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I
Practice and
Procedure - Writ of summons -
Chamber registration number -
Certiorari – Stay of execution –
Whether or not as long as there
was no appeal pending against
the court’s decision, an
application for a stay of
execution could not lie -
Whether or not Applicant’s
constitutional rights have been
violated - Whether or not there
were fundamental errors which go
to jurisdiction of the High
Court - Article 129(4) - 1992
Constitution,
HEADNOTES
The applicant
herein caused to be issued from
the High Court in Kumasi a writ
of summons against the
interested parties herein. The
action could not be heard on
merits because the High Court
dismissed the action because the
writ of summons did not disclose
the chamber registration number
of the firm which issued the
writ. It appears the only
executable order made by the
High Court is the costs awarded.
The applicant is complaining
that the interested parties have
taken steps to enforce the order
for costs notwithstanding the
pendency of the application for
certiorari before this court.
The applicant therefore applied
to the High Court for an order
to stay
execution of the order for
costs. However, the High Court
dismissed the application upon a
preliminary objection raised by
the interested parties that as
long as there was no appeal
pending against the court’s
decision, an application for a
stay of execution could not lie.
The court also awarded costs
against the applicant. The
applicant has since filed an
application for certiorari in
this court to quash the said
decisions of the High Court.
Following the High Court’s
refusal to grant the stay of
execution, the applicant filed
an application in this court
seeking an order to restrain the
interested parties herein from
seeking to enforce the order for
costs awarded by the High Court
HELD
The High
Court rules do not confer on the
court any right to make a
restraining order against a
successful party thereby
preventing him from enforcing
the court’s order when there is
no appeal against it. Under the
High Court rules the court has
jurisdiction to assist a
successful party enforce the
court’s orders when there is no
appeal against same. Thus under
Article 129(4) of the
constitution this court is
disabled from granting a
restraining order in the absence
of an appeal since the High
Court lacks such jurisdiction.
It was part of the applicant’s
case that if the order for stay
is not granted the certiorari
application will be rendered
nugatory should it succeed. I do
not think so because the
application for certiorari is
not in respect of the costs,
which was only a consequential
order. The Supreme Court may
decide to set aside the order
dismissing the suit but not
touch the costs at all, But the
point is that the main purpose
of the application for
certiorari is to ensure a
restoration of the writ of
summons which the High Court
dismissed. Therefore the
application would not be
rendered nugatory if the costs
are paid. No reason has been
given why the costs should not
be paid to the interested
parties. I am therefore unable
to grant the application which I
dismiss accordingly.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
High Court
Civil Procedure Rules 1996 C.I
47
CASES
REFERRED TO IN JUDGMENT
Ghana
Football Association v. Apaade
Lodge Ltd. (2009) SCGLR 100.
Edusei (No.
2) v. Attorney-General (1998-99)
SCGLR 753
Merchant Bank
(Ghana) Ltd. v. Similar Ways
Ltd. (2012) 1 SCGLR 440
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BENIN, JSC:-
COUNSEL
DANIYAL ABDUL
KARIM ESQ. FOR THE APPLICANT.
KWASI AFRIFA
ESQ. FOR THE INTERESTED
PARTIES.
__________________________________________________________________
RULING
__________________________________________________________________
BENIN, JSC:-
This is an
application seeking an order
restraining the interested
parties from executing the order
of the High Court pending the
determination of an application
for certiorari brought to the
Supreme Court to quash the
decision of the High Court,
Commercial Division, Kumasi. The
applicant recounted the facts
leading up to the application
for certiorari which is yet to
be heard and determined by this
court.
The applicant herein caused to
be issued from the High Court in
Kumasi a writ of summons against
the interested parties herein.
The action could not be heard on
merits because on 25th
July 2014 the High Court
presided over by Yartey J.
dismissed the action because the
writ of summons did not disclose
the chamber registration number
of the firm which issued the
writ. The court also awarded
costs of GHc4,000.00 against the
applicant. The applicant has
since filed an application for
certiorari in this court to
quash the said decisions of the
High Court.
