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Review - Order of
Injunction - Setting
aside the order - Stay of
proceedings -Jurisdiction of
the High Court. - Whether or not
the Judge sitting as a
vacation Judge wrongly assumed
jurisdiction - Whether or not
the pendency of an application
to stay proceedings is a bar to
the hearing of the case or any
other application in the case -
HEADNOTES
The High
Court (Commercial Division) in
Tamale presided over by Noble
Nkrumah J. heard and granted an
application for an order of
interlocutory injunction on 29th
April 2014 in case number
E1/8/2014 titled DAKPEM
ZOBOGUNAA HENRY A. KALEEM v. 1.
LANDS COMMISSION
2.ATTORNEY-GENERAL 3 DAKPEMA NAA
ALHASSAN MOHAMMED DAWUNI. Whilst
Noble Nkrumah J. who made that
order was temporarily out of the
jurisdiction, another High Court
Judge namely Ayisi Addo J. heard
an application for review of the
earlier order and granted same
on 29th September
2014. The application that was
brought before the High Court
to seek review was dated 12th
September 2014 and it was served
on Counsel for the respondent
therein, who is the applicant
herein, the same day.
HELD :-
As stated
earlier the bare fact that an
application for stay of
proceedings has been filed does
not operate as an automatic
stay, so no party has the
priviledge to stay away from the
proceedings, as the applicant
did at the court below. This
ground also fails.Consequently
we find no merit in the
application and dismiss same
accordingly.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules, (2004) C.I. 47
Courts Act, 1993 (Act 459)
1992 Constitution
CASES REFERRED TO IN JUDGMENT
MORNAH v.
ATTORNEY-GENERAL (2013) SCGLR
(Special Edition) 502
SAFEWAY PLC v. TATE
(2001) TLR 64;
MALGAR LTD. V. R.
E. LEACH ENGINEERING LTD. (2000)
TLR 109 Ch. D;
REPUBLIC v. HIGH
COURT, KUMASI; EX PARTE
ABUBAKARI (No. 1) (1998-99)
SCGLR 84
AMPONSAH v.
MINISTER OF DEFENCE (1960) GLR
138, CA
REPUBLIC v. HIGH
COURT (COMMERCIAL DIVISION)
ACCRA; EX PARTE DOUBLE CROWN
INVESTMENT LTD. (GRANADA HOTEL
LTD INTERESTED PARTY) (2009)
SCGLR 520;
SUMANI MUNJI v.
ALHASSAN ADAMU IDDRISSU and 2
Others Civil Appeal no.
J4/20/2012 dated 24th
May 2013MULLINS v. HOWELL (1879)
11 Ch. D. 763
IN RE BLENHEIM
LEISURE (RESTAURANTS) LTD. (No.
3), The Times, 9 November 1999
IN RE L AND ANOTHER
(CHILDREN) (PRELIMINARY FINDING:
POWER TO REVERSE)(2013) TLR 22
RE WICKHAM, MARONY
v. TAYLOR (1887) 35 Ch. D 272,
CA;
BLAIR v. CORDNER
(No. 2)(1887) 36 WR 64;
DAVEY v. BENTICK
(1893) 1 Q.B 185, CA
BOOKS REFERRED TO IN JUDGMENT
Halsbury’s Laws of
England, 5th edition,
paragraph 533
DELIVERING THE LEADING JUDGMENT
BENIN,
JSC:-
COUNSEL
MUSAH MOHAMMED ESQ. FOR THE APPLICANT.
NO
APPEARANCE FOR THE INTERESTED
PARTY.
RULING
BENIN, JSC:-
The High
Court (Commercial Division) in
Tamale presided over by Noble
Nkrumah J. heard and granted an
application for an order of
interlocutory injunction on 29th
April 2014 in case number
E1/8/2014 titled DAKPEM
ZOBOGUNAA HENRY A. KALEEM v. 1.
