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Divorce - Matrimonial cause -
Interim Relief Pending
Determination of Substantive
matter - Stay of Execution -
Article 22(3) of the
Constitution 1992
HEADNOTES
There is pending between the
parties herein a
Divorce
and Matrimonial cause before
the High Court, Accra. That
Petition is at the instance of
the Respondent herein. Whilst
that petition was pending,
learned Counsel for the
Appellant, at the instance of
the Appellant filed an
Application on Notice that
the Respondent/Applicant
herein praying this Honorable
court for an order ejecting the
Petitioner from Plot No. 125,
Okyeame Street, New Ogbojo,
Accra being the matrimonial
home of the parties herein and a
further order restraining the
Petitioner from entering or
going anywhere near the
matrimonial home or the person
of the Respondent/Applicant,
upon the grounds deposed to in
the accompanying Affidavit and
or any further orders (s) as
this Honourable Court may deem
fit. That despite the fact that
the Respondent has moved out of
the matrimonial home, Respondent
continues to engage in acts
intended to cause fear,
insecurity and anxiety in the
matrimonial home and to
ultimately make the matrimonial
home uninhabitable. On
the 8th day of
February 2019, presiding judge
at the Divorce and Matrimonial
Division of the High Court,
dismissed the cases, As the
Respondent herein felt aggrieved
by the decision of the High
Court dated 8th
February 2019 and referred to
supra, he caused an appeal to be
filed against the said decision
to the Court of Appeal. On the 3rd
day of December 2019, the Court
of Appeal in a unanimous
decision allowed the repeat
application for Stay of
Execution of the orders of the
High Court, The Appellant,
feeling aggrieved by the
decision of the Court of Appeal
has come to this court.
HELD
Having taken all the above
factors into consideration,
especially the explosive nature
of the relationship between the
parties herein, which has found
expression in the narratives in
Statement of the facts, it is
considered worthwhile, prudent
and reasonable not to disturb
the decision of the Court of
Appeal.
We have already
referred to in extenso details
of the depositions in the
affidavits of the parties
herein, especially those of the
Appellant. We have been left in
no doubt, that in order to
ensure that peace reigns between
the parties pending the
resolution of the substantive
Petition, care must be taken to
prevent the path of the parties
from crossing.
A Court of law, must
always ensure that its decisions
do not lead to a breach of the
peace and where red flags are
raised and it is impossible to
ignore those flags, prevention
is definitely better than cure
or regret. It is therefore our
considered opinion that, the
level of mistrust, hostilities
and loss of understanding
between the parties is such that
the alternative use of the Ada
property which is what the
Appellant asked for and was
granted by the learned trial
Judge is a recipe for chaos,
disaster and calamity. Even
though we are not doomsday
prophets, we have experience
enough in such matters and we
think a stich in time saves
nine.
In this respect, we
deem it also prudent to sound a
note of caution that, this being
an interlocutory appeal which
has no bearing on the
determination of the substantive
petition, the parties are to
remain civil to each other
pending the determination of the
petition.
Under the
circumstances, the appeal herein
filed by the Appellant against
the decision of the Court of
Appeal dated the 3rd
day of December 2019 fails and
is accordingly dismissed.
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Court of Appeal Rules 1997 (C.I.
19)
CASES REFERRED TO IN JUDGMENT
Arthur v Arthur [2013-2014] 1
SCGLR 543.
Ogyeadom Obranu Kwesi Atta VI v
Ghana Telecommunications Co.
Limited Civil Appeal No.
J8/131/2019, dated 28th
April 2020
N. B. Landmark Ltd. v Lakiani
[2001-2002] SCGLR 318
Appiah v Pastor Laryea Adjei
[2007-2008] SCGLR 863
N.D.K Financial Services v
Yiadom Construction and
Electrical Works and Others
[2007-2008] SCGLR 93
Merchant Bank Ghana Limited v
Similar Ways [2012] 1 SCGLR 440
Standard Chartered Bank Ghana
Limited v Western Hardwood
[2009] SCGLR 196
Golden Beach Hotels Ghana
Limited v Pack Plus
International Limited [2012]
SCGLR 452
A.D.M Cocoa Ghana Limited v
International Loan Development
Limited Civil Motion No.
J8/47/2015 dated 7th
May 2015 unreported.
Republic v Court of Appeal
Accra, Ex-parte Ghana Cable Ltd,
Barclays Bank Ghana Limited-
Interested Party [2005-2006]
SCGLR 107
Ghana Commercial Bank (No.1) v
Bulkship & Trade Limited (No 1)
2015-2016 SCGLR 748
Nii Kojo Danso II v The
Executive Secretary, Lands
Commission, The Executive
Secretary, Land Valuation Board,
The Attorney-General and Joshua
Attoh Quarshie [2018] DLSC 4135
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE, JSC:-
COUNSEL
O.K OSAFO BUABENG ESQ FOR
PETITIONER/APPELLANT/RESPONDENT
WITH HIM, AGYENIM-AGYEI BOATENG
ESQ.