It appears
the only executable order made
by the High Court is the costs
awarded. The applicant is
complaining that the interested
parties have taken steps to
enforce the order for costs
notwithstanding the pendency of
the application for certiorari
before this court. The applicant
therefore applied to the High
Court for an order to stay
execution of the order for
costs. However, the High Court
dismissed the application upon a
preliminary objection raised by
the interested parties that as
long as there was no appeal
pending against the court’s
decision, an application for a
stay of execution could not lie.
Following the
High Court’s refusal to grant
the stay of execution, the
applicant filed an application
in this court seeking an order
to restrain the interested
parties herein from seeking to
enforce the order for costs
awarded by the High Court.
This appears to be a repeat
application for a stay of
execution though described as an
application to restrain the
interested parties from
enforcing the High Court’s order
for costs. Whatever description
is given to the application, the
object sought is the same: to
stay execution in respect of the
order for costs.
The grounds
for the application may be found
in paragraphs 7 and 8 of the
affidavit in support of the
application. These read thus:
7. That in
order not to render the success
of the application for
certiorari nugatory, we pray for
an order for injunction directed
at the interested parties to
restrain them from carrying on
with any further proceedings
which instigated the pending
certiorari proceedings.
8. That the
Applicant’s application for
certiorari before the Supreme
Court raises serious issues
relating to
violations of the Applicant’s
constitutional rights as
well as allegations of
fundamental errors which go to
jurisdiction of the High Court
and I therefore pray that
the interested parties be
restrained until the
determination of the application
for certiorari.
Arguing the
application, Counsel for the
applicant said they were coming
under
Article 129(4) of the 1992
Constitution, as interpreted
by this court in the case of
Ghana
Football Association v. Apaade
Lodge Ltd. (2009) SCGLR 100.
He also cited the case of
Edusei (No. 2) v.
Attorney-General (1998-99) SCGLR
753and also Merchant Bank
(Ghana) Ltd. v. Similar Ways
Ltd. (2012) 1 SCGLR 440.
Counsel’s view was that though
the Supreme Court rules make no
explicit provision for interim
orders in a matter like
certiorari, yet the court is not
helpless for under its inherent
jurisdiction it could make
appropriate orders to ensure
that justice prevailed.
For his part
counsel for the interested
parties simply argued that since
the applicant did not appeal
against the High Court’s
decisions, an application for a
stay of execution would not lie.
The rules of court make adequate
provisions for a stay of
execution only where there is an
appeal against a lower court’s
decision.
Arguing
further, Counsel for the
applicant said the issue of the
High Court’s jurisdiction was a
serious one so the court should
exercise its discretion in their
favour.
I think the
case of Ghana Football
Association v. Apaade Lodge Ltd.
(supra) which Counsel for the
applicant cited provides an
answer to this application. In
that case the court made it
clear that the Supreme Court had
no jurisdiction to entertain an
application for stay of
execution of a judgment which is
not on an appeal. The court went
on to explain that Article
129(4) of the Constitution would
be invoked only where the
Supreme Court is clothed with
jurisdiction over a matter in
which case it would be clothed
with the powers of the court
from which the appeal was
brought.
The High
Court rules do not confer on the
court any right to make a
restraining order against a
successful party thereby
preventing him from enforcing
the court’s order when there is
no appeal against it. Under the
High Court rules the court has
jurisdiction to assist a
successful party enforce the
court’s orders when there is no
appeal against same. Thus under
Article 129(4) of the
constitution this court is
disabled from granting a
restraining order in the absence
of an appeal since the High
Court lacks such jurisdiction.
It was part
of the applicant’s case that if
the order for stay is not
granted the certiorari
application will be rendered
nugatory should it succeed. I do
not think so because the
application for certiorari is
not in respect of the costs,
which was only a consequential
order. The Supreme Court may
decide to set aside the order
dismissing the suit but not
touch the costs at all, which is
not likely though.
But the
point is that the main purpose
of the application for
certiorari is to ensure a
restoration of the writ of
summons which the High Court
dismissed. Therefore the
application would not be
rendered nugatory if the costs
are paid. No reason has been
given why the costs should not
be paid to the interested
parties. I am therefore unable
to grant the application which I
dismiss accordingly.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME
COURT
COUNSEL
DANIYAL ABDUL
KARIM ESQ. FOR THE APPLICANT.
KWASI AFRIFA
ESQ. FOR THE INTERESTED PARTIES. |