LANDS COMMISSION
2.ATTORNEY-GENERAL 3 DAKPEMA NAA
ALHASSAN MOHAMMED DAWUNI. Whilst
Noble Nkrumah J. who made that
order was temporarily out of the
jurisdiction, another High Court
Judge namely Ayisi Addo J. heard
an application for review of the
earlier order and granted same
on 29th September
2014.
The
application that was brought
before the High Court to seek
review was dated 12th
September 2014 and it was served
on Counsel for the respondent
therein, who is the applicant
herein, the same day. The motion
on notice read:
MOTION ON NOTICE FOR REVIEW OF
AN ORDER OF INTERIM INJUNCTION
PLEASE TAKE NOTICE that the
Honourable Court will be moved
by Mohammed Alhassan Esq. on
behalf of the Applicant herein
praying this Honourable Court
for an order reviewing an order
of interim injunction
restraining Applicant in
relation to the
Plaintiff/Respondent’s writ
issued on 24/2/2014……….upon the
grounds as contained in the
supporting affidavit.
In the
affidavit in support the
deponent recounted the facts
from the issuance of the writ to
the grant of the application for
interlocutory injunction. He
then recounted the change in
circumstances since the grant of
the order of injunction which
were causing hardships and
injustice to them and this in
their view justified them in
coming back to the court for a
review of the order. The
respondent, now applicant, did
not file any affidavit in
answer; he rather filed an
application to stay proceedings
the return date of which
post-dated the hearing of the
application for review.
The High
Court presided over by Ayisi
Addo J. granted the application
for review in these words: “…..I
hereby do order that the
injunction order granted against
the 3rd defendant and
his agents is hereby reviewed
and vacated forthwith.”
The
applicant herein by this
application is invoking this
court’s supervisory jurisdiction
to quash and vacate the above
order. The reliefs sought are
these:
a.
That His Lordship G. Ayisi
Addo J. sitting as a vacation
Judge in the High Court
(Commercial Division A) Tamale
on 29th September
2014 wrongly assumed
jurisdiction under rule 42 of
the High Court (Civil Procedure)
Rules, (2004) C.I. 47 when he
reviewed and vacated the order
of interlocutory injunction
dated 29th April 2014
granted by the regular High
Court Judge, Jerome Noble
Nkrumah J. when the said order
is/was not void or plain
nullity.
b.
That His Lordship Justice Ayisi
Addo, sitting in the High Court
(Commercial Division A)
committed a fundamental error of
law apparent on the face of the
record when he heard and granted
an application for review
against the plaintiff/applicant
herein when there is/was a
pending motion for stay thereby
denying the plaintiff/applicant
an opportunity to be heard on
his motion.
Order 42
of the High Court (Civil
Procedure) Rules, 2004 C.I. 47
provides in part that:
1(1) A
person who is aggrieved
(a)
by a judgment or order from
which an appeal is allowed, but
from which no appeal has been
preferred, or
(b)
by a judgment or order from
which no appeal is allowed,
may upon
the discovery of new and
important matter or evidence
which, after the exercise of due
diligence, was not within that
person’s knowledge or could not
be produced by that person at
the time when the judgment was
given or the order made, or on
account of some mistake or error
apparent on the face of the
record, or for any other
sufficient reason, apply for a
review of the judgment or order.
(2) A
party who is not appealing
against a judgment or order may
apply for a review of that
judgment or order
notwithstanding the pendency of
an appeal by any other party,
except where the ground of the
appeal is common to the
applicant and the appellant, or
where, being the respondent, he
can present to the Court of
Appeal the case on which he
applies for the review.
The rule
just quoted seems at first blush
to grant the right of review to
a party in litigation before the
High Court. When the application
came before the court for
hearing, the Court asked Counsel
to address us under what
enactment the right of review is
granted to the High Court.
