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R U L I N G
ATUGUBA, J.S.C:
The
Defendant-appellant-applicant
(hereinafter called the
execution debtor) applies to
this court "for the stay of
execution of the order for
delivery of possession of H/No
6C 153/29, East Legon, Mpeasem,
Accra and or suspension of the
enforcement of the said order
for delivery of possession."
It will be seen from the
formulation of this application
that the alternative form of the
order, it is a mere variation of
language; it is aimed at the
same relief, namely, stay of
execution of the order for
delivery of possession of the
house in question.
The salient parts of the
supporting affidavit are as
follows:
"(2) That some time in 1997, one
Amarkai Amarteifio, a lawyer by
profession of Ayawaso Chambers,
Osu, Accra, issued a writ
against the applicant claiming
an amount of £35,000 as
professional fees and financing
assistance rendered to the
applicant who has been outside
the jurisdiction at all material
times.
(3) That pursuant to a judgment
in default of appearance, the
said Amarkai Amarteifio
proceeded to cause a judicial
sale of the applicant's house at
Mpeasem, East Legon, Accra.
(4) That the respondent herein
purportedly acquired the said
property at an auction sale and
proceeded to obtain an order
directed against the applicant,
his personal representatives and
assigns, to deliver vacant
possession of the said property
to him.
(5) That being aggrieved, the
applicant appealed against the
said order for delivery of
vacant possession to the Court
of Appeal. The said appeal was
on 17 July 2008, dismissed with
costs of GH¢2,000. A copy of
the judgment is attached and
exhibited as AS.
(6) That being aggrieved, the
applicant has appealed to this
honourable court as per the
attached notice of appeal
exhibited as AS1.
(12) That an earlier application
to the Court of Appeal was
dismissed on 20 October 2008. A
copy of the order dismissing
same would be exhibited on
receipt.
(13) That even though the
judgment of the Court of Appeal
is not executory in the strict
sense, this honourable court has
the jurisdiction to ensure that
the said order for delivery of
vacant possession is heard in
the appeal, in the interest of
justice."
The relevant rule of this court
on stay of execution is rule 20
of the Supreme Court Rules, 1996
(CI 16). It provides 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. (The
emphasis is ours).
(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."
This rule is not sui generis.
It is a carry over from earlier
rules of the Supreme Court,
namely, rule 27 of the Supreme
Court Rules, 1962 (LI 218). It
has received construction by
this court. In Takyi v
Ghassoub (Ghana) Ltd
[1987-88] 2 GLR 52, SC this rule
was unanimously interpreted as
referring to the execution or
steps leading to the execution
of a judgment. In recent times
there have been dicta in this
court that by reason of article
129(4) of the Constitution and
also the alternative part of
rule 20(1), a stay can be
ordered by this court of
proceedings that do not relate
to execution of the judgment
appealed from.
On reflection, we respectfully
think that is possible but such
proceedings should be in respect
of proceedings that stand to be
taken by reason of the terms of
the judgment appealed from, eg
an order that damages be
assessed, after the court has
reversed a judgment which has
dismissed an action for damages:
see Sewing Machines Ltd v
Wilson [1976] 1 WLR 37,
CA. Therefore a stay of
proceedings having regard to the
language used in rule 20(1) of
the Supreme Court Rules, 1996
(CI 16), cannot relate to
proceedings that only happen to
take place after the judgment
appealed from, but which do not
result from anything required to
be done or not to be done or
necessitated by the judgment
appealed from.
It is otherwise settled that
under rule 20 of CI 16, where no
executable order is involved,
one cannot apply for stay of
execution. It is always
necessary to bear in mind that
rule 20(1) relates to stay of
execution in respect of "the
judgment or decision appealed
against." (Our emphasis).
Therefore if the "judgment or
decision appealed against"
is not executable then the
question of stay of execution
does not simply arise. If "the
judgment or decision appealed
against" merely dismissed an
appeal from a judgment of a
lower court that is executable,
such judgment of the lower court
is not within the purview of
rule 20(1) of CI 16 relating to
execution simply because it is "not
the judgment or decision
appealed against." See in
that regard: Republic v
Duffour; Ex parte Asare
[2007-2008] 1 SCGLR 394.
Is there a tabula in
naufragio under rule 5 of
the Supreme Court Rules, 1996
(CI 16)? That rule provides as
follows:
"5. Matters not expressly
provided for
Where provision is not expressly
made by these Rules regarding
the practice and procedure which
shall apply to a cause or matter
before the Court, the Court
shall prescribe the practice and
procedure that in the opinion of
the Court the justice of the
cause or matter requires."
We should think not. It should
be emphasised that an appeal to
this court is an appeal from the
immediate lower court and its
powers are designed and directed
at the matters that arise from
that court and not otherwise,
except as to consequential
matters. In any case, there is,
indeed, a provision made by the
Supreme Court Rules, 1996
concerning an application for
stay of execution pending
appeal. It is rule 20 aforesaid.
There being no omission as to
that matter, rule 5 is
inapplicable.
In sum, since the judgment
appealed from in this case is
not executable and has not
directed, required or
necessitated any proceedings to
be taken under it, this
application is misconceived and
it therefore dismissed.
Application for stay of
execution pending appeal
dismissed.
W.
A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
I agree
J. ANSAH
( JUSTICE OF THE SUPREME COURT)
I agree
R. C. OWUSU (MS)
( JUSTICE OF THE SUPREME COURT)
I agree
ANIN YEBOAH
( JUSTICE OF THE SUPREME COURT)
I agree
P. BAFFOE-BONNIE
( JUSTICE OF THE
SUPREME COURT)
COUNSEL:
OSAFO BUABENG FOR THE APPLICANT.
WISDOM ANTHONIO FOR THE
RESPONDENT.
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