The departure which must itself be departed from-Comment on the Supreme Court Decision of GHANA TELECOMMUNICATIONS CO. LTD & ANOR v ATTA VI.

A. Introduction:

1.       The decision of the Supreme Court [the Court] in the case of Ghana Telecommunications Company Limited & Anor v Atta VI [the Ogyeadom case] has left the courts and legal practitioners in a deeper state of confusion regarding the question: 

Whether the Court can entertain and grant an application for a stay of execution pending the determination of an appeal to the Court from a judgment of the Court of Appeal. 

2.       Interestingly, the Court in the Ogyeadom case expressed the hope that its decision:

“…will remove all the uncertainty about stay of execution and suspension of judgments related to such applications and enhance public confidence in … [the Court’s] ability to do substantial justice to parties.”[i]

3.       A Justice of the Court of Appeal[ii] in an article has welcomed the Ogyeadom decision and hailed it as ushering in a new dawn in the law and practice on stay of execution. He wrote in his concluding words as follows;

“One therefore hopes that the pouring of new wine applications for grant of stay of execution in future would not be diluted with the old wineskin of suspension of orders and stay of proceedings of execution for any ruinous effect as orders coming from the courts. We cannot think anew and still cling to what is now old forms and traditions as well the things that have fallen apart. Ogyeadom has made things new”.[iii] [Emphasis Supplied].

4.       Others, however, disagree with his Lordship’s view. In another article,[iv] a learned writer took the view that it is the separate opinion of Justice Pwamang[v] which was the better judgment and truly represents the state of the law. In his judgment, Justice Pwamang maintained that the distinction between the two types of judgments remains and must remain our law.  

5.       This writer submits that the Ogyeadom case could never, as perceived by the Court, have settled the question whether or not the Court is jurisdictionally competent to entertain and grant an application for stay of execution pending the determination of an appeal to the Court from a judgment of the Court of Appeal. In effect this writer also disagrees with the Ogyeadom decision for reasons to be stated subsequently in this paper.

B. Facts of the Ogyeadom case.

6.       The facts to be recounted are extracted from the judgment of Gbadegbe JSC who delivered the main judgment of an enhanced panel of the Court as stated in the law report [2017-2020] 1 SCGLR 1090.[vi] The applicant appealed to the Supreme Court against the judgment of the Court Appeal which dismissed the applicant’s appeal to the Court of Appeal from the judgment of the High Court. 

7.       On the back of the appeal to the Supreme Court, the applicant filed an application for stay of execution of the Court of Appeal judgment pending the determination of the applicant’s appeal by the Supreme Court.[vii] 

8.       It is important to note here that although the decision under discussion focused and concentrated on applications for stay of execution and gives the impression that the application before the Court was for stay of execution, an examination of the processes on which the Court gave its decision will reveal that the application before the Court was for suspension of the judgment or injunction against its execution. This is pointed out by Pwamang JSC in his separate judgment.[viii]

9.       Be that as it may, the Court of Appeal granted the applicant’s application on terms which the applicant deemed onerous and amounting to a refusal. The applicant therefore repeated its application before the Supreme Court under Rule 20 of the Supreme Court Rules, 1997 (C.I. 16). 

10.     The Court granted the application. It is the concluding words of Gbadegbe on the application which encapsulate the controversy that the decision has ignited. The learned Justice concluded with the following words: 

“In particular, an order of stay of execution is granted in respect of the judgment of the High Court, Agona Swedru dated 10 May 2017.”[ix] [emphasis added]

The concluding part of the judgment of Gbadegbe JSC is what must raise the eyebrows of the practitioner. 

11.     Before proceeding with this discussion, the writer emphasizes three points which emanate from the orders of the Court as stated in the judgment of Gbadegbe JSC. These points are that the application:

• was made on the back of an appeal against the judgment of the Court of Appeal [not the High Court] to the Supreme Court.[x]
• invoked the Court’s jurisdiction “under rule 20 of the rules of the Supreme Court”.[xi]
• was “an application …[related to] the judgment of the Court of Appeal…”[xii]

The undisputed facts above set out provide the premises for the analysis of the judgment of the Court in Ogyeadom.

C. Issues raised by the Ogyeadom application.

12.     The issues raised in the application for determination by the Court were stated by Pwamang JSC in his separate judgment.[xiii] The learned Justice stated the issue that confronted the Court thus:

“…by what authority can the court entertain an application for stay of execution of a judgment that is not directly on appeal before the court. A related question is whether the court can stay execution of a non-executable judgment of the Court of Appeal.”[xiv] [emphasis added]

13.     Flowing from the facts recounted and the issue identified by Pwamang JSC the questions that arise from the judgment of the Court are the same as those that have always confronted the Court. These issues are:

1. As the application before the Court was made against the judgment of the Court of Appeal and not the judgment of the High Court, does the Supreme Court have jurisdiction to make any orders directed at the judgment of the High Court in the exercise of its appellate jurisdiction which relates to the judgment of the Court of Appeal?
2. As the application before the Supreme Court was made on the basis of rule 20 of the rules of Supreme Court which allows the Court to entertain repeat applications from the court below which is the Court of Appeal, does the Court have jurisdiction in the exercise of its power under the said rule 20 to grant orders directed against the High Court which is not the court below within the meaning of rule 20 of the said rules?
3. If the application before the Court was an application for suspension or injunction against the execution of the High Court judgment, how did the Court end up granting “an order of stay of execution… in respect of the judgment of the High Court” which was not applied for?[xv]

14.     It is submitted that the issues above set out ought rather to have been the direct focus of the Court rather than the question whether the judgment is executable or non-executable. The question whether the judgment is executable or non-executable although relevant was not the key issue round which the application before the Court revolved. That issue was secondary to the crucial issue whether the Court had jurisdiction to entertain the application. This was pointed out by Pwamang JSC who stated that the question whether or not the judgment is executable, was “a related question”.[xvi]

D. Judgment of the Court.

15.     As already noted, Gbadegbe JSC in whose judgment five of his colleagues concurred, admitted that the application leading to the judgment of the Court under discussion was made on the back of an appeal from the judgment of the Court of Appeal.

16.     It has also been noted that the learned Justice further admitted that procedurally the application was made pursuant to rule 20 of the rules of the Court which empowers the Court to hear applications for stay of execution pending the determination of appeals against judgments of the Court of Appeal.

17.     Credit to Gbadegbe JSC, he also admitted that it is:

“…there has been a collection of cases… which preclude the court from exercising its jurisdiction to grant stay of execution in cases which come before it in the exercise of its appellate jurisdiction where the decision of the Court of Appeal made no executable orders…”[xvii] [emphasis added]

18.     The Court however held that the decisions which held that the Court was jurisdictionally incompetent to grant orders staying execution of judgments which were not on appeal to the Court in the exercise of its appellate jurisdiction were in error. The Court justified its decision for reaching this conclusion on three main grounds.

i. Article 129(4) Powers 

19.     First the Court held that its power to entertain and grant stay of execution of judgments which are not before it in the exercise of its appellate jurisdiction can be justified by what it described as its wide powers under article 129(4) of the Constitution. The Court thus held in the following words:

“Examining the decisions closely, one is compelled to reach the view that the learned justices failed to take advantage of the powers conferred on it under article 129(4) to develop a rule that will avoid the hardships brought upon parties by the strict adherence to the decision in a collection of cases that deny jurisdiction in the Court. Had the learned justices carefully read the provisions of article 129(4), they would have noted that it conferred a wide discretion on them…”[xviii] [emphasis added]

20.     The Court held that:

“As the said decisions did not correctly apply the power conferred on the Court under article 129 (4) of the Constitution, they were delivered per incuriam and need not fetter … [the Court in its] pursuit of seeking to bring certainty to the law in order to enhance the application of the principle of judicial precedent.”[xix] [Emphasis supplied]

ii. Interest of Justice Theory

21.     The second reason the Court stated for holding that it is jurisdictionally competent to entertain and grant orders staying execution of judgments which are not before them on appeal is that it is in the interest of justice to do so in order to preserve the integrity of the appellate process.[xx] The Court’s words were as follows:

“After carefully considering the matter before us and applying myself as best as possible, the view is reached that in appropriate cases, the ends of justice is better served even in cases where the judgment of the Court of Appeal is said to be merely executable by inquiring to an application for stay of execution on the merits.  This is because in its absence, parties would be left without a remedy…”[xxi] [Emphasis added]

22.     A reading of the Court’s decision will reveal that, the interest of justice theory was the main theme of the judgment. The Court acknowledged the interest of justice theory was a ground considered by the Court for determining previous applications for stay of execution pending appeal before the Court. 