VICTORIA BARTH ESQ FOR
RESPONDENT/RESPONDENT/APPELLANT
DOTSE, JSC:-
This is an appeal by the
Respondent/Respondent/Appellant,
hereafter referred to as the
Appellant against the decision
of the Court of Appeal dated the
3rd day of December,
2019 which decision actually
upheld an appeal lodged by the
Petitioner/Appellant/Respondent,
hereafter referred to as the
Respondent against the decision
of the High Court, Accra dated 8th
February 2019.
PROLOGUE
There is pending between the
parties herein a Divorce and
Matrimonial cause before the
High Court, Accra. That Petition
is at the instance of the
Respondent herein. Whilst that
petition was pending, learned
Counsel for the Appellant, at
the instance of the Appellant
filed an Application on Notice
headed as follows:-
“Motion on Notice for
Interim
Relief Pending Determination of
Substantive Matrimonial
Cause.”
In view of the antecedents of
the matters raised in the record
of appeal and in the many
depositions contained in the
affidavits either in support or
in opposition filed by the
parties, it is has been
considered worthwhile to set out
in detail the facts upon which
this Appeal, has been premised.
Even though on the surface, the
issues to be decided in the
appeal are in a narrow compass,
the surrounding facts germane to
an effective resolution of the
case have to be set out in a
general context.
FACTS OF THE APPEAL
It is therefore worthwhile to
set out in detail the
Application for “Interim
Relief Pending Determination of
Substantive Matrimonial Cause”
filed by the Appellant and
referred to supra as follows:-
“TAKE NOTICE
that this Honourable Court will
be moved by Victoria Barth,
Counsel for and on behalf of
the
Respondent/Applicant herein
praying this Honorable court for
an order ejecting the
Petitioner from Plot No. 125,
Okyeame Street, New Ogbojo,
Accra being the matrimonial
home of the parties herein and a
further order restraining the
Petitioner from entering or
going anywhere near the
matrimonial home or the person
of the Respondent/Applicant,
upon the grounds deposed to in
the accompanying Affidavit and
or any further orders (s) as
this Honourable Court may deem
fit.”
In order to understand the
extent of the strained relations
between the parties, it is also
necessary to quote in extenso
the following depositions
contained in paragraphs 51,
52, 55 and 56 of the
affidavit of the Appellant in
support of the Application for
“Interim Reliefs”
referred to supra:-
51. “That I therefore pray
that this court makes an order
to eject the Petitioner from the
matrimonial home and to restrain
him from coming anywhere near
the matrimonial home or my
person pending the determination
of this suit.
52. That the Petitioner is
best suited to move to the East
Legon property which he has
refurbished to his taste and
which property he claims in
paragraph 113 of his Reply that
I am not familiar with.
55. That I pray the court
orders the parties to have
joint use and occupation of
their house in Ada and for the
parties to have use of the said
home on alternate weekends.
56. That I am advised by
Counsel and verily believe same
to be true that granting this
Application in the terms sought
will avert imminent danger
and chaos and will safeguard the
rights of both parties pending
the determination of the
substantive matter.” Emphasis
supplied
Thereafter, the following
depositions in paragraphs 6,
8, 9, 10 and 11 were
contained in a supplementary
affidavit filed by the Appellant
in further support for the
“Interim Relief”:-
6. “That
despite the fact that the
Respondent has moved out of the
matrimonial home, Respondent
continues to engage in acts
intended to cause fear,
insecurity and anxiety in the
matrimonial home and to
ultimately make the matrimonial
home uninhabitable.
8. That from 19th
of July, and on the 26th,
27th, 28th
and 29th of July 2018
right to the 10th of
August 2018, the Respondent
removed our matrimonial property
such as kitchenware, furniture,
household chattels, fittings,
fixtures, library books, law
text books, documents, equipment
and other household items onto
vehicles including commercial
loading vehicles to be delivered
at the East Legon property.
9. That Respondent
abruptly terminated the
contracts of the houseboy and
cleaner, the laundryman, the
chef, the gardener, the swimming
pool attendant, the security
guards, the aquarium maintenance
man, and the veterinary officer
taking care of the dogs.
10. That on 26th
July 2018, when Respondent left
the matrimonial home with some
more items, the water pump which
pumps water into the house was
coincidentally damaged and the
house was without water.
11. That on separate
occasions, and in a similar
fashion the generator, electric
fence and security system and
pump for the swimming pool
mysteriously got damaged and all
had to be repaired.”
In order not to be outdone, the
Respondent herein also deposed
to the following averments in
paragraphs 4, 7, 22 and 40 of
his affidavit in response to the
Application for “Interim
Relief”.