Counsel was given time to file a
supplementary statement of case
in order to address the question
raised by the court since it
went to the root of
jurisdiction. The court was
concerned that the High Court
has been exercising the review
jurisdiction since the coming
into force of the 1992
Constitution and the passage of
the new Courts Act, 1993 (Act
459) but it appears none of
these grants the High Court the
right or power to review its own
decisions, hence the invitation
to Counsel to address us on the
question.
Counsel
filed the supplementary
statement of case on 12th
March 2015. We are appreciative
of the effort by counsel for the
applicant for his assistance in
this regard. Counsel made
reference to Article 140 of the
1992 Constitution which sets out
the jurisdiction of the High
Court. He went on to cite
section 15 of Act 459 which
literally reiterates the High
Court’s jurisdiction as stated
in article 140 of the
Constitution. Counsel then
stated that “certainly there is
no provision in the Constitution
and the Courts Act which vests
the High Court with the
jurisdiction to review its
decisions, orders and judgments.
There is no substantive law
which vests the review
jurisdiction in the High Court”.
Counsel also cited Article
157(2) of the 1992 Constitution
which empowers the Rules of
Court Committee to regulate the
practice and procedure before
the courts in the country and
said this provision does not
empower the Committee to grant
or alter substantive rights.
Article
140 sets out the general
jurisdiction of the High Court
and it provides:
(1)
The High Court shall, subject to
the provisions of this
Constitution, have jurisdiction
in all matters and in
particular, in civil and
criminal matters and such
original, appellate and other
jurisdiction as may be conferred
on it by this Constitution or
any other law.
(2)
The High Court shall have
jurisdiction to enforce the
Fundamental Human Rights and
Freedoms guaranteed by this
Constitution.
(3)
The High Court shall have no
power, in a trial for the
offence of high treason or
treason, to convict any person
for any offence other than high
treason or treason.
(4)
A Justice of the High Court may,
in accordance with rules of
court, exercise in court or in
chambers, all or any of the
jurisdictions vested in the High
Court by this Constitution or
any other law.
(5)
For the purposes of hearing and
determining an appeal within its
jurisdiction and the amendment,
execution or the enforcement of
a judgment or order made on any
appeal, and for the purposes of
any other authority, expressly
or by necessary implication
given to the High Court by this
Constitution or any other law,
the High Court shall have all
the powers, authority and
jurisdiction vested in the Court
from which the appeal is
brought.
Article
141 grants the High Court
supervisory jurisdiction in
these terms:
The High
Court shall have supervisory
jurisdiction over all lower
courts and any lower
adjudicating authority, and may,
in the exercise of that
jurisdiction, issue orders and
directions for the purpose of
enforcing or securing the
enforcement of its supervisory
powers.
From even
a cursory reading of Article
140(1) and (4) it is clear that
the jurisdiction of the High
Court is conferred upon it only
by the Constitution or any other
law, which is meant a law duly
enacted by Parliament, as
distinct from the rules of
practice and procedure enacted
by the Rules of Court Committee.
By a combined reading of
Articles 140(2) and 157(2) of
the Constitution, the Rules of
Court Committee is required to
formulate rules to guide the
High Court, among other courts,
in the exercise of its
jurisdiction conferred by the
Constitution or an Act of
Parliament. Article 157(2)
provides that:
The Rules
of Court Committee shall, by
constitutional instrument, make
rules and regulations for
regulating the practice and
procedure of all courts in
Ghana.
Since the
coming into force of the 1992
Constitution, Parliament has
passed some substantive laws
granting different types of
jurisdiction to various courts
in the country. For our present
purposes we will recall sections
15 to 21 of Act 459 setting out
different types of jurisdiction
that the High Court could
exercise. Sections 15 and 16 do
reiterate Articles 140 and 141
of the Constitution
respectively. Sections 17 to 20
of Act 459 have granted
jurisdiction to the High Court
over piracy matters, infants,
persons of unsound mind and
maritime matters respectively.
And section 21 deals with the
High Court’s jurisdiction in
appeals from the lower courts.
