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Execution -
Supreme Court - 1992
Constitution - Article 134(b) -
invoking the original
jurisdiction of the Supreme
Court - Recovery of money - Stay
of execution -
HEADNOTES
On the 1/08/2013, the respondent
herein filed a motion before
this court headed as follows:
“MOTION ON NOTICE FOR AN INTERIM
INJUNCTION OR SUSPENSION OF THE
ENFORCEMENT OF JUDGMENT” As
expected in matters in execution
of judgments, the application
was opposed by the applicant
herein. The basis for the
application was that the
applicant herein in a High Court
[Land Division, Accra] suit
intituled: SUIT NO. IRL/167/2010:
ZOOMLION GHANA LIMITED v
MERSKWORLD GHANA LIMITED, was on
the 9/04/2013 adjudged by the
said High Court to recover
various sums of money from the
respondent herein. The
respondent lodged an appeal
against the judgment at the
Court of Appeal, Accra. It
appeared that on 24/04/2013, the
High Court was by a motion
invited to stay execution of its
judgment. The court dismissed
the application and therefore
paved way for execution to
proceed. Not satisfied with the
order of the High Court, the
respondent herein repeated the
application for stay of
execution at the Court of
Appeal, Accra. On 20/05/2013,
the Court of Appeal granted the
motion for stay of execution
HELD We accordingly
allow the application and set
aside the ruling of the single
judge dated the 7th
of November, 2013. The
respondent herein felt aggrieved
by the orders of the Court of
Appeal as it considered the
orders as onerous and therefore
lodged an appeal to this court
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
MARIAM AWUNI
v WEST AFRICAN EXAMINATION
COUNCIL [2003-2004] SCGLR 471
MASS PROJECTS
LIMITED v STANDARD CHARTERED
BANK & OR (REVIEW MOTION NO.
J7/4/2014) delivered on 18th
of December 2013.
REVIEW MOTION
No. J7/2/2014 intituled: ABED
NORTEY v AFRICAN INSTITUTE OF
JOURNALISM AND COMMUNICATION & 2
OTHERS, dated 23/10/2013
REVIEW MOTION
No. J7/3/2014 PATIENCE ARTHUR
VRS. MOSES ARTHUR 4/02/2014
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANIN-YEBOAH JSC:
COUNSEL
MRS. NANCY
AMARTEIFIO LED BY MR. KOFI
SOMUAH FOR THE
RESPONDENT/APPLICANT .
MR. CHARLES
HAYIBOR, RICHARD BOBISON FOR THE
APPLICANT /RESPONDENT.
R U L I N G
ANIN-YEBOAH JSC:
The applicant herein has invoked
our jurisdiction under Article
134(b) of the 1992 Constitution
to reverse the ruling of our
brother Akamba JSC who exercised
the jurisdiction of this court
as a single justice by virtue of
Article 134(a) of the same
Constitution.
To appreciate the basis for this
application, a brief summary of
the facts culminating in this
ruling would suffice.
FACTS
On the 1/08/2013, the respondent
herein filed a motion before
this court headed as follows:
“MOTION ON NOTICE FOR AN INTERIM
INJUNCTION OR SUSPENSION OF THE
ENFORCEMENT OF JUDGMENT”
As expected in matters in
execution of judgments, the
application was opposed by the
applicant herein. The basis for
the application was that the
applicant herein in a High Court
[Land Division, Accra] suit
intituled: SUIT NO. IRL/167/2010:
ZOOMLION GHANA LIMITED v
MERSKWORLD GHANA LIMITED,
was on the 9/04/2013 adjudged by
the said High Court to recover
various sums of money from the
respondent herein. The
respondent lodged an appeal
against the judgment at the
Court of Appeal, Accra. It
appeared that on 24/04/2013, the
High Court was by a motion
invited to stay execution of its
judgment. The court dismissed
the application and therefore
paved way for execution to
proceed. Not satisfied with the
order of the High Court, the
respondent herein repeated the
application for stay of
execution at the Court of
Appeal, Accra. On 20/05/2013,
the Court of Appeal granted the
motion for stay of execution in
the following terms:
“BY COURT: This
application for stay of
execution of GH¢17,581,010 of
damages is granted in the
following terms:
(1)
The
plaintiff/Appellant/Applicant
shall vacate the land fill site
at Sawbah forthwith if has not
done so yet.
(2)
The
Plaintiff/Appellant/Applicant
shall pay into court 50% of the
judgment debt pending the final
determination of the appeal.