4. “I deny, in
response to Paragraphs 8 and 9
of the Affidavit in support,
that I have created an
atmosphere of hostility against
Applicant at home. I had stopped
communicating with Applicant
long before I informed her about
my decision to seek divorce.
Nothing has changed in that
regard. I have never banged
doors when I bump into Applicant
at home. As much as possible, I
actually avoid meeting her.
Applicant is simply having a
hard time accepting the fact
that things are not what they
used to be.
7. In response to
Paragraphs 11 and 12 of the
Affidavit in Support, I say that
before the spraying was done, I
had duly notified our daughter
the day before and asked her to
take charge of the process. I am
informed by our daughter and
verily believe same to be true
that the Applicant was made
aware of the impending spraying
exercise. The spraying was done
when I was not at home. Our
daughter also has a key to the
master bedroom, and if the
bedroom were sprayed, she would
have been the one who would let
the workmen into the bedroom.
The sprayer had never ever
sprayed the bed previously, and
has confirmed to me that he did
not spray the bed this time. It
has never been the practice that
I would strip the beddings or
remove the curtains after
spraying the room anyway. The
first time I heard of this
accusation was at DOVSU. The
complaint Applicant made to
DOVSU was that I had personally
sprayed chemicals on her bed to
harm her. I was completely
stunned when I was informed.
22. I deny in response to
Paragraphs 34 and 35 of the
Affidavit in Support that
Applicant has any interest in
the Ada home. She kept a
nightdress, a pair of shoes and
few cosmetics at my
self-acquired property at Ada
the second time she visited the
property with me. I did not see
the need to keep those items at
the property once I had filed my
Petition. I returned them to her
soon after I filed the Petition
months ago.
40. I oppose,
respectfully, the grant of the
orders requested for by
Applicant in paragraph 55 of the
Affidavit in Support. It is
merely designed to provoke me.
The last time that Applicant
went to Ada was on Sunday
October 22, 2017 when she had
sought and obtained my
permission to host her year
group. As I had indicated in my
Reply to Applicant’s answer,
Applicant has been to the
property only four times in the
last three years. Requesting for
an order to now begin to use the
Ada property with me runs
counter to the spirit of the
present application even at
the superficial level, which is
to avoid confrontation. This is
because ordering me to allow
Applicant joint use of the
property would merely create a
new potential area of conflict,
ill-feeling, disruption that did
not exist previously, which, in
my humble view, is what
Applicant seeks to do by her
prayer. There is no need
imposing something on what did
not exist in the first place.”
On the 8th day of
February 2019, Her Ladyship
Hafisata Amaleboba (Mrs)
presiding over the Divorce and
Matrimonial Division of the High
Court,
Accra delivered herself on the
Application for “Interim Relief”
as follows:-
“As the parties are engaged in
ongoing litigation in this
matter, I am unable to make
orders to restrain the
Petitioner, from coming within a
certain distance of the
Respondent, as same will be
incapable of compliance, since
the parties will both have to
attend this court. I do,
however, expect that both
parties will act to avoid any
breaches of the law, while this
matter is pending before this
court.
Upon all of the foregoing, the
court makes the following orders
The prayer for the Petitioner to
return items to the matrimonial
home, will abide a determination
upon evidence adduced at the
trial, of all the said items in
Petitioner’s possession;
which of them are matrimonial;
and the distribution thereof.
In the interim, the
Petitioner is restrained from
disposing of any of the items in
his possession, pending the
final determination of this
suit.
Counsel for Respondent has
informed the court that,
pursuant to an amicable
agreement between the parties,
on interim access and custody of
the youngest male child of the
marriage, the prayer for same
has been abandoned. In the
circumstances, no orders will be
made in this regard.
The prayer for the parties to
have alternative use and
occupation of the house at Ada
is granted. The parties are to
have use of the said house on
alternative weekends.
The Petitioner is restrained
from visiting the matrimonial
home and from taking any further
items from same.
These orders are to subsist
until the final determination of
this suit unless any further or
other orders are made.
The Application is granted in
part.”
As the Respondent herein felt
aggrieved by the decision of the
High Court dated 8th
February 2019 and referred to
supra, he caused an appeal to be
filed against the said decision
to the Court of Appeal.
He also filed an application for
Stay of Execution of the said
Ruling in respect of which a
decision was rendered on the 27th
May 2019, refusing the said
application as follows:-
“The wording contained in the
part of the Ruling appealed
against, to wit: “The prayer for
the parties to have use and
occupation of the house at Ada
is granted. The parties are to
have use of the said house, on
alternative weekends”, without
more, does not in my view,
require the Petitioner to do an
act within a specified time, or
refrain from doing an act.
Having therefore, examined this
part of the Ruling appealed
against, I am satisfied that,
the part of the decision
appealed against, is an order of
the Court that is not capable of
execution, by any of the known
processes of execution, provided
by the Rules of Court.