23.     The Court held that the interest of justice approach:

“…. better serves… [the Court’s] function … [to ensure that the Court’s] would embody that which is envisioned as the justice of the matter.”[xxii] [emphasis added]

24.     The Court also stated that:

“Based upon the said article, it is thought with respect to the learned justices of the Supreme Court who decided to the contrary that they did not fall upon the residual power of the court expressed in article 129(4) of the Constitution, which acknowledges that the powers of the Supreme Court might not be sufficient in all matters, so reserved to it a power that would enable it to do justice in appropriate cases.”[xxiii][emphasis supplied]

25.     The Court explained, and I take the liberty of quoting it extensively as follows:

“While an appeal is pending for determination, it is in accord with fairness and in particular, process integrity that nothing be done … rendering the victory on appeal nugatory. 

What this portrays is that when a court is confronted with an application for stay of execution , its main focus should be to delicately balance the competing rights of the parties under the judgment on appeal such that a reasonable onlooker apprised of the facts  can say that the decision of the court on the application was  a just one and not one that keeps people wondering whether in the circumstances there is any purpose in  exercising the constitutional right to appeal from a decision of the Court of Appeal to the ultimate court. There can be no doubt that the application of the decisions which deny jurisdiction to the Court may have had dire consequences on appellants who having lost in the two lower courts succeeded before the Supreme Court only to be faced with a pyrrhic victory; the very mischief that the relief of stay of execution pending appeal was developed to avoid.”[xxiv]

26.     The Court explained this point by reference to the inherent power of the courts to stay of execution and held that this inherent jurisdiction was developed from the need to do justice. The Court held that it is in the interest of justice in some instances to order the stay of execution of a judgment in order to preserve the integrity of the appellate process. 

iii. Case Distinguishable from previous cases

27.     The Court also held that the circumstances which confronted the Court are quite distinguishable from the ones which confronted the Court when it declined to hear applications for stay of execution on its merits for want of jurisdiction. I deduce this from the following words of the Court:

“As the matter before us relates to a direct attack on the judgment as distinguished from a collateral attack on the integrity of the judgment, in approaching the application herein, it is important that this distinguishing feature is borne in mind. This distinguishing feature renders it different from the situation that faced the court in some of the cases to which reference has been made earlier in this delivery, which were based on collateral attacks on the judgment on which the applications were founded. In collateral proceedings, a separate process is taken to challenge the integrity of a judgment such as an application is brought to set aside a judgment or in judicial review applications.”[xxv] [Emphasis added]

E. Questioning the Rationes decidendi of the Ogyeadom case.

28.     Given that the case was decided based on three main distinct points, the question that must agitate the mind of the practitioners is this: which of these three principles should be taken as the one on which the Court decided the case?   It has been held that:

“The ratio decidendi is the only binding part of a case, and the ratio decidendi is a rule of law which a judge considered necessary for his decision…”[xxvi]

29.     The writer submits that it is easy from a first reading of the decision to note that the judgment has no discoverable ratio. The unfolding discussion will illuminate this point. 

30.     As already pointed out the Court held that its predecessors did not “carefully read the provisions of article 129(4) …”[xxvii] and also “did not correctly apply the power conferred on the Court under article 129 (4) of the Constitution”.[xxviii] The Court reinforced this position and indeed “ventured” the opinion that:

“…had the learned justices of the court resorted to the said constitutional provision, they would have been provided with an alternative reasoning that would have produced a more just result.”[xxix]

The following observations and criticism can be raised on these points. 

i. No attempt to Interpret Article 129(4)

31.     A reading of the judgment will reveal that the Court made no attempt whatsoever to demonstrate directly from the text of the said constitutional provision how the provision should have been read, considered and applied by its predecessors. The Court reached this conclusion only after alleging that its previous decisions did not “carefully read” and had not properly “applied” the constitutional provision. 

32.     The direct question the Court was called upon to answer first was whether the Court could entertain an application to stay execution of the judgment of a court which is not directly on appeal to the Court, in this case, the High Court. It is in this context that Pwamang JSC stated that the issue that confronted the Court is; 

“…by what authority can the court entertain an application for stay of execution of a judgment that is not directly on appeal before the court.”[xxx]

33.     The answer to this unambiguous question cannot be found in a circumlocution outside the text as rendered in the Constitution. The Court held that it had power under article 129 clause (4) of the Constitution to entertain the application without any attempt whatsoever to directly interpret the provisions of article 129(4) of the Constitution. 

34.     To begin with the Court decided the compass of the case by setting it out thus:

“The task before us in these proceedings is to determine which of the varied approaches to stay of execution pending appeal is more preferable as representing what may be described as the justice of the matter.”[xxxi]

35.     To determine which of the varied approaches to stay of execution pending appeal is preferable, the Court could not have avoided demonstrating how each of the varied approaches decided how the constitutional provision should be interpreted. The Court, however, did not discuss how each of the previous decisions of the Court interpreted the constitutional provision and how each was wrong or right before stating its own position and laying it down as that which has now straightened the path.

36.     A reading of the judgment will disclose that although the constitutional provision was at the heart of the discussion, the Court started by discussing cases like NDK Financial Services Ltd v Yiadom Construction and Electrical Works.[xxxii]Merchant Bank (Ghana) Ltd v Similar Ways Ltd,[xxxiii]Golden Beach Hotels (Ghana) Ltd v Pack Plus International Ltd[xxxiv] and Standard Chartered Bank (Ghana) Ltd v Western Hardwood Ltd[xxxv]. Right after discussing the said cases and without reference to the constitutional provision whatsoever the words “which fell from the lips of the”[xxxvi] Court are as follows:

Had the learned justices [in those cases] carefully read the provisions of article 129(4), they would have noted that it conferred a wide discretion on them in the following words:

“For the purpose of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purpose of any other authority, expressly or by necessary implication given to the Supreme Court by the Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by the Constitution or any other law.”[xxxvii]

37.     It is after doing this that the Court started its effort at interpreting the constitutional provision. The Court however did not confront the text of the constitutional provision. The Court started by reference to the origin of the civil practice involving applications for stay of execution as traced by the learned editors of Halsbury’s Laws of England. before it.”[xxxviii] It is after this needless excursus into the origin of stay of execution that the Court stated its approach to interpretation of the constitutional provision thus: 

“…from the premise that stay of execution was developed from the inherent jurisdiction of the Court…by which the court seeks to do justice to parties who appear before it.”[xxxix]

38.     From the excursus into the origins of stay of execution, the Court discussed the nature of the appeal process and then referred to the NDK Financial Services Ltd case and reached the conclusion that the Court has always thought it necessary to intervene and grant a stay of execution in the interest of justice. The Court then held that the interest of justice principle for determining applications for stay of execution:

“is more preferable as representing what may be described as the justice of the matter.”[xl]

39.     The first question to ask in so far as the premise from which the Court commenced its enquiry is concerned is this: 

what rule of interpretation justifies interpretation from the premise set out by the Court? 

As already submitted, although the Court referred to the several decisions of the Court referred to supra, the Court never made any attempt to demonstrate how those decisions interpreted and applied the provisions of article 129(4) of the Constitution. It is therefore submitted that not having discussed the interpretation of the constitutional provision by the previous authorities the conclusion that “the learned justices [in those cases did not] carefully read the provisions of article 129(4)” denies the Ogyeadom decision itself any valid legal foundation.

40.     As the Court thought its previous decisions on the article wrong because its previous decisions thought their power under the said article restricted and narrow, it is not too much to ask the Court why it did not set out the interpretation the Court placed on the article in its previous decisions and then point out the error in the previous interpretation and then proceed to proffer the proper or better interpretation to be placed on the article. A direct interpretation of the constitutional provision under discussion with a comparative analysis of the earlier interpretation would clearly have demonstrated the error in the previous interpretation.

ii. Poor Interpretation of Article 129(4)

41.     Assuming, without admitting, that there was an interpretation done, then the writer respectfully submits that the Court very poorly interpreted the constitutional provision. It is submitted that the Court did not directly confront the words by which the provisions of article 129(4) of the Constitution was couched with a view to assigning meaning to it. The Court reached its conclusion by partially quoting the constitutional provision. The Court only referred to the last part of it[xli] which ends in the following words:

“… the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law.”

