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R U L I N G
ANIN YEBOAH, JSC:-
The applicant herein is by this
application invoking the
supervisory jurisdiction of this
court to quash an order of the
High Court, commercial Division,
Accra, dated the 30/10/08. The
facts leading to this
application do not appear to be
in controversy and could be
deduced from the exhibits and
the affidavits filed in this
application. The applicant was
a defendant in
suit № BDC 31/07:
GRANADA HOTEL LTD
VS.
DOUBLE CROWN INVESTMENT LTD.
The applicant , by a consent
judgment dated the 30/07/2008
was adjudged to pay to the
interested party (plaintiff) in
the said case an amount of
$1,950,000 together with
interest and cost of
GH¢250,000. In the judgment
after trial to enforce the
judgment, it appears that the
judgment debt and costs were to
be paid by installments with the
usual default clause permitting
the interested party herein (as
the judgment /creditor) to
proceed to levy execution upon
default on the part of the
applicant herein. The applicant
defaulted and when the
interested party commenced
execution processes, the
applicant on the 15/09/2008
filed an application to stay
execution and payment for the
judgment debt by installments.
When the application was argued
before His Lordship Mr. Justice
Kwofie, he on the 26/10/2008
granted the application as
prayed for, in the following
terms;
“BY COURT: The motion on notice
for stay of execution and
payment by installment is
granted as prayed. The
outstanding judgment debt shall
be paid in 2 installments as
proposed in the affidavit in
support subject to the usual
default clause. The attachment
of the property is therefore
stayed forthwith.”
From the record before this
court, Justice Kwofie who
granted the application for stay
of execution and payment by
installments sat on the matter
as a vacation judge. The
interested party thought that
there was an ambiguity in the
order as regard the default
clause which ought to be
clarified. They filed a motion
for review which was fixed for
hearing on 17/10/2008. When the
motion was listed, Mr. Justice
Kwofie had proceeded on leave so
it was placed before Mr. Justice
Tanko Amadu. The learned judge
had some misgivings about the
propriety of the application and
made this formal order:
“BY COURT: the court is unable
to entertain the application by
reason of the provisions of
Order 42 Rule 4 of the Rules of
Court. Counsel may withdraw the
application and come by way of
variation. The application for
review is struck out as having
been withdrawn .No order as to
cost”
Taking a cue from the learned
judge, the interested party
filed an application for
variation of the order make by
Mr.Justice Kwofie on the
15/09/08. The application was
placed before Tanko Amadu J. as
according to the interested
party Mr. Justice Kwofie was
still on leave. The application
was stoutly opposed by the
applicants herein by an
affidavit sworn to by one Vivien
Lamptey. The learned judge
Amadu Tanko J. granted the
application to vary the order to
pay the judgment debt by
installments made by his learned
brother Kwofie J on the
15/09/2008. The precise order
made by the learned judge
varying the order on the
30/10/2008 was not attached to
the processes filed. The formal
order drawn by the registry is
however, annexed to the
applicants’ affidavit as exhibit
“VL5” which clearly varied the
previous order made on the
15/09/2008.
The applicants who felt
aggrieved by the variation order
has moved this court to invoke
its supervisory jurisdiction to
quash this order of variation
dated the 30/10/2008. On behalf
of the applicants, learned
counsel has argued that Justice
Amadu had no jurisdiction to
vary the order made by his
learned brother Kwofie J, and
that the order of variation was
made without jurisdiction and
therefore null and void.
It must be pointed out that at
the time Justice Tanko dealt
with the matter, his learned
brother had proceeded on leave.
The learned judge was therefore
right in pointing out that he
was incapacitated by virtue of
Order 42 Rule 4 of the High
Court [Civil Procedure] Rules
2004 C.I 47 from entertaining
any application for review of
the order made by Kwofie J. who
was on leave for a period of
less than three months. Having
rightly declined to entertain
the application for review, the
question is; was the order of
variation made without
jurisdiction?