This payment shall be made
within 30 days from the date
hereof.
(3)
The sum paid shall be invested
by the Registrar in a good
interest yielding investment.
(4)
Failing the payment into court,
this order of stay will be
deemed vacated.”
The respondent herein felt
aggrieved by the orders of the
Court of Appeal as it considered
the orders as onerous and
therefore lodged an appeal to
this court on several grounds to
set aside the ruling of the
Court of Appeal, especially the
order for payment of 50% of the
judgment debt of GH¢17,588,010
into court within thirty days.
It must be made abundantly clear
that the appeal to this court
filed on 6/06/2013 against the
motion for stay of execution was
not an appeal against the
substantive judgment delivered
by the High Court. It was solely
an appeal against the motion for
stay of execution which
according to the respondent was
granted by the Court of Appeal
on onerous terms and therefore
amounted to a refusal.
The respondent by virtue of the
pending appeal before this court
against the grant of stay of
execution filed a motion for
stay of execution at the Court
of Appeal. For a more detailed
record the Court of Appeal after
hearing the application ruled as
follows:
“BY COURT:
We have seen all the papers
filed in this application. We
have also heard counsel for and
on behalf of the parties. This
application is pursuant to an
appeal filed above. We are
keenly aware that this matter is
effectively out of our hands.
That notwithstanding, we are not
being asked to review our
earlier order. That being the
case since our previous order is
not executable we shall refuse
this application. It is
accordingly refused.”
The respondent thereafter
invoked this courts’
jurisdiction not by way of
repeating the application for
stay of execution which the
Court of Appeal refused, but by
praying this court for the
following reliefs:
“MOTION ON NOTICE FOR AN INTERIM
INJUNCTION OR SUSPENSION OF THE
ENFORCEMENT OF JUDGMENT.”
In the affidavit in support of
the motion, it appeared for the
first time in the history of the
case, that the respondent herein
was raising the issue of
non-service of hearing notice.
The respondent had indeed
conducted a comprehensive search
at the High Court and annexed
same to bolster its case that
hearing notices which ought to
have been served in compliance
with section 263(1) of the
Companies Act (Act 179) of 1963
was flouted.
The application was listed
before our brother as the single
justice to exercise this court’s
jurisdiction under Article
134(a). Upon hearing parties on
the 7/11/2013, our esteemed
brother said as follows:
“The Applicant has raised
sufficient grounds for due
consideration for the grant of
the present application in the
light of a breach of the rules
of natural justice. As to the
Respondent’s argument that this
court lacks the competence to
grant the application, I wish to
refer to such cases as
Merchant Bank Gh. Ltd v
Similar Ways Ltd [2012] 1
SCGLR 440 and Standard
Chartered Bank (Gh) Ltd v
Western Hardwood Ltd [2009]
SCGLR 196 to state that in
appropriate cases, this court
has the power to grant reliefs
such as the Applicant seeks. I
am satisfied that the present
application is an appropriate
case to warrant the grant of an
order to suspend the enforcement
of the judgment of the High
Court delivered on 9th
April, 2013 which I hereby do,
pending the outcome of the
appeal before this court.”
The applicant herein, aggrieved
by the order above has invoked
our jurisdiction under Article
134(b) of the 1992 Constitution
and Rule 54 of CI 16 for an
ORDER TO REVERSE THE DECISION
delivered on the 7/11/2013. In
our respectful opinion this
application was for review of
the decision of the single
justice.
PRELIMINARY OBJECTION
In his statement of case
opposing this application,
learned counsel for the
respondent has raised a
preliminary objection as to the
jurisdiction of this court to
entertain this application. In
paragraph 34 of the statement of
case, counsel stated as follows:
“The present application cannot
qualify as one for review
properly so-called because
although rule 54 of CI 16 states
that the court can review any
decision made or given by it
(and the court is duly
constituted by a single justice
thereof), that provision
contained in a subsidiary
legislation, cannot override the
clear Constitutional provisions
of Article 133(2) as the
composition of the court when
hearing a review application
properly so-called and also the
clear provisions of Article
134(b), which spells out the
composition of the court to hear
an application brought under to
it to vary, discharge or reverse
a decision of a single justice
of the court. It is therefore
our submission that in so far as
the present application seeks a
review, relying on Rule 54 of CI
16, it is with respect,
incompetent because rule 54 of
CI 16, can only be referrable to
review applications pursuant to
Article 133 of the
Constitution.”