42.     With all due respect to the Court the part of the constitutional provision above quoted cannot and ought not to be read in isolation from the whole of the provision that it forms a part of and the other relevant parts of the Constitution which it clearly refers to by implication. The reader’s indulgence is craved to repeat the full text of article 129(4) of the Constitution once more to assist in making the point. It says:

“For the purpose of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purpose of any other authority, expressly or by necessary implication given to the Supreme Court by the Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by the Constitution or any other law.” [emphasis supplied]

43.     One of the most basic rules of interpretation is that statutes must be read as a whole.[xlii] In this instance, the writer did not expect the Court to read the whole of the Constitution to find the meaning of article 129(4) of the Constitution. At the very least, the Court should have read the whole of the constitutional provision under discussion and assigned meaning to it but not selectively read it and then assign meaning to the selected part. 

44.     The Court’s approach to interpreting the article therefore clearly rendered it unacceptable to have suggested that the justices in the previous decisions had not carefully[xliii] appreciated the constitutional provision under discussion. 

45.     Finally, and quite unacceptable is the fact that the Court had in a previous decision held clearly that the Court’s wide powers are properly exercised where the Court exercised its supervisory jurisdiction. This was clearly stated in the case of International Land Development Limited v ADM Cocoa Ghana Limited.[xliv]

46.     In the case just cited, the Court referred to a paper written by Dotse JSC who interestingly was a member of the Ogyeadom panel. The learned Justice’s paper was presented to the Ghana Bar Association at its annual conference held at Ho on 13 September 2013. It is entitled Executable-Non Executable Orders-The Predicament of the Judgment Debtor in Staying Execution Pending Appeal. 

47.     In his paper, Dotse JSC referred to the rare circumstances in which the Court had exercised its power to stay execution of justice in the interest of substantial justice and cited as an example his decision in the case of  Republic v High Court Kumasi; Ex parte Bank of Ghana & Others (Sefa & Asiedu Interested Parties) (No.1); Republic v High Court, Ex parte; Bank of Ghana & Others (Gyamfi & Others Interested Parties) (No.1) (Consolidated)[xlv] which was decided in the exercise of the Court’s supervisory jurisdiction.

48.     Concluding the discussion on Justice Dotse’s paper, the Court in the International Land Development case specifically noted of the Court’s wide powers to grant applications for stay of execution in the exercise of its wide powers under its supervisory jurisdiction as follows:

“However those powers were exercised under the supervisory jurisdiction of this court whereunder this court has very wide powers, as explained by this court in several cases, under article 132 of the constitution…”[xlvi]

49.     This suffices to deal with the Court’s supposed wide powers. The discussions so far establishes that the Court did not demonstrate how it reached its conclusion that article 129(4) gives the Court any wide powers

- No Specific rule of Construction Cited. 

50.     Further, the Court did not draw the attention of practitioners to any specific rule of construction it relied on to reach its understanding of the constitutional provision. The first and indeed the only rule of interpretation is the literal, grammatical or ordinary meaning rule, the rest being default or secondary rules to be deployed only where the first rule fails us. As this comment is focused on interpretation, the debate about the role of the rule just discussed will be waived and abated here. Suffice it, however, to just refer to the case of Republic v High Court, Accra Ex parte; Paa Kwesi Yalley (Francis Gyane & Anor-Interested Parties)[xlvii] where Wood CJ held as follows:

“It is well established, that as a general rule, the correct approach to construing statutes is to move away from the literalist, dictionary, mechanical or grammatical to the purposive mode. Admittedly, there may be instances where the ordinary or dictionary or grammatical meaning of words or phrases yield just results and there remains little one can do about that. Even so, it can be said that the purposive is embedded in the grammatical. In other words, the ordinary meaning projects the purpose of the statutory provision and so readily provides the correct purpose-oriented solution.”[xlviii]

51.     Applying the literal rule of interpretation to the constitutional provision above quoted, it is noted that the opening sentence of the constitutional provision says that the provision deals with the Court hearing and determining matters within the jurisdiction of the Court.   The meaning of the rule cannot therefore be determined by pretending that the opening part of the rule does not exist and then jumping to the end and falling on the part which says the Court has “all the powers, authority and jurisdiction vested in any court established by the Constitution or any other law”. 

- Link between Jurisdiction and Powers of the Court.

52.     It has been held that the Court has five types of jurisdictions: namely, original, appellate, review, supervisory and reference jurisdiction. Each of these various jurisdictions are invoked in the appropriate situations. None of them complements the other or is an appendage to the other. Indeed, they can be described as mutually exclusive of each other. One cannot invoke an original and appellate jurisdiction at the same time; neither can one invoke an appellate and supervisory or review jurisdictions at the same time. So also, one cannot invoke reference and original jurisdiction at the same time. Each is designed for a particular purpose and regulated by a certain procedure.[xlix]

53.     It is submitted that the latter part of Article 129(4) is linked to the opening part which makes it clear that the exercise of the supposed wide powers of the Court under the constitutional provision are those necessary and required for “the purpose of hearing and determining a matter within its jurisdiction”. This means that the jurisdiction of the Court is directly linked to the exercise of any of the powers it may exercise in relation to any matter before it. This is the plain meaning of article 129(4) of the Constitution. 

54.     In the exercise of its supposed wide powers therefore, it is the specific jurisdiction it exercises which determines the nature of the powers, authority and jurisdiction of any of the other courts of the land which may be applied.

55.     The Ogyeadom decision arose in the context of the Court’s appellate jurisdiction. The Court’s appellate jurisdiction is expressly provided for in article 131 of the Constitution. It provides that the Court’s appellate jurisdiction is properly invoked in respect of: judgments of

1. the Court of Appeal [as of right] where the Court of Appeal has determined a matter on appeal to the Court of Appeal from a judgment of the High Court; or 
2. a court lower than the High Court with leave; or
3. with leave of the Court itself in special circumstances.
4. The High Court in relation to arising from the conviction or otherwise of a person for offence of high treason or treason. 
5. decision of the Judicial Committee of the National House of Chiefs.

56.     It is clear from this constitutional provision therefore that judgments of the High Court can never be the subject to the Court’s appellate jurisdiction. The only judgments of the High Court that may properly be before the Court are those judgments which are the subject of applications invoking the Court’s supervisory jurisdiction. The Court itself acknowledged that the application for stay of execution before the Court arose from an appeal to the Court from a judgment of the Court of Appeal.[l]

- Correct Interpretation of Article 129(4).

57.     What therefore may be deemed as the correct meaning of Article 129(4)? The meaning of the article is that where the Court is minded to have recourse to article 129(4) in the course of hearing and determining a matter, it must first of all consider whether such a matter is properly within its jurisdiction before deciding whether it has such wide powers. It is submitted that in terms of article 131 of the Constitution, the Court has no appellate jurisdiction over judgments of the High Court. 

58.     Having regard to the discussion so far, it is clear that the Court’s supposed wide powers under article 129(4) can only be determined relative to its substantive jurisdictions already discussed above. In this particular case, it is the appellate jurisdiction of the Court which must determine what is within the Court’s jurisdiction to enable the Court exercise its supposed wider powers under article 129(4) of the Constitution. 

59.     Pwamang JSC confirmed this point in his separate judgment thus:

“Therefore, in my view, it is the appellate jurisdiction of the Supreme Court conferred by Article 131 of the Constitution and Section 4(1) of the Courts Act, 1993, (Act 459) that is the source of authority for the court to hear and determine the substantive appeal as well as any interlocutory matter related to it. This jurisdiction is activated on the filing of the notice of appeal and it gives the court authority over the res or subject matter of the case which in this case is the damages claimed by the respondent. We may say that it is the judgment of the Court of Appeal that is on appeal before the Supreme Court but the substantive jurisdiction of the court is actually over the res of the case. C.I. 16 only directs, regulates and organizes the appellate jurisdiction of the court but does not confer it.” [Emphasis added]

60.    It is submitted therefore that Court’s interpretation of article 129(4) was clearly wrong. It has no basis in the law of interpretation and was founded on two wrong premises; first that the previous decisions of the Court did not carefully consider the said constitutional provision when the said decisions, as will be shown subsequently actually better discussed the constitutional provision and secondly, based on a part reading of the constitutional provision and without any recourse whatsoever to the rules of interpretation.

ii. Rule 20 of the rules of the Court.