It is settled law that, where an
order or decision of a court, is
incapable of execution by any of
the known processes of
execution, an order for stay of
execution cannot be granted in
respect of the said order or
decision. I will in the
circumstances, refrain from
determining the merits of the
Application.
Consequently, having come to the
conclusion that the part of the
Ruling appealed against, as it
stands presently, is not capable
of execution, I am unable to
grant an Application for stay of
execution, in respect of same.
Accordingly, the Application is
refused.”
On the 3rd day of
December 2019, the Court of
Appeal in a unanimous decision
allowed the repeat application
for Stay of Execution of the
orders of the High Court
in the following terms:-
“By Court: Upon hearing both
Counsel put forth their
arguments for and against the
motion and upon a perusal of the
documents put before us, we
are of the candid opinion that
the Applicant has demonstrated
exceptional circumstances to
warrant us to grant the
application. Consequently, the
application is hereby granted.
There would be no order as to
costs.”
THE INSTANT APPEAL
The Appellant, feeling aggrieved
by the decision of the Court of
Appeal
dated 3rd December
2019 and referred to supra,
caused an appeal to be filed
against the said decision to
this court on the 12th
February 2020 with the following
as the grounds of appeal.
a.
That the learned Justices of the
Court of Appeal erred and
occasioned a grave miscarriage
of justice when they held that
there were exceptional
circumstances for granting the
Repeat Stay Application, thereby
depriving the Appellant of her
fundamental right to Marital
Property as guaranteed by
Article 22 (3) of the
Constitution, 1992 and affirmed
by the Supreme Court’s decision
in
Arthur v Arthur [2013-2014] 1
SCGLR 543.
b.
That the Learned Justices of the
Court of Appeal committed an
error of law and occasioned a
grave miscarriage of justice
when they disregarded the
settled position of the law and
the hackneyed authorities
regarding non-executable orders
and overruled the Appellant’s
preliminary objection to the
Repeat Stay Application on the
basis that the High Court’s
orders were declaratory in
nature and therefore not
executable.
c.
That the learned Justices of the
Court of Appeal committed an
error of law and occasioned a
miscarriage of justice when in
exercising their concurrent
jurisdiction with the High Court
to hear the Repeat Stay
Application, they considered a
Supplementary Affidavit filed by
the Respondent for the first
time in the Court Appeal, in
spite of the Appellant’s
preliminary objection that such
Supplementary Affidavit should
not be countenanced in a Repeat
Application for
Stay of
Execution.
d.
Further ground (s) of appeal
shall be filed upon receipt of
the record of Appeal.
No further grounds of appeal
have been filed.
ANALYSIS OF THE STATEMENTS OF
CASE FILED BY LEARNED COUNSEL
FOR THE PARTIES
Whilst commending learned
counsel for the Appellant, Mrs.
Victoria Barth, for the detailed
and well composed statement of
case, it does appear to us that,
learned counsel went over board
and took a lot of extraneous
matters into consideration in
the statement of case so filed.
For example, it is quite
clear that, this being an
interlocutory appeal, issues of
title to the properties, and the
provisions of Article 22 (3) of
the Constitution 1992 which was
used in the decision of this
court in Arthur v
Arthur [2013-2014] 1 SCGLR 543,
holding 1 thereof should not
have had pride of place in the
Statement of Case. This is
because issues of who owned this
or that property did not
constitute the basis upon which
the learned High Court Judge
granted the Interim Reliefs
which formed the bedrock of this
Interlocutory Appeal.
Without intending to be
repetitive, it is perhaps
necessary to quote again
portions of the learned trial
Judge’s orders dated 8th
February 2019 on the Interim
Relief as follows:-
“The prayer for the Petitioner
to return items to the
matrimonial home will abide a
determination upon evidence
adduced at the trial, of all
the said items in Petitioner’s
possession, which of them are
matrimonial, and the
distribution thereof. In the
interim, the Petitioner is
restrained from disposing of any
of the items in his possession,
pending the final determination
of this suit.” Emphasis supplied
The rationale behind the learned
trial Judge’s orders referred to
supra actually speak to the
generality of the issues dealt
with under the application for
Interim Relief. This to our
understanding meant that,
pending the resolution of the
substantive petition, in which
the court will make a
determination as to which of the
properties are matrimonial
properties and the subsequent
distribution thereof, the
parties were to hold the items
of properties in their
possession until the final
determination thereof of the
Petition
With that scenario at the
background, the contention by
learned counsel for the
Appellant inviting this court to
apply the provisions of
Article
22(3) of the Constitution 1992
is actually begging the
question and appears to
constitute the court as
determining the substantive
issues raised in the Petition in
an application for the interim
reliefs.