It is
clear that in neither the
Constitution nor Act 459 and
subsequent amendments thereto
namely Act 464, Act 620 and Act
674 was the High Court granted
the review jurisdiction. There
have been numerous authorities,
both local and foreign, which
have decided that jurisdiction
of a court could only be granted
by substantive legislation, and
not by a body charged with the
duty to make rules to regulate
the conduct of cases before the
courts. See these cases:
MORNAH v. ATTORNEY-GENERAL
(2013) SCGLR (Special Edition)
502; SAFEWAY PLC v. TATE (2001)
TLR 64; MALGAR LTD. V. R. E.
LEACH ENGINEERING LTD. (2000)
TLR 109 Ch. D; REPUBLIC v. HIGH
COURT, KUMASI; EX PARTE
ABUBAKARI (No. 1) (1998-99)
SCGLR 84 at page 90b, citing
AMPONSAH v. MINISTER OF DEFENCE
(1960) GLR 138, CA.
We are
mindful that even this court has
decided some cases applying some
of the provisions under rule 42
of C.I 47 without questioning
the review jurisdiction of the
High Court. But it could be seen
from those decisions that the
issue was not raised. See cases
like REPUBLIC v. HIGH COURT
(COMMERCIAL DIVISION) ACCRA; EX
PARTE DOUBLE CROWN INVESTMENT
LTD. (GRANADA HOTEL LTD
INTERESTED PARTY) (2009) SCGLR
520; SUMANI MUNJI v. ALHASSAN
ADAMU IDDRISSU and 2 Others
Civil Appeal no. J4/20/2012
dated 24th May 2013,
unreported. Whatever the
arguments may be on merits, we
are tempted not to delve into
this question in this decision,
for whatever we say will be
obiter only and will not create
a judicial precedent. It should
be reserved for future
proceedings in which it becomes
an issue whereupon the court
will have the benefit of full
arguments from both sides.
Besides we have come to this
decision because upon a critical
examination of the application
before the High Court, we have
come to the conclusion that what
was before the court was not for
review per se but just an
application to vary the court’s
earlier order of interlocutory
injunction due to change in
circumstances since the earlier
order was made. The inherent
jurisdiction to vary its interim
or interlocutory orders is
vested in every court during the
pendency of the substantive
case. It can do so in order to
make the meaning and intention
clear; it may also do so if the
circumstances that led to the
order being made have since
changed and is having a negative
effect; or if it is working
unexpected or unintended
hardship or injustice. The only
limitation is that the order
must not be the subject of a
pending appeal.
The
relevant parts of the affidavit
in support of the application
read thus:
9. At the
time the injunction order was
obtained I was of the view that
the matter was for mediation by
the overlord of Dagbon and could
come to an amicable resolution
within a short time.
11. Since
the grant of the injunction
order, the plaintiff/respondent
has not taken any step to fast
track the hearing of the matter.
Plaintiff/respondent was
satisfied with the injunction
order he obtained and sat back
while the investors and I are
reeling under the dire economic
realities.
13. In
recent times we have experienced
increasing prices of building
materials…..which is going to
affect the budget and plans of
investors, developers and
myself.
14. At
the time of the injunction
order, the cost of a bag of
cement in Tamale was GH¢20.00,it
is now between GH¢35.00 and
GH¢38.00. The dollar was GH¢2.00
now it is GH¢3.00. This
certainly will put us to extra
expenses thus increasing the
cost of our respective projects.
15. The
question is: who bears the extra
cost? In fairness it should be
the plaintiff/respondent if he
loses the case.
16. If
the plaintiff/respondent loses
the case, the extra cost would
be huge and he will not be able
to pay and the court would have
been used to inflict hardship on
me and the developers and
investors.
17. In
the light of the foregoing it
has become necessary for me to
apply to have the interim
injunction order reviewed to
either vacate the order or make
it conditional requiring
plaintiff/respondent to deposit
into court substantial amount of
money to compensate the
investors, developers and myself
in the event of the
plaintiff/respondent losing the
substantive matter.