61.     It has also been noted that the application before the Court was made on the basis of rule 20 of the rules of the Supreme Court[li]. The rule provides as follows:

"20. Effect of appeal

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.”

- Wrong Interpretation of Rule 20.

62.     In its judgment, the majority of the Court discussed the appeal process.[lii] The Court held that by rule 20 of its rules, the Court of Appeal retained residuary jurisdiction to entertain applications after its judgment.[liii] The Court’s words in respect of the rule were that:

“…whiles in exercising jurisdiction after the dismissal of an appeal, the Court of Appeal but for rule 20 (2) of the Supreme Court Rules, would have been functus officio, it is able to determine applications for stay of execution and make orders in respect of judgments which relate to for example, in this case, monetary awards of the High Court…[it will be incongruous that the Court is] unable to exercise a power which they derive from the lodgment of an appeal to [the Court].”[liv]

63.     The writer respectfully submits that this position is legally wrong. Under the rule, the Court of Appeal has no power whatsoever whilst an appeal is lodged against its decision to grant an order staying execution of the judgment of the High Court pending the determination of an appeal lodged against the Court of Appeal’s judgment to the Supreme Court.

64.     In any event it is easy once again to note that the Court made no effort whatsoever to engage the provisions of rule 20 of its rules. The Court did not state the meaning of the rule before reaching this conclusion that the rule conferred jurisdiction on the Court of Appeal to stay execution of judgments of the High Court pending the determination of an appeal lodged against the decision of the Court of Appeal for determination by the Supreme Court.

65.     As happened in the case of article 129(4), the Court once again referred to several of its previous decisions which interpreted the said rule and took the view that the said decisions interpreted the rule “as limiting the court’s jurisdiction to entertain applications for stay of execution pending appeal to only applications in respect of judgment that is on appeal before the Court …[for which reason] where the judgment is not executable, the decisions maintain, the jurisdiction does not arise”[lv] without referring to how the previous authorities interpreted the rule.

66.     Be that as it may, the understanding that the previous decisions of the Court interpreted the rule to relate to the question whether the judgment sought to be stayed is executable or not is completely erroneous. It once again trivializes the fact that the question arises first in respect of the Court’s jurisdiction in which the procedural question of whether the judgment is executable or not is intertwined. 

67.     In the case of Anang Sowah v Adams[lvi] the Court held that the rule is not sui generis.  It is a carry over from earlier rules of the Supreme Court.[lvii] The Annang Sowah case pointed out that 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."[lviii] If therefore the judgment for which the application for stay of execution is not the judgment appealed against, the Court will not have jurisdiction to entertain the application. If the "judgment or decision appealed against" is not on appeal to the Court, the Annang Sowah case held, then the question of stay of execution does not simply arise.  This is because, the Court only has jurisdiction over "the judgment or decision appealed against". That is quite simple. It is in this context that the rule must be understood.

68.     Given the clear meaning of the rule, it is completely incorrect to say that the Court of Appeal has jurisdiction to entertain applications for stay of execution in respect of judgments of the High Court when the basis for the application is an appeal of the judgment of the Court of Appeal to the Supreme Court. This point undermines the conclusion in Ogyeadom that on the basis of the same rule the Supreme Court also has jurisdiction to entertain such an application.

69.     A reading of the case of Standard Chartered Bank Ghana Limited v Western Hardwood Limited And Another[lix] will reveal that the conclusion reached in the Ogyeadom case that the earlier cases thought their jurisdiction restricted by the rule is also not correct. In that case the Court referred to this modern era of functional or purposive justice to liberally interpret the word "proceedings" in rule 20(1) as referring to any steps that are required or are necessitated, and not merely occasioned, by the judgment appealed from[lx] but refused the application on jurisdictional grounds. 

70.     A reading of the two cases of Anang Sowah v Adams and Standard Chartered Bank v Western Hardwood Limited will reveal that it laid down three main principles:

1. First, where the application before the Court does not relate to a judgment which is the subject of the appeal then the Court has no jurisdiction to entertain the application for stay of execution.
2. Secondly and related to (i), where the judgment appealed against is not executable in the proper sense of it then an order to stay execution of that judgment which is not executable is pointless, and
3. Finally, the Court may however under the rule “stay proceedings” where the order sought is to suspend the steps that fall to be taken pursuant to the judgment appealed from such as in money claims where a writ of fi:fa might be prepared, notices posted on premises to be sold, auctioneer appointed, sale advertised etc it has power and it is appropriate for the Court to grant a stay of execution of proceedings.

- Nature of Appeals.

71.     Without reference to any rule, the Court also went into the subject of the nature of appeals and held that by virtue of the nature of the orders that the Supreme Court may make after hearing of appeals from the judgment of the Court of Appeal, it is proper entertain applications for convenience. 

72.     The point taken by the Court was that combined effect of articles 129(4) and 131 of the Constitution is that on an appeal to the Court from a judgment of the Court of Appeal, the Court assumes only the powers that the Court of Appeal could have exercised when it heard the appeal from the judgment of the High Court. 

73.     Accordingly, the Ogyeadom court held, as the Court of Appeal could have affirmed or dismissed and made any orders of its own in the determination of the appeal against the judgment of the High Court, the Supreme Court assuming the powers of the Court of Appeal under article 129(4) of the Constitution in the exercise of its appellate jurisdiction under article 131 of the Constitution may exercise the supposed wide powers of the Court of Appeal in determining the appeal against the judgment of the Court of Appeal which was properly placed to make orders affecting the judgment of the High Court. 

74.     Before proceeding further, let me state what will superficially seem like a gap in the logic propounded here. The question may be asked then that, if the Supreme Court may make orders affecting the final judgment of the High Court appealed against to the Court of Appeal, why then is it prohibited from making interlocutory orders in relation to the same High Court judgment? My answer is simple and it is articulated subsequently.

75.     Justice N.Y.B. Adade, a former Justice of the Court has written that the word interlocutory is rooted in two Latin words: inter (between), and loquor, loqui (to speak). Hence interlocutory will, from its roots, have something to do with “speaking between.” Similarly an interlocutory order will be an order “speaking between” but between the birth of an action and its demise, ie between the institution of an action and the final judgment determining that action.[lxi]

76.     Another former Justice of the Court[lxii] has written on interlocutory matters as follows:

“Interlocutory matters, as the expression signifies, are concerned with those matters done during the pendency of a law-suit and which are not final. The spectrum of these matters is very wide and may cover activities as the removal of a writ, substituted service, striking out and adding parties, ordering further and better particulars, striking out pleadings, amendment of pleadings, interlocutory proceedings from the summons level to the directions stage, discovery by interrogatories, discovery of documents, production of documents, etc.”[lxiii]

77.     Applications for stay of execution therefore deal with matters pending the final determination of a matter on its merits. In applications for stay of execution pending the determination of an appeal from the judgment of the High Court by the Court of Appeal, the order for stay of execution endures to enable the Court of Appeal determine the judgment of the High Court. After the determination by the Court of Appeal, the Court is completely functus in so far as the judgment of the High Court is concerned. The next level is the appeal against the judgment of the Court of Appeal to the Supreme Court.

78.     During the period when the appeal against the judgment of the Court of Appeal is pending for determination by the Supreme Court, the interlocutory applications are tied to the appeal against the judgment of the Court of Appeal but not the judgment of the High Court. In such applications, the interlocutory powers of the Court are directed against the judgment in respect of which the Court’s appellate jurisdiction is invoked, which is the Court of Appeal decision but not the High Court even if the final judgment of the Supreme Court may affect the High Court judgment. In the Ogyeadom decision therefore, the application for stay of execution was directed at the judgment of the Court of Appeal but not the High Court. It is in this context that the Supreme Court got its interpretation of rule 20 of its rules[lxiv] wrong.