In order for this invitation to
rely on the above constitutional
provisions to be clarified, we
deem it appropriate to refer in
extenso to the entire Article 22
(1) (2) and (3) of the
Constitution 1992 which states
as follows:-
22 (1) “A spouse
shall not be deprived of a
reasonable provision out of the
estate of a spouse whether or
not the spouse died having made
a will.
(2) Parliament
shall, as soon as practicable
after the coming into force of
this Constitution enact
legislation regulating the
property rights of spouses.
(3) With a view
to achieving the full
realisation of the rights
referred to in clause (2) of
this article;
(a) spouses shall have
equal access to property jointly
acquired during marriage;
(b) assets which are
jointly acquired during marriage
shall be distributed equitably
between the spouses upon
dissolution of the marriage.”
Emphasis supplied
In the instant case, even though
there is a petition praying for
the dissolution of the marriage,
that has not yet been granted by
the court. This court should
not lose sight of the fact that,
this appeal has been
necessitated by the application
of the Appellant for “Interim
Relief Pending Determination of
Substantive Matrimonial Cause.”
This Court should be deemed as
having interpreted marital
property in Article 22 (3) in
Arthur v Arthur
already referred to supra as
follows:-
“Marital property is thus to
be understood as property
acquired by the spouses during
the marriage, irrespective of
whether the other spouse has
made a contribution to its
acquisition.”
Emphasis supplied
The above statement in our
opinion has direct relevance and
effect on the determination of
this appeal.
What this means in substance is
that, the Article 22 (3)
provisions of the Constitution
only become effective upon
dissolution of the marriage when
the distribution of the
properties are being considered.
We have also perused the brief
but incisive statement of case
by Osafo-Buabeng, learned
counsel for the Respondent
herein.
We also note with appreciation
the fact that learned counsel
confined his arguments within
the remit of the scope of the
“Interim Relief” and
refrained from making an
invitation to the court to as it
were make pronouncements on the
substantive Petition.
It should be noted quite clearly
that, the application of Article
22 (3) provisions of the
Constitution to determine what
constitutes marital property and
which of them should go to
Appellant or Respondent can only
be done at the end of the case
after evidence has been led. At
the stage the application for
“Interim Relief” had been
made, the court was only invited
to exercise its discretion to
ensure that there is no imminent
danger or chaos to the Appellant
and that the rights of both
parties would be safeguarded and
protected pending the
determination of the substantive
matter.
In our opinion therefore, the
way the trial court and the
intermediate Appellate court
dealt with the above resolutions
is what constitutes the appeal
herein before us.
In the determination thereof of
this appeal, the issues of title
to the properties and the
subsequent application of
Article 22 (3) of the
Constitution 1992 to the
determination thereof of the
appeal are not considered
germane at this stage mainly due
to the interim nature of the
application and the mischief it
was meant to cure at the
material time
GROUNDS OF APPEAL
Having apprized ourselves with
the grounds of appeal and the
arguments contained in the
Statements of case filed by
learned counsel for the parties
herein, we intend to deal with
all of them together in the
following manner. This is
because, for example ground A of
appeal which states as
follows:-
a.
“That the learned Justices of
the Court of Appeal erred and
occasioned a grave miscarriage
of justice when they held that
there were exceptional
circumstances for granting the
Repeat Stay Application, thereby
depriving the Appellant of her
fundamental right to Marital
Property as guaranteed by
Article 22 (3) of the
Constitution, 1992 and affirmed
by the Supreme Court’s decision
in Arthur v Arthur
[2013-2014] 1 SCGLR 543.”
With our discussion stated
supra, it means therefore that
all the arguments contained in
support of the said ground
cannot stand. This is because,
not being a resolution of the
substantive pending Divorce and
Matrimonial cause, those issues
do not serve as a guide in
dealing with the matters
contained in the determination
of this Interlocutory Appeal.
For example, in coming to her
decision, the learned trial
Judge did not take into
consideration whether title to
the matrimonial home in Ogbojo
and the East Legon properties
which were settled in favour of
the parties before she directed
them to move into those
properties pending the hearing
and determination of the
substantive case. Similarly, the
constitutional provisions in
Article 22 (3) were not used to
decree ownership or make
authoritative pronouncements on
the rights of the parties
vis-à-vis those properties.
What mattered most at the
material time were the
exceptional circumstances that
formed the basis of the trial
court and subsequently that of
the Court of Appeal’s decisions
on the matter.
The Appellant herself called the
shots in her affidavit in
support of her application for
“Interim Reliefs”
referred to supra in paragraphs
51, 52, 55, 56 of the main
affidavit in support and
paragraphs 6, 8, 9, 10 and 11 of
the supplementary affidavit all
referred to supra. In those
depositions, the Appellant made
it look unsafe and dangerous to
have the Respondent and herself
share any property much more
come into close proximity. These
facts definitely constituted
exceptional circumstances such
that the Court of Appeal was
entitled to take them into
consideration when evaluating
the basis upon which the trial
court made the orders in respect
of the Ada property considering
the heightened state of
hostilities that exists between
the parties, which scenario was
painted vividly from reading of
the depositions contained in the
affidavits of the parties. A
Court of law, such as this court
should be cautious in ensuring
that the orders it makes does
not lead to violence.
