Practice and Procedure - Stayed
the proceedings - Whether or not
the Ada Coastal Protection
Contract documents ordered to be
produced are not necessary to
dispose fairly of the cause or
matter or to save cost - Whether
respondent was not a party to
the Ada Coastal Protection Works
neither are the terms of the
contract relevant to the matters
in dispute -
HEADNOTES
The respondent herein and three
other defendants (who appeared
not to contest the matter), were
sued by the appellant before the
High Court, Ho. The respondent
is a foreign firm engaged in
marine reclamation and was
engaged by the Government of
Ghana to undertake the salvaging
of coastlines at Ada and other
areas in the Volta Region to
prevent further erosion of the
coastline. The respondent,
executed the contract and in
course of so doing, the
appellants sued them at the Ho,
High Court on 11/08/2014. The
basis of the claim was that the
execution of the contract had
resulted in substantial damage
to their properties and affected
an island known as Gamewu Island
rendering it inhabitable. The
respondent therefore claimed
damages for the loss of
properties and sought other
reliefs to restrain the
respondent. As said earlier,
the 1st, 2nd and 4th
defendants did not enter any
appearance and the respondent
herein who was at the material
time physically on the site
entered appearance and contested
the action. As expected, the
respondent denied any damage
caused by his activities. The
appellant sought and order of
mandatory injunction against the
respondent on the grounds that
the “natural calm flow” of the
Volta River into the sea had
been disturbed by the activities
of the respondent. After hearing
the interlocutory application
the trial court made
far-reaching consequential order
directing the 2nd and
3rd defendants to act
within forty days to dredge sand
and to protect with groins the
partly submerged island and the
main land. A further order was
made directing the respondent to
pay into court Gh₵8, 000.000.00
as security for its presence in
Ghana, which order the
respondent appealed. The
appellant further applied for an
order directing the respondent
to file “the full and complete
authentic page by page Ada
Coastal Protection Works
contract documents and other
related documents regarding
insurance, contingency,
environmental guarantee to the
project financing Bank”. This
interlocutory order was opposed
by the respondent and after it
was granted respondent again
appealed against it. As these
far-reaching orders were not
being complied with, the
appellant applied to have the
statement of defence of the
respondent struck out for
judgment to be accordingly
entered against the respondent.
It is against this order that
the respondent applied for stay
of proceedings at the Court of
Appeal, Koforidua and same was
granted
HELD :-
We have come to this conclusion
without seeking to make any
pronouncements which may
prejudice the determination of
any of the appeals pending at
the Court of Appeal even though
from the submissions of counsel
for the appellants in would
appear that he was inviting this
court to do so from a close
reading of the submissions and
the grounds of appeal filed. We
are of the considered opinion
that the determination for the
few grounds of appeal should
suffice to dispose of this
appeal.,We accordingly proceed
to dismiss this appeal as
without merits.
DISSENTING OPINION
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules 1996 (C.I.
16 )
CASES REFERRED TO IN JUDGMENT
ASAMOAH v MARFO [2011] 2 SCGLR
832,
REPUBLIC v CONDUAH; EX PARTE
AABA substituted by ASMAH [2013
– 2014] SSCLR 1032
RE SUHYEN STOOL; WIREDU &
OBENEWAA v AGYEI & ORS [2005 –
206] SCGLR.
Re: Artistic Colour Printing Co.
[1880] 14 chD.502
REPUBLIC v COMMITTEE OF INQUIRY
(R.T. BROSCOE (GHANA) LTD); EX
PARTE R.T.BRISCOE (GHANA) LTD.
[1976] IGLR 166 CA
SELDON v DAVIDSON [1968] IWLR
1038, CA.
GARRET v GARRETT [1991] 2 GLR
366 CA.
OWUSU v OWUSU-ANSAH [2007-2008]
2 SCGLR 870,
CRENSTIL v CRENSTIL [1962 2 GLR
171 SC
BLUNT v BLUNT [1943] AC 517, HL
HADMOR PRODUCTIONS LTD v
HAMILTON [1983] I AC 191 HL..
COOPER v WILLIAMS [1963] 2
QB567.
BOOKS REFERRED TO IN JUDGMENT
Atkin’s Encyclopedia of Court
Forms in Civil Proceedings
(second Edition, Volume 37
DELIVERING THE LEADING JUDGMENT
YEBOAH, JSC:-
COUNSEL
EDWARD MARSHALL KOBLAH PENU FOR
THE PLAINTIFFS/ RESPONDENTS/
APPELLANTS.