79.     The question that is to be asked is this: in respect of which judgments does the Court of Appeal retain this residuary jurisdiction as stated in rule 20 of the rules of the Court? Is it the High Court judgment? The answer as already discussed is in the negative. In this context, Pwamang JSC in his judgment pointed out thus:

“Accordingly, to answer the question posed in GFA v Apaade Lodge, my view is that the jurisdiction of the Supreme Court to make interim orders touching and concerning the subject matter of an appeal including upon an application for stay of execution that falls outside Rule 20 derives from the general appellate jurisdiction of the Supreme Court conferred by the Constitution and the Courts Act. Rule 20 of C.I.16 is not the source of the court’s jurisdiction, it only regulates its exercise in terms of procedure. It must be noted that the rule does not even purport to confer jurisdiction on the court to make orders for stay of execution.”

80.     Having said that, it is hereby further submitted that the argument just made is completely different from saying that the determination of an appeal against the judgment of the Court of Appeal cannot affect the final judgment of the High Court. In the exercise of its appellate jurisdiction over judgments of the Court of Appeal which have determined judgments of the High Court, the Supreme Court has power to overturn the judgment of the High Court or affirm such judgments or make any consequential orders or directions in relation thereto. 

81.     From the submissions so far made, it is clear that the Ogyeadom court also got its understanding of the Rule 20 of the rules of the Court wrong.

iii. Interest of justice.

82.     It has also been noted that the Ogyeadom Court based its decision on the interest of justice. The Court noted that its predecessors had relied on the same interest of justice theory to grant applications for stay of execution which were contested on the grounds already discussed. A reading of the decision of the Court will reveal without a shred of doubt that the interest of justice is the foundation of the judgment of the Court[lxv]. Several passages in the Court’s judgment have already been referred to for purposes of demonstrating to this point. 

83.     It is submitted that the interest of justice cannot be the basis for the exercise jurisdiction over a matter and cannot be the basis for overturning a settled principle of civil procedure and practice.

84.     A reading of the decisions of the Court will however not reveal any clearly settled principles on what constitutes the interest of justice justifying ignoring the statutory structure and legal framework as well as established legal principles for stay of execution applications in the interest of justice. 

85.     Practitioners have therefore been left in a quandary regarding what specific fact situations meet the interest of justice theory of the Court and on which they can successfully mount an application for stay of execution without being reminded of the basic principles which regulate such applications. The reason is that just when a practitioner thought their application met the interest of justice threshold of the Court, the Court will reject the invitation to consider the application in the interest of justice and on many occasions disrespectfully remind counsel that he should have known that his application was incompetent in limine and not even have been brought before the Court in the first place.[lxvi]

86.     On the other hand, in the other situations or circumstances in which the Court thought that the interest of justice necessitated and justified shaking off the well settled legal principles for applications and orders for stay of execution and granted an application for stay of execution, some practitioners did not agree with the measure by which the Court decided that the otherwise bad application for stay of execution deserved favour, in the interest of justice. 

87.     The trite position of the Court has always been that the interest of justice cannot be resorted to in order to overcome a jurisdictional objection.[lxvii] Adade JSC made this point clear in the case of Essilfie and Others v Anafo and Others[lxviii] which the Ogyeadom Court referred to but overlooked the wise counsel of Adade JSC. 

88.     In that case, Adade JSC noted that there was a recourse to "the ends of justice."[lxix] He found this line of reasoning unacceptable and emphasized that the issue of law thrown up for decision in the case was whether the Court had jurisdiction to extend time. The learned Justice pointed out that "ends of justice" do not confer jurisdiction and that considerations of "ends of justice" arise only where the court has jurisdiction to deal with the matter in the first place. They enable the court to operate along a certain scale, within jurisdiction. Where a court has no jurisdiction, the gates to the facts are securely bolted against it; the court cannot look at the facts to apply any notions of "ends of justice.[lxx]

89.     It is submitted that the surest way of convincing stakeholders in the justice system that the interest of justice is served is to simply apply the tools established for dispensing justice that is to say the statutes and legal principles laid down for dealing with the point on which the matter turns rather than resort to the most nebulous interest of justice theory which has no standard and no test to which people can relate. It is this kind of situation that led to criticism of equity with the seventeenth century Jurist John Selden’s aphorism:

“Equity is a roguish thing: for law we have a measure, know what to trust to; equity is according to the conscience of him that is chancellor, and as that is larger or narrower, so is equity. ’Tis all one as if they should make the standard for the measure we call a foot a chancellor’s foot; what an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. ’Tis the same in the chancellor’s conscience.”

90.     From the discussion so far, it was always clear that that the Ogyeadom decision is on life support right from its date of birth. This is put beyond doubt when account is taken of the points made in the judgment of Pwamang JSC who delivered what is described as a concurring opinion but which in substance laid out a reasoning that does not and cannot fit into the logic of the main judgment of the Court.

iii. Executable and non-executable judgments.

91.     It was earlier pointed out that the question whether or not Court is jurisdictionally competent to entertain an application for stay of execution pending appeal, is usually intertwined with the question whether the judgment sought to be stayed is executable, although clearly distinguishable. The former is decided by a rule of substantive law whilst the other is decided by a procedural rule.  Unfortunately, the Ogyeadom Court overplayed the question whether or not the judgment sought to be stayed was executable above the jurisdictional question that confronted it. This view, is clearly simplistic. A statement of the issue that way as earlier pointed out, trivializes the fundamental question of jurisdiction. 

92.     The question whether or not a judgment is executable is only ancillary to the fundamental question regarding whether or not the Court is jurisdictionally competent to entertain and grant an application for stay of execution pending the determination of an appeal to the Court from a judgment of the Court of Appeal. Nevertheless, the question whether or not a judgment is executable cannot be treated perfunctorily as if it is a question of terminology. 

93.     Further, the concept of executable and non-executable judgments cannot be trivialized or reduced to absurdity or pretended about as some of their Lordships suggest that it is a mere case of nomenclature. Any such thinking loses elementary principles of civil procedure and practice. It is hereby emphasized that execution of judgments pertains to the domain of civil procedure and practice. This area of law is regulated in great detail by the civil procedure rules. All execution in our realm is based on the rules of execution which are statutorily provided for. It is therefore unpardonable to treat execution with convenience, or pure technicality or nomenclature. 

94.     Suffice it to say at this point that the concept of stay of execution is still constructed on specific statutory foundations. This is clear from a cursory reading of the statutory provisions of our rules of procedure which provide for execution. As it is statutorily founded, the law and practice on stay of execution will not and cannot be whittled away by the Ogyeadom decision which, properly read, will reveal that it was based mainly on the Court’s decision to do justice on the particular facts of the case rather than deliver justice in accordance with the jurisprudence on the subject.

95.     The law therefore will always remain that:

“…an application for stay of execution, presupposes that the order or decision in respect of which the stay is sought is capable of being executed by any of the known process of execution. If the order or decision is incapable of viewing executed, an application for stay of execution cannot be applied in respect of it.”[lxxi]

96.     It is submitted that until our rules of procedure are amended to make the writs of execution irrelevant any decision which suggests that the distinction between executable and non-executable judgments is not to be taken seriously will also not be treated seriously. 

iv. Previous cases are distinguishable.

97.     As earlier submitted, the Court also held that the previous cases must be distinguished from the case decided by the Court. The Court observed that in the earlier cases, there was a collateral rather than “a direct attack on the judgment” as in the Ogyeadom case. The Court therefore held that the fact that in the earlier cases, the appeals launched “a collateral attack on the integrity of the judgment” is the distinguishing feature.

98.     The Court observed in respect of the said distinction between the previous cases and the Ogyeadom case thus:

“This distinguishing feature renders it different from the situation that faced the court in some of the cases to which reference has been made earlier in this delivery, which were based on collateral attacks on the judgment on which the applications were founded. In collateral proceedings, a separate process is taken to challenge the integrity of a judgment such as an application is brought to set aside a judgment or in judicial review applications.”[lxxii]

99.     In the first place, if the conclusion reached by the Court that the previous cases on which the Court’s previous decisions were based are distinguishable from the Ogyeadom case is accepted as correct, then the writer finds no reason for the Court’s decision to depart from its previous decisions. The reason is that the previous decisions will then be correct as they turned on facts which are not applicable to the Ogyeadom case. This observation only permitted the Court to refuse to follow the earlier cases on the ground that there are “distinguishing feature[s]” between the earlier cases and the Ogyeadom case. 

100.   The ground above canvassed alone suffices to explode the Court’s argument that its decision to depart from the earlier decisions of the Court is based on the supposed distinguishing features between the earlier cases and the one the Court was presented with. 