These matters indeed constituted
exceptional circumstances for
which the Court of Appeal cannot
be faulted in the decision it
came to on appeal by the
Respondent herein. Prevention is
definitely better than regret.
GROUNDS B AND C
b.
That the Learned Justices of the
Court of Appeal committed an
error of law and occasioned a
grave miscarriage of justice
when they disregarded the
settled position of the law and
the hackneyed authorities
regarding non-executable orders
and overruled the Appellant’s
preliminary objection to the
Repeat Stay Application on the
basis that the High Court’s
orders were declaratory in
nature and therefore not
executable.
c.
That the learned Justices of the
Court of Appeal committed an
error of law and occasioned a
miscarriage of justice when in
exercising their concurrent
jurisdiction with the High Court
to hear the Repeat Stay
Application, they considered a
Supplementary Affidavit filed by
the Respondent for the first
time in the Court Appeal, in
spite of the Appellant’s
preliminary objection that such
Supplementary Affidavit should
not be countenanced in a Repeat
Application for Stay of
Execution.
In these two grounds B and C,
learned Counsel for the
Appellant anchored her arguments
on the fact that, the learned
Justices of the Court of Appeal
“disregarded the settled
position of the law regarding
non-executable orders and over
ruled the Appellant’s
preliminary objection to the
repeat Stay Application on the
grounds that the orders of the
High Court were declaratory and
therefore not executable”,
for ground B. And also that, the
learned Justices of the Court of
Appeal erred in exercising their
concurrent jurisdiction in
considering a repeat application
by relying on a supplementary
affidavit filed for the first
time in that court despite the
Appellant’s preliminary
objection that such
supplementary affidavit should
not be used in a repeat
application for stay of
execution as contained in ground
C.
We have apprized ourselves with
the detailed submissions of
learned counsel for the
Appellant and the Respondent in
respect of these two grounds of
appeal, B and C respectively. We
have also considered all the
legal authorities referred to
and we wish to put our decision
in the very narrow context in
which the relevance of this case
requires.
For example, with the decision
of this court, by an enhanced
panel of seven (7) in the case
of
Ogyeadom Obranu Kwesi Atta VI v
Ghana Telecommunications Co.
Limited Civil Appeal No.
J8/131/2019, dated
28th April 2020,
the reliance on earlier
decisions of this court on the
principle that a judgment that
is declaratory cannot be stayed
is no longer good law. The
principle of stare decisis
required that, decisions of this
court, to the extent of which
they change and or depart from
previous binding decisions must
be applied by all courts.
Article 129 (3) of the
Constitution which provides as
follows:-
“The Supreme Court may, while
treating its own previous
decisions as normally binding,
depart from a previous decision
when it appears to it right to
do so, and all other courts
shall be bound to follow the
decisions of the Supreme court
on questions of law.” Emphasis
supplied
It therefore bears emphasis that
the Supreme Court must be deemed
to have departed from its
previous decisions which
followed the principle relied
upon by learned counsel for the
Appellant.
In appropriate circumstances
such as has been amply exhibited
in the instant case, this court
was clear in its decision that,
henceforth, it may stay
execution of decisions which
appear not to be executable, but
in real terms achieve executable
inevitabilities. For example, if
the Respondent herein fails to
comply with the decision of the
learned trial High Court Judge,
he could have been cited for
contempt with all its attendant
executable consequences, i.e.
serve time in prison. The
decision in the Ogyeadom
Obranu Kwasi Atta VI v Ghana
Telecom should therefore
be looked at in that respect as
seeking to bring sanity to the
otherwise confused arena where
courts of law looked on in
despair and often times adopted
principles like suspension of
judgment etc. in order to
achieve substantial justice, and
prevent failure of justice
because of the over reliance on
the rigid application of the
principle of not executing non
executable decisions.
See cases like of
1.
N. B. Landmark Ltd. v Lakiani
[2001-2002] SCGLR 318
2.
Appiah v Pastor Laryea Adjei
[2007-2008] SCGLR 863
3.
N.D.K Financial Services v
Yiadom Construction and
Electrical Works and Others
[2007-2008] SCGLR 93
4.
Merchant Bank Ghana Limited v
Similar Ways [2012] 1 SCGLR 440
5.
Standard Chartered Bank Ghana
Limited v Western Hardwood
[2009] SCGLR 196
6.
Golden Beach Hotels Ghana
Limited v Pack Plus
International Limited [2012]
SCGLR 452
7.
A.D.M Cocoa Ghana Limited v
International Loan Development
Limited Civil Motion No.
J8/47/2015 dated 7th
May 2015 unreported.
We therefore consider as very
disingenuous the attempt by
learned counsel for the
Appellant to rely on a
concurring opinion of our
respected brother Pwamang JSC in
the said Ogyeadom Obranu
Kwesi Atta VI case to
advocate a contrary opinion.
Out of abundance of caution, let
us refer to portions of our
brother Pwamang JSC’s closing
statements in his opinion just
referred to in the said case.
“For the purpose of disposing of
the application before us, I
shall treat it as one seeking
the stay of execution of the
judgment of the High Court which
I understand to be the
alternative prayer of the
applicant. As my analysis above
shows, the court has
jurisdiction to entertain that
application and make an order in
order to prevent its final
judgment in the substantive
appeal being rendered nugatory
and by virtue of Articles 131
and 129(4) of the Constitution
and Or 43 R11 of C.I.47. On the
basis of the matters deposed to
in the affidavit in support, I
find merit in the application
and make an order staying
execution of the judgment of the
High Court in this case dated
10th May, 2017 pending the
determination of the appeal of
the applicant lodged in this
court.”
It can therefore be seen that
the two opinions of the court
have the same effect and value.
At this stage we accordingly
dovetail our discussions on
grounds B to C as follows:-
Whilst learned counsel for the
Appellant, Mrs. Victoria Barth
has contended that, the Court of
Appeal erred by allowing the
Respondent to introduce by a
supplementary affidavit, facts
which were in existence but were
not included in the affidavit
before the trial court for the
Stay of Execution, learned
counsel for the Respondent,
Osafo Buabeng argued that the
said contention has been based
on a misconception of the nature
of the jurisdiction of the
intermediate Court of Appeal in
a repeat application for Stay of
Execution.
Both counsel anchored their
submissions on the case
of
Republic v Court of Appeal
Accra, Ex-parte Ghana Cable Ltd,
Barclays Bank Ghana Limited-
Interested Party [2005-2006]
SCGLR 107 and
application of Rules 27 and 28
of the
Court of Appeal Rules 1997 (C.I.
19) with its amendments in
C. I. 21 and 25.
A close reading and
understanding of Rule 28 of C.
I. 19 establishes the following
procedural guidelines in the
Court of Appeal, where an
application may be made either
to the trial Court or the Court
of Appeal specifically as
follows:-
1.
In all cases, such an
application i.e. stay of
execution shall be made first to
lower court, and this is the
trial court
2.
Following the refusal of the
application by the trial court
the applicant shall then move
the Court of Appeal for the
determination of the
application.
What application then is
presented before the Court of
Appeal following a refusal of
same by the trial Court?
From practice, a fresh motion
paper and its supporting
affidavit is filed before the
Court of Appeal, sometimes
attaching the grant of the
application on terms considered
as onerous by the Applicant or
by an outright dismissal.
Twum JSC, in the case of
Republic v Court of Appeal
Accra, Ex-parte Ghana Cable
Ltd,( Barclays Bank Ghana
Limited –
Interested Party)
already referred to supra,
stated as follows:-
“In the particular arrangement
created by Rules 27 and 28 of
C.I. 19, the Court of Appeal has
a separate and
distinct and independent
jurisdiction to consider the
repeated application. Rule 28
merely postpones the exercise of
its jurisdiction until it knows
what the High Court has decided.
Rule 28 does not confer
jurisdiction on the Court of
Appeal after the High Court has
exercised its own jurisdiction.
The true ratio decidendi of the
Supreme Court decision in
Ex-parte Sidi is that as long as
the Applicant feels that a grant
on terms by the High Court is
not the answer to his prayers,
he has the right to repeat this
application in the Court of
Appeal. And once the application
is properly filed in the Court
of Appeal, it must consider
the application on the merits,
afresh and come to an
independent decision. In the
nature of things, unless the
Court of Appeal confirms the
decision of the court below, its
own order prevails”. Emphasis
supplied
This in effect is an endorsement
of the principle that the Court
of Appeal is to consider the
application before it on the
merits of the application as
filed, and that the decision the
court makes must be a fresh
consideration of the entirety of
the application both on the
facts and the law and finally
that in doing so, the court must
not be bound to any apron
strings, that is to say the
earlier decision of the trial
court has no bearing on the
outcome of the Court of Appeal’s
own decision.
In the scheme of things, the
Court of Appeal may endorse the
decision of the trial court but
that decision is that of the
Court of Appeal.
What this means therefore is
that, the Court of Appeal in
arriving at its decision is
entitled to look at all the
materials provided by the
processes put before them.