S KWAMI TETTEH FOR THE 3RD
DEFENDANT/APPELLANT/RESPONDENT.
YEBOAH, JSC:-
This appeal before this court is
from the judgment of the Court
of Appeal, Koforidua which
stayed the proceedings of the
High Court, Ho.
The case did not proceed to
trial on the merits and
therefore the facts for the
determination of this
interlocutory appeal are
captured only from the
pleadings, the affidavits of
parties and the courts’ records
before us as an appellate court.
The respondent herein and three
other defendants (who appeared
not to contest the matter), were
sued by the appellant before the
High Court, Ho. The respondent
is a foreign firm engaged in
marine reclamation and was
engaged by the Government of
Ghana to undertake the salvaging
of coastlines at Ada and other
areas in the Volta Region to
prevent further erosion of the
coastline. The respondent,
executed the contract and in
course of so doing, the
appellants sued them at the Ho,
High Court on 11/08/2014. The
basis of the claim was that the
execution of the contract had
resulted in substantial damage
to their properties and affected
an island known as Gamewu Island
rendering it inhabitable. The
respondent therefore claimed
damages for the loss of
properties and sought other
reliefs to restrain the
respondent. As said earlier,
the 1st, 2nd and 4th
defendants did not enter any
appearance and the respondent
herein who was at the material
time physically on the site
entered appearance and contested
the action. As expected, the
respondent denied any damage
caused by his activities. The
appellant sought and order of
mandatory injunction against the
respondent on the grounds that
the “natural calm flow” of the
Volta River into the sea had
been disturbed by the activities
of the respondent.
After hearing the interlocutory
application the trial court made
far-reaching consequential order
directing the 2nd and
3rd defendants to act
within forty days to dredge sand
and to protect with groins the
partly submerged island and the
main land. A further order was
made directing the respondent to
pay into court Gh₵8, 000.000.00
as security for its presence in
Ghana, which order the
respondent appealed. The
appellant further applied for an
order directing the respondent
to file “the full and complete
authentic page by page Ada
Coastal Protection Works
contract documents and other
related documents regarding
insurance, contingency,
environmental guarantee to the
project financing Bank”. This
interlocutory order was opposed
by the respondent and after it
was granted respondent again
appealed against it. As these
far-reaching orders were not
being complied with, the
appellant applied to have the
statement of defence of the
respondent struck out for
judgment to be accordingly
entered against the respondent.
It is against this order that
the respondent applied for stay
of proceedings at the Court of
Appeal, Koforidua and same was
granted on 26/04/2016.
The appellants feeling aggrieved
by the stay ordered by the Court
of Appeal, Koforidua has
appealed to us on a number of
grounds.
GROUNDS OF
APPEAL
1.
The ruling is against the weight
of the evidence
2.
The holding that the 3rd
defendant/appellant/applicants
grounds of appeal against the
High Court order for Discovery ,
alleging that:
i.
“The Ada Coastal Protection
Contract documents ordered to be
produced are not necessary to
dispose fairly of the cause or
matter or to save cost”
ii.
“The respondent was not a party
to the Ada Coastal Protection
Works neither are the terms of
the contract relevant to the
matters in dispute”
iii.
“The Ada Coastal Protection
Contract Documents ordered to be
produced are cumbersome, bulky
and large, covering various
matters including technical
drawings, elevations,
specifications, insurance,
contingency, environmental
issues, project financing and
many other matters that will
complicate and protract a fair
disposal of the action”
iv.
“Reproducing the Ada Coastal
Protection Contract documents
will impose unnecessary
financial burden on the 3rd
defendant.
Are arguable points of law for
staying the entire proceedings
in the suit at the High Court is
a wrongful exercise of judicial
discretion and not supported by
law or the facts.
3.
The Court of Appeal holding that
the 3rd
defendant/appellants refusal to
make discoveries by the High
Court is a special circumstance
to stay the entire proceedings
in the pending suit is not
supported by
i.
Law
ii.
The facts
4.
The Court of Appeal staying the
entire proceedings in the suit
without considering the stage
the appeal against the order for
discovery which has been cause
with non-compliance is wrongful
of judicial discretion.
5.
The Court of Appeal’s ruling
staying the entire proceedings
in the pending suit without
paying due regard to the stage
of the appeal which has been
caught by non-compliance is
wrong in law and a nullity.