101.   It is true that in some of the cases the appeals mounted were collateral rather than direct attacks on the judgments the subject of the applications for stay of execution. However, the Court’s own logic shoots down the argument made by the Court that the distinguishing features identified by the Court justifies the departure from the earlier decisions of the Court. 

102.   There are only two cases cited by the Court in which the distinguishing feature referred to by the Court can be identified. These are the cases of GFA v Apaade Lodge, and NB Landmark. In those cases, the appeals arose from applications to set aside default judgments. The default judgments were therefore the substantive and executable judgments. These substantive judgments were not appealed against. It was the courts’ refusal to set aside the default judgments which were rather appealed against. It is the reason why the Court said the appeals before them were collateral in nature to the judgment sought to be stayed. 

103.   The superficial nature of this distinguishing feature is made glaring when one considers the effect of direct attacks on the judgments appealed against to the Court and which the Court held, justified its intervention as the Court perceived it. The Court held that the previous decisions which withheld jurisdiction from the Court took a narrow view of the proceedings that transpired on the dismissal of the appeal. The Court held that the previous decisions failed to notice that the usual order made in such circumstances is expressed, for example as follows:

“Accordingly, the appeal fails and is dismissed. We proceed to allow the claims of the plaintiff as endorsed on the writ of summons before the High Court.”[lxxiii]

104.   This observation made by the Court applies in the case of collateral attacks on the judgments appealed against to the Court. The reason is that where an appeal against the judgment decision refusing to set aside a default judgment is allowed by the Supreme Court, it sets aside the default judgment against which there is no appeal. In the same way the order to be made in such circumstances is expressed, for example as follows:

“Accordingly, the appeal fails and is dismissed. We proceed to allow the claims of the plaintiff as endorsed on the writ of summons before the High Court.”

In substance there is no distinguishing feature.  

105.   In any event, it is completely untrue that in all such cases the Court must express itself in those words especially the words:

“We proceed to allow the claims of the plaintiff as endorsed on the writ of summons before the High Court.”

106.   Further, the additional words after dismissal of the appeal will be clearly wrong as the “writ of summons before the High Court” are not before the Court for determination. The Court is called upon to examine the judgment before the Court. If the judgment is sound the appeal is dismissed and the claims in the writ of summons are allowed as adjudged by the Court from which the appeal emanates. Proceeding to grant reliefs which have already been allowed by a judgment which has not been impeached by the Court is not only needless but superfluous. It is doubtful that Supreme Court can legitimately do that. 

v. Departure from the previous decisions of the Court.

107.   In the judgment of the Court, it held that:

“The time has come for us to embrace a new approach to our jurisdiction in applications for stay of execution from appeals dismissed by the intermediate appellate court.”[lxxiv]

108.   The Court however failed to advance a legally convincing basis for advocating the departure. After stating the grounds on which it thought it appropriate to entertain the application before the Court on its merits, the Court took the view that the previous decisions were erroneous and justified a departure from the earlier position of the Court that where a judgment is not before the Court on appeal, the Court is not jurisdictionally competent to stay execution of such a judgment. 

109.   The Court discerned two grounds for departing from its previous decisions. The Court held that it may depart from its previous decisions where the judgment is given per incuriam and secondly where the previous judgments of the Court on a point are conflicting.[lxxv] The cases cited by the Court on this point are the cases of Loga v Davordzi[lxxvi] and Essilfie v Anafo[lxxvii].

110.   The Court also stated that a third ground on which the Court may deploy its power of departure from its previous decisions is where it provides:

“…an avenue to shaping the course of the law to avoid perpetuating what is considered an error.”[lxxviii]

111.   The Court then held as follows:

“The benefit to be gained by the entire legal system by the correction of the error outweighs that to be gained by a strict adherence to precedent. Therefore, having demonstrated that the collection of cases to which clear reference has been made previously in this delivery were wrong in their application of the clear provisions of article 129 (4) of the Constitution, it is right to say that the time has come for us to chart a new journey by taking advantage of the enormous powers conferred on us by article 129(3) of the Constitution.”

112.   It appears from the judgment of the Court that the error the Court believed its previous decisions to have committed is that the decisions were “…delivered per incuriam” because “the said decisions did not correctly apply the power conferred on the Court under article 129(4) of the 1992 Constitution”.[lxxix]

The writer submits that the previous decisions of the Court were not per incuriam.

113.   In doctrine of stare decisis, a judgment is said to be given per incuriam where it has overlooked a provision of a statute or a binding decision of a court, such as would have affected the outcome of such a decision were it considered.[lxxx]  In this case however, the Court held that its previous decisions considered the meaning and effect of article 129(4) of the Constitution, although not carefully. The previous decisions of the Court were therefore not given per incuriam in the proper sense of it.

114.   What is considered as the leading statement of the principle of per incuram is that stated by Lord Evershed in the case of in Morelle v Wakeling[lxxxi]. In that case, the English Court of Appeal had to decide whether to follow its own previous decision given the same year. The learned Justice laid it down thus:

“As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided person incuriam must in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene M.R., of the rarest occurrence. In the present case it is not shown that any statutory provision is or binding authority was overlooked, and while not excluding the possibility that in rare and exceptional cases a decision may properly be held to have been per incuriam on other grounds, we cannot regard this as such a case. As we have already said, it is, in our judgment, impossible to fasten upon any part of the decision under consideration or upon any step in the reasoning upon which judgments were based and got say of it: ‘Here was a manifest slip or error’...”[lxxxii]

115.   It is clear from this definition, although not exhaustive that the previous decisions of the Court cannot be reasonably said to have been given per incuriam because the decisions were not given in ignorance or forgetfulness of article 129(4) of the Constitution or any previous authority binding on the Court. The reason is that Court itself conceded that the previous decisions of the Court considered article 129(4) of the Constitution but not carefully and correctly.

116.   Admittedly the Court has expanded this definition of per incuriam to cover situations where a court gives inadequate consideration to a statute or previous binding decision.[lxxxiii]

117.   It is submitted however that a reading of the previous decisions of the Court will confirm without a shred of doubt that the said decisions were given after a more thorough and thoughtful consideration. The said decisions were therefore not per incuriam article 129(4) of the Constitution and also rule 20 of the rules of the Court. The said decisions gave due and proper consideration to the said constitutional and statutory provisions.

118.   In the case of article 129(4) of the Constitution it has been the subject of the Court’s interpretation in several decisions. The Court has always made it clear that the said constitutional provision does not by itself create jurisdiction. It is the vehicle by which the Court exercises any of its constitutional and statuary jurisdictions. In the case of in Edusei (No. 2) v. Attorney-General[lxxxiv] Atuguba JSC held that article 129(4) is auxiliary to the Court’s jurisdiction but is not the fons et origo of jurisdiction over a matter over which it otherwise has no jurisdiction.[lxxxv]  The learned Justice spent time to explain the constitutional provision thus:

“To take one or two examples, in the exercise of its supervisory or appellate jurisdiction over a case concerning chieftaincy maters, this court may, particularly with regard to appeals, deem it necessary to make consequential orders concerning chieftaincy matters which it would otherwise not have jurisdiction to make.  But this provision cannot by itself clothe this court with original jurisdiction over chieftaincy matters.”

119.   The Court repeated this position in the case of Kwadwo Dankwa and 3 Others v AngloGold Ashanti Ltd[lxxxvi]where Pwamang JSC delivering the decision of the Court held as follows:

“It has been stated repeatedly by this court that Article 129(4) does not confer on the Supreme Court a distinct jurisdiction but that the powers given to the court in that provision are to compliment the court's jurisdictions as provided for in the Constitution or any other enactment…” [emphasis added].

120.   To the same effect are cases such as Republic v Duffuor[lxxxvii] where Atuguba JSC once again held that 

“It is plain that this provision confers the powers, authority and jurisdiction of other courts in aid of the exercise of this court’s own jurisdiction with regard to any matter.” [emphasis added]

121.   It is clear from the discussion so far that the departure advocated by the Court cannot be justified on the ground that its previous decisions either did not consider article 129(4) of the Constitution and also rule 20 of its rules or gave inadequate consideration to them.

vi. Shaping the Law on Stay of Execution.

122.   The Court held that another reason justifying its departure from its previous decisions is to shape the law. The discussion so far has revealed that the Court failed to shape the law. The Court clearly failed to interpret the relevant constitutional and statutory provisions on the matter and engaged in wild discussions that did not deal directly with the jurisdictional issues before the Court.