It was submitted that an
applicant proceeding under
Article 134(b) as in this
instant application cannot at
the same time apply for a review
of the decision of a single
justice delivered pursuant to
Article 134(a). A review within
the context of Article 133
therefore cannot be heard by
three justices of the Supreme
Court. The court can only hear
an application filed pursuant to
Article 134(b) and an applicant
who invokes Article 134(b) is
thus limited by the clear
wording of that Article as to
the specific type of application
that it can initiate - to vary,
discharge or reverse the
decision of a single justice and
nothing else, including a
review.
Learned counsel for the
applicant concedes that the
wording of Article 134(b) of the
1992 Constitution is clear, the
article however, fails to
stipulate the procedure to be
adopted. He is of the view that
in applying for the reversal of
the single justice, the
applicant in effect is seeking
this Honourable court’s
intervention by way of review of
the said ruling. He proceeded to
cite the case of Edusei No. 2
v Attorney-General
[1998-99] SCGLR 735 in which
Acquah JSC (as he then was)
said:
“an aggrieved person is entitled
to adopt the nearest reasonable
procedure of utilizing the right
accorded by law – a procedure
which must be such as to give
notice to the person or legally
authorized authority against
whom redress is sought and
afford to him or it an
opportunity of putting his side
of the case”.
Reference was also made to
MARIAM AWUNI v WEST
AFRICAN EXAMINATION COUNCIL
[2003-2004] SCGLR 471 in which
Date-Bah JSC pointed out the
relaxation of the rules at the
Supreme Court when it comes to
procedural flaws which do not
oust the jurisdiction of the
court so that the court can deal
with the case on the merits.
It was therefore submitted that
the applicant was entitled to
adopt a reasonable procedure
which could enable the Supreme
Court as well as the respondent
herein to appreciate the nature
of the applicant’s case.
In answering the objection posed
by the respondent, it must be
made clear that this court’s
jurisdiction under Article
134(b) is sparingly invoked and
therefore few cases have been
decided on it to offer
precedents to assist this court.
The most recent decision which
my illustrous brother Dotse JSC
delivered was in the unreported
case of MASS PROJECTS LIMITED
v STANDARD CHARTERED BANK &
OR (REVIEW MOTION NO.
J7/4/2014) delivered on 18th
of December 2013. The court had
to decide whether failure on the
part of an applicant to file a
statement of case in
applications for review under
Article 134(b) of the 1992
Constitution, should not render
the application a nullity. A
similar objection was raised
earlier in an unreported
application for review in REVIEW
MOTION No. J7/2/2014 intituled:
ABED NORTEY v AFRICAN
INSTITUTE OF JOURNALISM
AND COMMUNICATION & 2 OTHERS,
Coram Mrs. WOOD CJ, (presiding),
Dotse and Baffoe-Bonnie JJSC
dated 23/10/2013. In both cases,
this court was firm and held
that lack of statement of case
in support of an application
brought under Article 134(b)
should not render the
application null and void. The
lack of rules governing or
regulating the jurisdiction
exercised under Article 134(b)
by CI 16 led my brother Dotse
JSC to express his well-thought
views in the MASS PROJECTS
LIMITED case, supra, which I
quote ad longum:
“Whilst our Supreme Court Rules
in Ghana are completely silent
on what procedure is to be
adopted and applied before a
single judge, the Gambian Rules
provide for, even if not
adequate, it is better than not
making any provision at all.
We believe it is this lacuna in
the Rules of Court that has led
to a number of such issues being
raised for non-filing of
statement of case in support of
an application to review
decisions of the single justice
of the court.
Even though in essence an
application under Article 134(b)
of the constitution is a review
application, it is to be
considered as a special review
application separate and
distinct from the review
application provided for in
Article 133 of the constitution
and in Rules 54 to 60 of CI 16.”
Like our brother Dotse JSC, we
are of the opinion that save the
different number of justices
that may constitute a Supreme
Court for review, under Article
134(b) and Article 133 of the
Constitution, the jurisdiction
exercised under both articles
are substantially the same. An
application to vary, discharge
or reverse an order, direction
or decision if successful would
certainly amount to review if
the application is granted by
the court. In my respectful
opinion, like our illustrious
brother Dotse JSC, it may be
said that applications under
Article 134(b) may be considered
as a special review application
as in substance it seeks to
vary, discharge or reverse a
ruling made by the court.