Learned counsel for the
applicant has cited the cases of
RE GM HOLDINGS LTD [1941] 3
ALLER 417 and the local case of
GHANA NATIONAL TRADING
CORPORATION VRS BAIDEN [1987-88]
2GLR 163 CA to demonstrate that
there was lack of jurisdiction
on the part of the judge to
entertain the application for
variation brought by the
interested party. In examining
the first case of RE GM
HOLDINGS, supra, Justice Bennet
had made an order staying
execution and ordering the
respondent in the case to pay a
certain amount of money with
interest to the applicant
together with costs. An
application for stay of
execution pending an appeal was
brought and the order was made
to the effect that if security
of the sum of £3000 is paid into
court within one week there
shall be a stay of execution of
the judgment. The issue was
whether the judge was functus
officio on hearing the
application for the security
after the order for stay of
execution had already been made
and entered. This was what the
learned judge said at page 418:
“I think that it would be a
strange position if a judge were
at liberty to reconsider his
decision and grant a stay of
execution after he had made an
order refusing it. I think
that, when a judge has made an
order such as that in the
present case, the only remedy
for the respondent, if he is
dissatisfied with the order is
to go to the Court of Appeal,
which in this case he did not
do”
Even though the above
proposition of the law is
correct, this present case under
consideration could be
distinguished from the above
case. In this case, there was
no appeal lodged against the
consent judgment entered by the
High Court. The application for
stay of execution and payment by
installment was not filed
pursuant to any pending appeal
as it was in the above case. To
me, I think the applicant who
probably faced financial
problems and could not settle
judgment debt as agreed upon
wanted time to settle the debt
and filed the application.
In the application for the order
which is under attack, the
interested parties as judgment
/creditors complained of the
order being contradictory. In
paragraph 18 of the affidavit in
support of the application the
deponent stated as follows:
“18: That in the
circumstances, I pray for a
variation of the court order
sated the 26/9/2005 for clarity
and avoid ambiguity that
i.
Payment of $975,000.00 on or
before the 15/09/2008.
ii.
Payment of $975.000.00 on or
before 15/11/2008
iii.
In default of any payment of the
judgment debt and cost of
plaintiff will be at liberty to
take possession of the property
, the subject matter m without
resort to court”
It should be noted that the
judge, Tanko Amadu J did not
in my view vary the previous
order of Kwofie J. The first
two orders (i) and (ii) were
affirmed and were substantially
the same as the orders
previously made. Indeed nothing
turns on the difference. The
third order sought was refused
as Exhibit VL5 shows. The judge
refused to permit the interested
party to levy execution without
resort to leave of the court.
The prayer to retake possession
of the property was also
refused. The variation of the
orders complained of by the
applicant in this application
which would have amounted to
lack of jurisdiction does not
arise. In my opinion, the
interested party rather ought to
have complained by resort to any
known legal processes.
The case of GHANA NATIONAL
TRADING CORPORATION supra which
learned counsel hearing relied
on does not advance his case in
anyway. In that case an
interlocutory judgment had been
entered for the plaintiff in a
case of wrongful dismissal. It
was left for assessment of his
entitlements but the defendant
lodged an interlocutory appeal.
After the filing of the appeal
and application for stay of
execution was filed, the trial
judge however had proceeded to
compute the entitlement
subsequent to the judgment which
had being appealed against. The
Court of Appeal was of the
opinion that the learned judge
had no jurisdiction to proceed
to make those findings that has
arisen until the interlocutory
appeal had been determined by
the Court of Appeal.
This case under consideration
involved no appeal from the High
Court. There was as said
earlier no application for stay
of execution pursuant to any
appeal filed.
In my opinion, if the applicant
as judgment debtor could go to
court, as it is done in such
cases, to pray for more
favourable terms upon default,
by parity of reasoning, the
judgment /creditor who is faced
with an order which he claims to
be ambiguous can resort to the
court for clarification or
variation,. I think the nature
of the order made by the judge
in such applications would
determine whether he took a step
to vary the order previously
made by his predecessor or
himself as a trial judge.
It follows therefore that the
wrongful assumption of
jurisdiction made against
Justice Tanko Amadu has not been
made out to warrant the
intervention of this court by
resort to its supervisory
jurisdiction. The application
fails and should be dismissed.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree
G. T. WOOD (MRS)
( CHIEF JUSTICE)
I agree
S. A. BROBBEY
( JUSTICE OF THE SUPREME COURT)
I agree
J. V. M. DOTSE
( JUSTICE OF THE SUPREME COURT)
I agree
P. BAFFOE-BONNIE
( JUSTICE OF THE SUPREME COURT)
COUNSEL:
CHARLES HAYIBOR FOR THE
APPLICANT .
S. H. ANNANCY FOR THE INTERESTED
PARTY
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