6.
The ruling staying the entire
proceedings in the suit is a
wrongful exercise of discretion
which has resulted in gross
miscarriage of justice to the
respondents/appellants
7.
Further grounds of appeal will
be filed upon receipt of the
appeal records.
The respondent has raised
objection to the ground 1 of the
grounds of appeal which seeks to
criticize the judgment on the
basis that it is against the
weight of evidence and the
invitation by the appellant for
this court to conduct a fresh
enquiry or rehear the entire
application for the stay of
proceedings.
The omnibus ground is usually
common in cases in which
evidence was led and the trial
court was enjoined to evaluate
the evidence on record and make
its findings of facts in
appropriate cases. In cases in
which no evidence was led but
the order which has been
appealed against is
interlocutory, such ground of
appeal are not canvased at all.
This has been settled long ago
by this court in three notable
cases; ASAMOAH v MARFO
[2011] 2 SCGLR 832, REPUBLIC
v CONDUAH; EX PARTE
AABA substituted by ASMAH
[2013 – 2014] SSCLR 1032 and
RE SUHYEN STOOL; WIREDU &
OBENEWAA v AGYEI & ORS [2005
– 206] SCGLR.
We think this ground is clearly
misconceived and same is hereby
strucked out as there were no
disputed factual matters which
called for findings by the lower
court which merely determined
the application for stay of
proceedings on affidavit
evidence which was not in
controversy.
Learned counsel for the
respondent has seriously
criticized the formulation of
ground 2 of the grounds of
appeal on the grounds that it
offends Rule 6(4) of CI 16.
Counsel is of the view that the
ground is verbose, narrative and
impeding comprehension. We have
given same thought to the
argument raised against this
ground, however, given the
nature of this case, we have
decided to consider the ground
of appeal regardless of the fact
that the framing of same falls
short of the procedural standard
of this highest court. We
accordingly do so to advance
substantial justice in this
appeal. Our only serious
objection to the ground is the
fact that the learned counsel
for the appellant has quoted a
passage and attributed same to
the learned justices of the
Court of Appeal. We do not find
this statement to have been made
by the Court of Appeal in the
ruling of 26/04/2016 which is on
appeal before us. Indeed the
court’s ruling was tense but
this does not take away the
reasons for the grant of the
application. For a fuller
record we reproduce the order on
appeal:
“we have considered the entire
application and we are of the
considered opinion that the 3rd
defendant has raised an arguable
point which could have an impact
on the decision by the trial
High Court, looking at the
exceptional circumstances of the
case and the grounds of appeal
raised in the Notice of Appeal,
we shall stay proceedings of the
substantive matter pending
before the High Court, Ho until
the interlocutory appeal filed
on 6th November, 2015
is heard. There will be no order
as to costs”
No where in the proceedings of
the court dated 26/04/2016 were
the above statement quoted as a
ground of appeal was stated by
the court on record. We find
this ground as clearly
misleading and proceed to
dismiss same as unmeritorious.
The appeal before us is against
the order staying proceedings by
the Court of Appeal. It is not
a second appeal for us to reopen
the entire matter under the
guise of rehearing. On record,
the High court judge did not
grant any order for stay of
proceedings which any of the
parties appealed to this court
as a court of first instance in
determining the application for
stay of proceedings and no more.
Another complaint against the
ruling which appeared in the
ground 2 of the Notice of Appeal
is an invitation by the
appellant “to conduct a fresh
inquiry or rehear the entire
application for stay of
proceedings pending the
interlocutory appeal which has
brought the suit at the trial
High Court to an abrupt end and
same to the conclusion as to
whether or not on all the
available evidence put before
the Court of Appeal Koforidua …”
We think counsel, with due
respect, is not appreciating the
procedure and principles
governing stay of proceedings.
A stay of proceedings pending in
a court of law is procedurally
derived from three sources: the
courts’ inherent jurisdiction,
the rules of court (if any, is
provided by statute) and the
provisions of a particular
statute e.g. in arbitration
statutes. It is an application
made usually to the court where
proceedings are actively
pending. See Re: Artistic
Colour Printing Co. [1880]
14 chD.502. In his authoritative
book, Atkins Encyclopedia of
Court Forms in Civil Proceedings
(Second Edition, volume 37 page
189 said of stay of proceedings
as follows:
“A stay of proceedings arises
when under an order of the court
proceedings which have been
pending in that court are
brought to a halt at the stage
which they have reached, so that
while the stay is in operation
the parties are precluded from
taking any further step in the
proceedings” [emphasis ours]
It is a discretionary remedy
granted by the court in very
exceptional circumstances after
having taken all relevant
matters into consideration. See
REPUBLIC v COMMITTEE
OF INQUIRY (R.T. BROSCOE (GHANA)
LTD); EX PARTE R.T.BRISCOE
(GHANA) LTD. [1976] IGLR 166
CA and SELDON v
DAVIDSON [1968] IWLR 1038,
CA. and GARRET v
GARRETT [1991] 2 GLR 366 CA.