20………….the review would ensure
that justice is done to protect
the interest of all those
targeted by the order of
injunction.
It is our
view that the court was called
upon to consider the changed
circumstances since the order
was made and the hardship that
they had brought upon the
applicant therein and his
assigns. The court was also to
take into consideration the fact
that the Applicant herein was
not in a position to repair the
harm by way of expenses that
would have been incurred if the
case were to go against him.
Thus the court was to either
vary the order by imposing
conditions or to set it aside
altogether in view of the
changed circumstances that had
caused hardship to them. The
applicant was alleged to have
gone to sleep since the order
was made and was said to be in
such a financial situation that
would not enable him to pay
damages should he lose the case.
These facts called for a
response from the applicant
herein but he chose not to
react. The import of his failure
to respond was that the
allegations were correct. The
court was therefore justified in
setting aside the order of
injunction. The vacation judge
had every right to deal with the
application notwithstanding that
it was made by another judge. It
was wrongly assumed that this
was a review application hence
the reliance on rule 42(4) of CI
47, but it was not. It was an
application to vary an order
made in ongoing proceedings so
every competent judge who
presided over the case could
exercise the court’s inherent
jurisdiction to vary it even to
the extent of vacating the
order. It is a discretion that
is vested in the court as
distinct from a judge as an
individual person, thus it
cannot be personal to only the
judge who made the order to be
the one to vary it. We note that
there is a very thin line
between the power to vary an
order which the court exercises
under its inherent jurisdiction
and the power of review which is
conferred by an enactment.
Interim orders made by the court
are temporary and can thus be
revisited by the court as the
circumstances and justice of the
moment dictate. Sometimes the
court can act on its own motion
if need be especially in cases
involving infants or wholly or
partially illegal and void
decision or order.
In the
English case of MULLINS v.
HOWELL (1879) 11 Ch. D. 763,
the court made an interlocutory
order by the consent of the two
parties. Subsequently one of
them applied to the court to
vary its terms because he had
discovered that one of the terms
was included by mistake. The
court decided that even in a
case like this where the order
was made by consent it was
possible to vary it whilst the
substantive case was still
pending before the court.Per
Jessel M.R. at page 766:
“I have
no doubt that the Court has
jurisdiction to discharge an
order made on motion by
consent………….the court having a
sort of general control over
orders made on interlocutory
applications……………the court has
jurisdiction over its own
orders, and there is a larger
discretion as to orders made on
interlocutory applications than
as to those which are final
judgments.”
In the
case of IN RE BLENHEIM
LEISURE (RESTAURANTS) LTD. (No.
3), The Times, 9 November 1999,
the court gave several examples
of cases where it might be just
to revisit the earlier decision,
including mistake, failure to
advert to certain facts and so
on and so forth. The Supreme
Court of England took an extreme
position in the case of IN RE
L AND ANOTHER (CHILDREN)
(PRELIMINARY FINDING: POWER TO
REVERSE)(2013) TLR 22 that a
judge could even reverse his
decision for good reason where
no party’s position has been
altered since the delivery,
especially when the order has
not been drawn up. All these
cases go to confirm the control
a court has over its decision
which is not on appeal and
particularly when it is not the
final decision of the court.
The High
Court presided over by Ayisi
Addo J. was therefore justified
in hearing the application, for
the court has wide
discretionary powers to deal
with interim or interlocutory
orders during the pendency of a
case before it. The first ground
is accordingly rejected.
The
second ground for this
application is that the court
below was bereft of jurisdiction
to hear the application when
there was another application
for a stay of proceedings
pending before the court as at
the date it heard the
application and that the Judge
was made aware of the pendency
of that application. Thus the
question to be answered is this:
is the pendency of an
application to stay proceedings
a bar to the hearing of the case
or any other application in the
case? Before discussing this
question let us deal with an
aspect of this ground which
counsel addressed on. Counsel
for the applicant stated that
the applicant was denied a
hearing in respect of the
review application because of
the court’s failure to hear this
application for a stay of
proceedings. We do state that
being separate applications,
whatever answer the respondent
(the applicant herein) had in
respect of the other application
should have been raised therein.
If he failed to do that he could
not complain that he was denied
a hearing. What the applicant
did amounted to selecting his
own procedure and placing
premium on his own application
over the one filed by his
opponent which was earlier in
time. He has no right in law or
under the rules to do that. He
ought to have filed a response
by way of an affidavit to the
earlier application to address
especially those matters of fact
raised therein against him. Then
he ought to have appeared at the
hearing of the earlier
application and pleaded with the
Judge to postpone that
application to await a
determination of his own
application to stay proceedings.
The judge might accede to his
request depending on the sort of
arguments he would put across.
But having elected not to answer
the factual allegations against
him and having opted to stay out
of that hearing, the court had
no option but to proceed, and
counsel’s absence could even be
interpreted as a mark of
disrespect to the court. The
applicant cannot rely on this in
the second ground for this
application much as we
appreciate that the
determination of the first
application had undermined the
purpose of his own application
and rendered same otiose. But in
court if you have a good cause
you must follow appropriate
procedures to have same
vindicated, you do not just file
an application and abstain from
court with a view to compelling
the court to postpone the
hearing to await the date your
own application has been slated
for hearing. That is clearly not
permissible in our legal
dispensation. We accordingly
reject this submission.
The
applicant’s prayer to the court
below was to stay the hearing of
the earlier application pending
the return to the jurisdiction
of Noble Nkrumah J. or in the
alternative for the court to
refer the matter to the Chief
Justice for appropriate
directions. The return date was
fixed for 14 October 2014.
Meanwhile the first application
had been served on the applicant
herein on 12 September 2014, but
he waited until 26 September
2014 before filing his
application to stay proceedings,
three days before the return
date of the earlier application.
Readily one could see that the
intention of the applicant was
to prevent Ayisi Addo J. from
hearing the earlier application.
It is not uncommon that
litigants, sometimes with the
aid of legal practitioners, try
to choose which Judge should
hear their cases; this is not a
commendable practice.
On the
question posed above we must
point out that unless restrained
or prevented by any law or rule
of practice, a High Court judge
cannot be denied the right to
hear the case or any application
in the proceedings the way and
manner he deems fit. The fact
that an application for stay of
proceedings was pending did not
operate to stay proceedings,
unless the court so directs in
the interim or unless the court
has heard and granted same. The
High Court rules do not make
specific provision for a stay of
proceedings, so any such
application can only be made
under rule 19 thereof as the
court has an inherent
jurisdiction to stay proceedings
for a variety of reasons, for
instance to encourage a
settlement. But even where
specific provision is made in
the rules, it will still not
deny the court of its inherent
jurisdiction to stay proceedings
in various circumstances, for as
stated by the authors of
Halsbury’s Laws of England, 5th
edition, paragraph 533 at page
422 ‘…..the two sources of the
court’s power continue to exist
side by side and may be invoked
cumulatively or alternatively’.
See these cases: RE WICKHAM,
MARONY v. TAYLOR (1887) 35 Ch. D
272, CA; BLAIR v. CORDNER (No.
2)(1887) 36 WR 64; DAVEY v.
BENTICK (1893) 1 Q.B 185, CA.
As stated earlier the bare fact
that an application for stay of
proceedings has been filed does
not operate as an automatic
stay, so no party has the
priviledge to stay away from the
proceedings, as the applicant
did at the court below. This
ground also fails.
Consequently we find no merit in
the application and dismiss same
accordingly.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) N. S.
GBADEGBE
JUSTICE
OF THE SUPREME COURT
(SGD) V. AKOTO
BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
MUSAH MOHAMMED ESQ. FOR THE
APPLICANT.
NO
APPEARANCE FOR THE INTERESTED
PARTY.
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