It is therefore constitutional
that this court as constituted
is competent to entertain this
review application. The
preliminary objection is thus
overruled.
BASIS FOR REVIEW
On the substantive matter, this
application has been argued well
in paragraphs 23-42 of the
statement of case. The applicant
herein complains that section
263(1) of the Companies Act, Act
179 of 1963 which was relied on
by the learned judge to grant
the application was inapplicable
under the circumstances.
It was also argued that several
hearing notices were indeed
served on the lawyer on record
to compel his attendance in
court which were ignored
therefore vesting the trial
court with no option than
striking out the suit for want
of prosecution to enable the
respondent to pursue its
counterclaim against the
applicant. It was pointed out
that the lawyer for the
respondent at the trial court
was present when the judgment in
respect of the counterclaim was
read in court.
After the judgment on the
counterclaim, the respondent as
judgment-debtor after lodging an
appeal filed a motion for stay
of execution at the High Court
and upon its dismissal repeated
same at the Court of Appeal.
Throughout, the respondent did
not raise the issue of
non-service or service contrary
to section 263(1) of Act 179.
It is very clear that the
respondent, whose case was
struck out for want of
prosecution at the High Court
(where it was the plaintiff)
never complained that it was
unaware of any notice for
hearing of its case or the
counterclaim that was prosecuted
by the applicant herein. Indeed,
that appeal was not the
subject-matter of the
application which was heard by
the single judge, whose ruling
is before us for review. The
evidence of non-service is being
raised for the first time in
these proceedings when the case
was before the single judge. The
complaint of the respondent is
against the service of the
hearing notice on its previous
solicitor.
At this stage, care must be
taken not to prejudice the
substantive appeal at the Court
of appeal by embarking on any
pronouncements of the law that
may pre-empt the appeal before
it is even heard. To us, this
issue of lack of service of
hearing notice in compliance
with the Companies Act, Act 179
of 1963 has never been part of
the respondent’s case but was
urged on the single judge as the
only ground for granting the
application which our brother
acceded to. The appeal against
the Court of Appeal’s ruling is
limited, indeed, to only the
refusal of the Court of Appeal
to grant the stay on favourable
terms but rather on onerous
terms. The case of TONY ADAMS
v ANANG SOWAH [2009]
SCGLR 111 offers enough guidance
on the limits of this court in
matters of such nature. Our
brother Atuguba JSC in the case
said as follows:
“It should be emphasized 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”
We consider the above
pronouncement of law by our
brother as very sound
proposition to guide us in
deciding matters of this nature.
Our jurisdiction is indeed very
limited. We think that our
learned brother as the single
judge did not, with due respect
to him, consider the limits of
his jurisdiction in dealing with
the application as he went
beyond it to consider a very
serious matter which the parties
themselves never raised in the
substantive appeal. The
submission of counsel for the
applicant on this point has not
already being canvassed at the
lower courts. He seeks to draw
this courts attention to
apparent error which if not
corrected would lead to
miscarriage of justice. See
Re KWAO (DEC’D) NARTEY v ARMAH &
OR [1989-90] 2 GLR 546 SC
and DARBAH v AMPAH
[1989-90] 2 GLR 103.
In our respectful opinion, the
error on the part of the single
judge is fundamental in nature
to constitute exceptional
circumstances to warrant our
review jurisdiction. In the very
recent decision of the court
which is unreported, that is,
REVIEW MOTION No. J7/3/2014
PATIENCE ARTHUR VRS. MOSES
ARTHUR 4/02/2014, CORAM: WOOD
CJ (MRS), OWUSU, DOTSE, YEBOAH,
BAFFOE-BONNIE, BENIN and AKAMBA
JJSC this court per Dotse JSC
after referring to virtually all
the authoritative pronouncements
on review came out with a road
map to review. We find that this
case falls squarely into the
circumstances in which our
review jurisdiction could be
properly invoked as the ruling
under review clearly resulted
into gross miscarriage of
justice.
We accordingly allow the
application and set aside the
ruling of the single judge dated
the 7th of November,
2013.
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME
COURT
(SGD) J. V. M. DOTSE
JUSTICE OF THE SUPREME
COURT
COUNSEL
MRS. NANCY AMARTEIFIO LED BY MR.
KOFI SOMUAH FOR THE
RESPONDENT/APPLICANT .
MR. CHARLES
HAYIBOR, RICHARD BOBISON FOR THE
APPLICANT /RESPONDENT.
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