123.   Also, the ratio of the Court’s decision seems not to be patently discoverable. A reading of the case will not reveal the principle of law on which the case was decided. Is it the interest of justice, the per incuriam nature of its past decisions, inadequate consideration of the relevant constitutional and statutory in its previous decisions, or the indefensible argument that there should be no distinction between executable and non-executable judgments in considering applications for stay of execution which is the ratio of the Court’s decision?

124.   Although it may be said that the law and practice regarding stay of execution appeared quite unsettled before the Ogyeadom case, a close examination of the state of the law before the Ogyeadom decision will reveal that this is not entirely the case. The Ogyeadom decision exaggerated to put it mildly, the unsettled state of the law to a point of almost representing it. This is demonstrated by reference to the cases relied on by the Court to show that the state of the law is unsettled.

125.   In the Ogyeadom case, the Court used as one of its examples of uncertainty, the case of NDK Financial Services Ltd v Yiadom Construction and Electrical Works.[lxxxviii] This was clearly wrong because at the time the Court decided the case, the Court had expressly departed from this position in the case of Standard Chartered Bank (Ghana) Ltd v Western Hardwood Ltd.[lxxxix]Indeed the Court reiterated its position on the point in the subsequent decision of the Court in the cases Ghana Football Association v Apaade Lodge Ltd.[xc]

126.   It is also important to point out that the confusion alleged to have been caused by the isolated case of Merchant Bank (Ghana) Limited v Similar Ways Ltd[xci] was also put in its proper context in the case of Golden Beach Hotels (Ghana) Ltd v Pack Plus International Ltd.[xcii] In that case, Prof. Date-Bah JSC considered the earlier decisions of the Court in the cases of Standard Chartered Bank (Ghana) Ltd v Western Hardwood Ltd and Merchant Bank (Ghana) Limited v Similar Ways Ltd and explained as follows;

“In the wake of these two authorities, we think that this court needs to spell out the boundaries between orders for stay of execution and orders for suspension of the orders of courts below or for stay of proceedings (which have been construed by Atuguba JSC as including steps required to be taken pursuant to orders of the court below).  There is a risk of this court descending into a morass of sophistry, with applications for orders for stay of execution formulated as applications for suspensions of the orders of the court below or as applications for stay of proceedings.  Thus, the preconditions for a successful application for an order for suspension of the order of a court below or for the stay of proceedings (including execution processes) need to be spelt out clearly and authoritatively, otherwise the received learning on executable and non-executable orders would be rendered irrelevant.  Logically, the preconditions for triggering orders for suspension of orders of lower courts and stay of proceedings under rule 20 of CI 16 have to be stricter and narrower than those for an ordinary stay of execution.  Otherwise, this court is likely to wallow in a semantic morass.”

127.   Subsequently, the Court retraced its steps to the position that the Court is not jurisdictionally competent to entertain and grant an application for stay of execution pending the determination of an appeal to the Court from a judgment of the Court of Appeal which either dismissed or affirmed the judgment of the High Court. This is clear from the decisions of the Court in cases like International Land Development Limited v ADM Cocoa Ghana Limited[xciii]Regency Alliance Insurance Ltd v Sethi Brothers Ghana Limited[xciv] and Zoomlion Ghana Limited v Maersk World Company Limited.[xcv]

128.   A reading of the subsequent decisions of the Court on the matter shows clearly that there was hardly any controversy on the state of the law regarding stay of execution.[xcvi] The reason is that the NDK position had been clearly departed from by the Court and the Similar Ways situation was put in context in the case of Golden Beach Hotels (Ghana) Ltd v Pack Plus International Ltd.

129.   Indeed, the observation made by Dotse JSC in his paper presented to the Ghana Bar Association at its annual conference held at Ho on 13 September 2013 entitled Executable-Non Executable Orders-The Predicament of the Judgment Debtor in Staying Execution Pending Appeal quite embarrasses the Ogyeadom court because the Court completely misrepresented the learned Justice’s paper. It is even more embarrassing when account is taken of the fact that the panel included the learned Justice himself who but for the presence of the Chief Justice on the panel would have presided over it. In his paper, the learned Justice said:

“…cases where the court has taken some different positions all aimed at addressing the cardinal issues of justice”

130.   It is clear from the statement above quoted that the learned Justice considered the isolated cases when the substantial justice principle was relied on to entertain applications for stay of execution in the circumstances under discussion as aberrations.

131.   The observation above made in respect of Dotse JSC’s understanding of the Court’s position on the matters of the kind under discussion in this paper is put beyond doubt when account is taken of the aforesaid learned Justice’s statements made in the same paper. He wrote thus:

“From the facts of the Merchant Bank case, it appeared my respected brethren therein were confronted with peculiar facts and circumstances of that particular case and were desirous of ingeniously designing a legal proposition to manage the situation as a Court of last resort.  This practice is not uncommon, as it was done by us in the recent consolidated unreported case…” [emphasis added]

132.   The embarrassment is compounded by the fact that Gbadegbe JSC was a member of the panel in the International Land Development Limited v ADM Cocoa Ghana Limited case which referred to Justice Dotse’s aforesaid paper and right after quoting Justice Dotse’s words quoted supra added that those limited number of cases in which the Court relied on the substantial justice theory to entertain applications for stay of execution in the circumstances under discussion:

“…. have been gently criticized, refined and fine tuned by the decision of the Supreme Court in the case of Golden Beach Hotels (Ghana) Ltd v Pack Plus International Ltd…”

133.   In the light of these obvious facts, how could the substantial justice theory be the new theory on the basis of which a departure is founded. This statement is painfully made because the Ogyeadom court must have known that the substantial justice theory had been jettisoned by the Court as observed by Dotse JSC [a member of the Ogyeadom court] as stated in his paper referred to and also by the Court in International Land Development case in which Gbadegbe JSC who wrote the decision of the Ogyeadom court was a member.

134.   It is indeed interesting how the Ogyeadom court [which included Dotse JSC] could have relied on the paper written by Dotse JSC and the International Land Development Ltd and also the dissenting judgment of Pwamang JSC in the case of Regency Alliance Insurance Ltd v Sethi Brothers Ghana Limited[xcvii] as epitomizing the controversy because the two positions affirmed the traditional position of the Court. Dotse JSC clearly affirmed the traditional position and so also did the International Land Development case. 

135.   It must be pointed also that in the Regency Alliance Insurance Ltd case Pwamang JSC was in the minority and the Court [this time again including Dotse JSC] affirmed its traditional position by dismissing the application for want of jurisdiction. In respect of the NDK case, the least said about it the better. It is like citing a repealed statute to justify a submission.

G. Reforming the Law on Stay of Executions.

136.   It is suggested if there is good reason to reform the law on stay of execution, the Court could use the observations made in the cases of Golden Beach Hotels Limited and International Land Development as the foundation.

137.   In the Golden Beach case the Court held that the circumstances in which the Court deviated from its traditional position in the circumstances under discussion in this paper resulted from potential circumstances of nullity.

138.   Secondly, it is clear that parties faced with the circumstances under discussion are not without remedy. The remedy of injunction is available. In such a case the Court will be exercising jurisdiction ratione personae which the Court has power to exercise because the parties are subject to the jurisdiction of the Court being parties to an appeal before it, as opposed to jurisdiction ratione materia where the rest is outside the jurisdiction of the Court and within the purview of the High Court jurisdiction ratione materia.

139.   According to the authors of Halsbury’s Laws of England[xcviii] where property has been directed to be sold by decree, the court will sometimes stay the sale, in an application for injunction, pending appeal. They write that an injunction may be granted in aid of or in lieu of equitable execution.[xcix]

140.   The writer notes that the reason for which the concept of stay of execution whether of executable or non-executable judgments appears elusive results from the Court’s own sometimes, enthusiasm to salvage badly packaged applications. In so doing rather than acknowledge the procedural incompetence of the application before the Court and if need be, grant the appropriate order to ensure that the judgment debtor is not damnified by execution, and which the Court has power to do, resorted to unjustifiable legal analysis to avoid the well-established distinction between the types of judgments.