Looking at the contents of Rules
27 and 28 of the Court of Appeal
Rules which are headed
“Effect of Appeal” and
“Court to which application
should be made”, we are
inclined to accept the position
that, the import of the Rules is
to make the application before
the Court of Appeal a repeat
application in procedure but not
in content. Otherwise, the Court
of Appeal will not have any
discretion in the matter and
would have been bound to look
only at the processes filed
before the trial court. But as
was explicitly explained and
stated in Ex-parte Ghana
Cable Limited, (Barclays Bank
Ghana Limited – Interested
Party) supra, the
jurisdiction of the Court of
Appeal is not only separate and
distinct under this repeat
application, but is also
independent and not tied to the
apron strings of any other
processes other than those
contained in the repeat
application.
We are therefore of the
considered opinion that, the
decision of our esteemed brother
Akamba JSC, sitting as single
Justice in the Case of
Ghana Commercial Bank (No.1) v
Bulkship & Trade Limited (No 1)
2015-2016 SCGLR 748 at 757
and also the case of Nii
Kojo Danso II v The Executive
Secretary, Lands Commission, The
Executive Secretary, Land
Valuation Board, The
Attorney-General and Joshua
Attoh Quarshie [2018] DLSC 4135
at page 13
per Pwamang JSC where
he drew the distinction between
repeat interlocutory
applications and appeals
against an interlocutory
decision speaks volumes and
should therefore serve as useful
guide in circumstances like
this. It states thus:-
“It is important to underscore
the substantial difference
between a repeat interlocutory
application and an Appeal
against an interlocutory
decision of the High Court.
With the repeat application, the
Court of Appeal exercises its
own discretion in the matter as
it sees fit, but with the
Appeal against an interlocutory
decision of the High Court, the
Court of Appeal determines if
the High Court exercised its
discretion in the case in
accordance with correct
principles of law. In such
Appeals, the Court of Appeal has
no discretion of its own in the
matter.” Emphasis supplied.
See Dennis Law, Supreme Court,
Legal Nuggets 2019 page 87
It is interesting to observe
that, the above decision has
also reiterated the fact that,
the Court of Appeal has
unfettered discretion in
considering repeat applications
filed before it for
determination.
We are therefore of the settled
and conclusive opinion that, the
Court of Appeal in considering
its jurisdiction in a repeat
application such as the instant
one the subject matter of this
appeal, being a fresh
application before it, is
definitely not dependent on the
processes filed in the trial
court.
The Court of Appeal can
therefore under the
circumstances where appropriate
during the hearing of the repeat
application before it consider
matters that were not placed
before the trial court.
CONCLUSION
Having taken all the above
factors into consideration,
especially the explosive nature
of the relationship between the
parties herein, which has found
expression in the narratives in
Statement of the facts, it is
considered worthwhile, prudent
and reasonable not to disturb
the decision of the Court of
Appeal.
We have already referred to in
extenso details of the
depositions in the affidavits of
the parties herein, especially
those of the Appellant. We have
been left in no doubt, that in
order to ensure that peace
reigns between the parties
pending the resolution of the
substantive Petition, care must
be taken to prevent the path of
the parties from crossing.
A Court of law, must always
ensure that its decisions do not
lead to a breach of the peace
and where red flags are raised
and it is impossible to ignore
those flags, prevention is
definitely better than cure or
regret. It is therefore our
considered opinion that, the
level of mistrust, hostilities
and loss of understanding
between the parties is such that
the alternative use of the Ada
property which is what the
Appellant asked for and was
granted by the learned trial
Judge is a recipe for chaos,
disaster and calamity. Even
though we are not doomsday
prophets, we have experience
enough in such matters and we
think a stich in time saves
nine.
In this respect, we deem it also
prudent to sound a note of
caution that, this being an
interlocutory appeal which has
no bearing on the determination
of the substantive petition, the
parties are to remain civil to
each other pending the
determination of the petition.
Under the circumstances, the
appeal herein filed by the
Appellant against the decision
of the Court of Appeal dated the
3rd day of December
2019 fails and is accordingly
dismissed.
We accordingly affirm the said
decision. We however direct the
parties herein and their counsel
to expend some of the energies
exhibited in the conduct of the
instant appeal towards the
prosecution of the substantive
Petition. This will not only
ensure an early resolution of
the Petition between the
parties, but will also bring to
an end the determination of the
rights of the parties,
constitutional and statutory of
all proprietary and matrimonial
interest therein.
The Respondent is however
restrained from taking any steps
to alienate the said property at
Ada, the subject matter of this
appeal pending the determination
of the substantive petition.
V.
J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
PROF. H. J. A. N.
MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME
COURT)
E. Y. KULENDI
(JUSTICE OF THE SUPREME COURT)
COUNSEL
O.K OSAFO BUABENG ESQ FOR
PETITIONER/APPELLANT/RESPONDENT
WITH HIM, AGYENIM-AGYEI BOATENG
ESQ.
VICTORIA BARTH ESQ FOR
RESPONDENT/RESPONDENT/APPELLANT.
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