Learned counsel for the
appellants complaint that the
order for Discovery and Security
for appearance should be
reconsidered by this court, is
with due respect misconceived.
As an appellate court, we could
only intervene in the exercise
of that discretion in limited
circumstances as has been
settled on authority. See
OWUSU v OWUSU-ANSAH
[2007-2008] 2 SCGLR 870,
CRENSTIL v CRENSTIL
[1962 2 GLR 171 SC and BLUNT
v BLUNT [1943] AC 517,
HL.
In the same Atkin’s Encyclopedia
of Court Forms in Civil
Proceedings (second Edition,
Volume 37, at page 195 the
learned author proceeds to
discuss appeals on orders
staying proceedings as follows:
“An order staying proceedings
will be treated as interlocutory
order… moreover, the making of
the order to stay proceedings is
discretionary and the Court
of Appeal will not in general
interfere with the exercise of
the discretion by the judge
except where serious injustice
might otherwise result” [
emphasis ours]
See HADMOR PRODUCTIONS LTD
v HAMILTON [1983] I AC
191 HL.
It was the duty of the
appellants in this appellate
court, to demonstrate that the
discretion exercised for the
grant of the stay of proceedings
by the Court of Appeal was made
on wrong or inadequate materials
or that it acted under a
misapprehension of fact by
giving weight to irrelevant or
unproved matter as it ignored
relevant matters which ought to
have been taken into
consideration thereby leading
the Court of Appeal to
erroneously deciding the
application against the
appellants. We have given
sufficient time to discuss in
detail the grounds for the grant
of the application by the Court
of Appeal and we have found that
even though the ruling appears
to be terse, there was nothing
wrong with the order made given
the circumstance of the case
before it.
Another point raised as a ground
of appeal was the fact that the
Court of Appeal granted the
order to stay the whole
proceedings at the High Court.
It appeared in the submissions
of counsel for the appellant
that no cogent reasons was
offered in support of the ground
of appeal. The order made was
temporarily to halt proceedings
and in practice could be removed
by an order of the court which
granted the stay. See COOPER
v WILLIAMS [1963] 2
QB567.
As we have pointed out above,
that, the discretion is
exclusively vested in the Court
of Appeal which was seized with
the matter, as a court of first
instance. It must be made clear
that there were about three
interlocutory applications that
were appealed against in a case
at the High Court in which, from
the record of proceedings
pleadings had not even closed.
It appears that virtually all
the interlocutory orders made by
the learned High Court judge
adverse to the respondent herein
are on appeal before the Court
of Appeal. The Court of Appeal
could therefore not be faulted
for the grant of the application
to halt all the proceedings
given the fact that the
determination of all the
interlocutory orders were on
appeal could probably have
serious effect on the case
before the High Court, Ho.
We have come to this conclusion
without seeking to make any
pronouncements which may
prejudice the determination of
any of the appeals pending at
the Court of Appeal even though
from the submissions of counsel
for the appellants in would
appear that he was inviting this
court to do so from a close
reading of the submissions and
the grounds of appeal filed. We
are of the considered opinion
that the determination for the
few grounds of appeal should
suffice to dispose of this
appeal.
We accordingly proceed to
dismiss this appeal as without
merits.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
ADINYIRA (MRS), JSC:-
I agree with the conclusion and
reasoning of my brother Yeboah,
JSC.
S. O. A. ADINYIRA
(MRS)
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:-
I agree with the conclusion and
reasoning of my brother Yeboah,
JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the conclusion and
reasoning of my brother Yeboah,
JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the conclusion and
reasoning of my brother Yeboah,
JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
EDWARD MARSHALL KOBLAH PENU FOR
THE
PLAINTIFFS/RESPONDENTS/APPELLANTS.
S KWAMI TETTEH FOR THE 3RD
DEFENDANT/APPELLANT/RESPONDENT.
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