141.   Interestingly in the Ogyeadom case itself counsel’s application was suspension of the judgment or injunction against its execution.[c] It is strange, how the Ogyeadom court focused on applications for stay of execution which was not before the Court. In any event, the Court, in my view, could have simply granted the injunction alternative of the application rather than resort to the needless sophistry which resulted in a plainly erroneous decision which though hailed and cited by practitioners, is actually very bad law.

142.   In the case of Merchant Bank (Ghana) Limited v Similar Ways Ltd for instance, the lawyer had actually applied for an injunction to restrain the execution which, in my view was the proper application to make and which the Court should just have proceeded to grant. The Court however fixed its focus on the procedural steps of stay of execution and made an order that cannot be justified on any ground. The order was to suspend the entry of judgment which precedes execution. The said process was never before the Court and the Court had no power to deal with it. The Supreme Court only has power to deal with the judgments of other courts but not the process filed before those courts. 

143.   In the present Ogyeadom case, the application was for a stay of execution which was plainly incompetent. The Court acknowledged this fact. The Court had power to have decided that once the purpose of the application was to prevent execution pending the determination of appeal pending before it, the Court will treat it as an application for injunction and grant it as an order of injunction pending the determination of the appeal. 

144.   The Court has in several instances decided to look at the substance of an application rather than its form to do justice. This is a legally justifiable way of dealing with the matter and it is supported by authority. The Court’s decision to embark on a needless and headless excursus into matters irrelevant to the direct issue of the Court was uncalled for and this has made the area of law murkier than the Court met it. 

H. Conclusion-Ogyeadom was dead on arrival.

145.   From the discussion so far, it is clear that the Ogyeadom decision is bad law and a call is hereby made that it be departed from. These are summary of the writer’s reasons:

1. Firstly, the concept of stay of executable and non-executable orders are statutorily founded and cannot be treated conveniently by the courts or practitioners using the interest of justice as the basis
2. Secondly the decision is clearly contrary to the combined provisions of article 129(4), 131 of the Constitution and rule 20 of its own rules. A plain reading of the said constitutional provisions and the rule referred to will reveal that the Court is not jurisdictionally competent to entertain and grant an application for stay of execution pending the determination of an appeal to the Court from a judgment of the Court of Appeal which either dismissed or affirmed the judgment of the High Court. A decision which is demonstrably wrong is not to be followed by the courts. This is the case where the judgment does not accord with statute. In the case of Edusei v Diners Club SA[ci] it was held that no matter how exalted a precedent is, it cannot take precedence over statute. A jurisdictional point is always taken seriously by the courts and is always a sure ground to treat a decision as void.
3. Thirdly, and maybe alternatively, the Court’s interpretation of article 129(4) and 20 of its rules show clearly that the Court gave inadequate consideration to their provisions as the Court turned a blind eye to the very crucial words “within its jurisdiction” in article 129 of the Constitution and the words “judgment or decision appealed from” in rule 20. The law is that inadequate consideration of a statute or other binding authority is good ground to depart from the Court’s previous position.[cii]
4. Fourthly, the ratio of the case is clearly not discoverable. The law is that where the ratio of a case is not discoverable the courts are not bound to follow it.[ciii]
5. Furthermore, the interest of justice does not justify recourse to non-existent principles of interpretation to reach the conclusion reached by the Court.[civ] The interest of justice cannot confer jurisdiction on a court. The convenient theory of the interest of justice on which the Court relied in the Ogyeadom case is definitely controversial and cannot be the yardstick for delivering substantial justice
6. Also, a party who appeals against the judgment of the Court of Appeal to the Supreme Court is not fixed with the remedy of stay of execution and is not entirely without remedy which is the reason for which the Court’s interest of justice approach to interpretation. Such a party may apply for an injunction. This is actually the proper application to make to the Court.[cv] In other words the party stuck with the conundrum of an executable and non-executable judgment is not without remedy justifying application of the interest of justice theory by recourse to what is expressed in the Latin maxim ubi jus, ibi remedium which emphasizes the fundamental right to remedy under due process.

146.   It is therefore recommended that the Court go back to the basic building blocks it had laid down in its pre-Ogyeadom times and fine tune them in accordance with the law if the Court intends to provide such guidance. The Ogyeadom decision in the writer’s view is bad law and the epithet Rest In Peach shall be written over it sooner than later. 
 

--- 

[i] Page 1108.

[ii]Justice Eric Kyei Baffuor.

[iii] The dawn of a new era in the grant of stay of execution in Non-Executory Orders: The case of Ogyeadom Obranu Kwesi Atta VI.

[iv] Written by Derick Adu-Gyamfi intituled: Brief Analysis of the Supreme Court case of Ogyeadom v Obranu Atta VI v Ghana Telecommunications Co. Ltd & Lands Commission dated November 8, 2021.

[v] Although the learned Justice did not dissent because he agreed with the rest of his colleagues that the application be granted, his reasoning did not synchronize with the rest of his brothers.

[vi] In what is thought of as a unanimous decision of the Court coram; Anin Yeboah CJ, Dotse, Gbadegbe, Appau, Pwamang, Marful-Sau and Kotey JJSC, the separate judgment of Pwamang JSC douses the unanimous effect of the judgment.                                            

[vii] Under rule 20 of the Supreme Court Rules, 1996 C.I. 16, an application for stay of execution of the judgment of the Court of Appeal must first be made to the Court of Appeal and upon refusal, repeated in the Supreme Court.  

[viii] See page 1128 of [2017-2020] 1 SCGLR.

[ix] At page 1111. Pwamang JSC noted in his separate opinion that the application was made “to stay execution of the judgment of the trial court” which is the High Court. See page 1112. 

[x] At page 1093.

[xi] At page 1093.

[xii] At page 1092.

[xiii] See pages 1111 to 1130.

[xiv] See page 1111.

[xv] The Court noted that there was an anomaly in the application but stated that “As the substantive relief sought from the application is an order staying execution, and the parties contested the application on that basis, no injustice is done considering the application as one for stay of execution.” See page 1108 of the report. 

[xvi] See page 1111.

[xvii] At page 1094 of [2017-2020] 1 SCGLR

[xviii] Page 1096.

[xix] Page 1105.

[xx] See pages 1098 and 1099.

[xxi]The Court referred to cases like Merchant Bank v Similar Ways Limited [2012] 1 SCGLR 440, NDK Financial Services Limited v Yiadom Construction and Electrical Works Limited [2007-2008] 1 SCGLR 93.

[xxii] Page 1099 of [2017-2020] 1 SCGLR. 

[xxiii] Ibid.

[xxiv] Page 1098.

[xxv] Page 1100.

[xxvi] Bank of Ghana v Labone Weavers Enterprised Ltd [1971] 1 GLR 251 at page 255 per Azu Crabbe JA (as he then was).

[xxvii] Page 1096.

[xxviii] Page 1105.

[xxix] Page 1100.

[xxx] See page 1111.

[xxxi] Page 1096.

[xxxii] [2007-2008] 1 SCGLR 93.

[xxxiii][2012] 1 SCGLR 440.

[xxxiv] [2012] 1 SCGLR 452. 

[xxxv] [2009] SCGLR 196.

[xxxvi] These are the words which fell from the lips of Gbadegbe JSC referring to Justice Atuguba’s judgment in the Similar Ways case. 

[xxxvii] Page 1096 of [2017-2020] 1 SCGLR.

[xxxviii] Ibid, at page 1096.

[xxxix] Ibid, at page 1096.

[xl] Ibid at page 1096.

[xli] Ibid at page 1099.

[xlii] Amidu (No 3) v Attorney-General, Waterville Holdings (BVI) Ltd & Woyome [2013-2014] 1 SCGLR 606 Per Wood CJ at page 659.

[xliii] At page 1096.

[xliv] [2017-2020] 1 SCGLR 830.

[xlv] [2013-2014] 1 SCGLR 477.

[xlvi] See page 840 of [2017-2020] 1 SCGLR

[xlvii] [2007 – 2008] 1 SCGLR 512.

[xlviii] At page 519.

[xlix] See the cases of Edusei v Attorney-General [1996-97] SCGLR 1 @ 58 per Kpegah JSC in the Majority and Pianim v Ekwam [1996-97] SCGLR 431 per Edward Wiredu in the minority.

[l] See pages 1097 to 1102 of [2017-2020] 1 SCGLR.

[li] 1996 C.I. 47.

[lii] See pages 1097 onwards of [2017-2020] 1 SCGLR.

[liii] Ibid, at page 1098.

[liv] