a stay at the trial
court and upon refusal repeat
the application under Rule 28 of
the Court of Appeal rules. In
this case, the interested party
had not filed any appeal and
indeed had not also filed a
motion for stay of execution at
the trial court which would have
given the right to invoke Rule
28 by way of repeat application.
It follows therefore, that when
the High Court granted stay in
favour of the applicant the
interested party who had no
appeal pending at the Court of
Appeal should have appealed
against the order of the High
Court granting the stay of
execution. He could go to the
Court of Appeal by way of repeat
application only if an enactment
allowed him to do so. We have
found no enactment which granted
him that dispensation.
Another point which was also
glossed over was the fact that,
generally, the Court of Appeal
will entertain stay of execution
by way of repeat applications
when the conditions imposed by
the High Court/Circuit Court
appeared to be onerous or
refused by the trial court. It
is clear in this case that the
Court of Appeal, even though
could determine the application
on the merits as if it was a
fresh application, it ought to
have satisfied itself that the
application was not a repeat
application at the instance of
the interested party herein. As
the High Court had stayed
execution unconditionally
without imposing anything on the
applicant, the applicant could
not have filed any repeat
application at the Court of
Appeal based on the SIDI’s case.
We therefore think that by the
settled practice and under Rule
28 of CI 19 of 1997 the
interested party to this
application ought not to have
invoked the Court of Appeal’s
jurisdiction at that stage. The
Court of Appeal Rules, Rule 28
states thus:
“Subject to these Rules and to
any other enactment, where under
any enactment an application may
be made either 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 shall
be entitled to have the
application determined by the
court”
If the Court of Appeal had
examined its jurisdiction
carefully it would have been
clear to the court that the
application was not a repeat
application. It is only when
the record of proceedings has
been transmitted to the Court of
Appeal that it would entertain
in the first instance, a motion
for stay of execution.
The High Court as the court
below in these proceedings did
not refuse the application as
has been pointed out already.
The Court of Appeal in our
respectful opinion was not
seized with jurisdiction under
Rule 28 of its’ rules to
entertain the application under
the circumstances. We therefore
think that as the applicant has
made a case of want of
jurisdiction against the Court
of Appeal, the application
commands merit and same ought to
be granted in the terms prayed.
This court has consistently
exercised its’ supervisory
jurisdiction when it becomes
clear that the Lower Superior
Courts exceeded their
jurisdictions. This case is a
clear case of want of
jurisdiction by the Court of
Appeal.
As the applicant has made a very
strong case on jurisdictional
grounds, it would suffice to
grant the application without
resort to the other grounds.
The application is therefore
granted as prayed.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
CHARLES WILCOX OFORI WITH HIM
NANA AKUA ADUBEA SAKYI FOR THE
APPELLANT/APPLICANT.
KWAMENA AFENYO MARKIN FOR THE
INTERESTED PARTY/RESPONDENT. |
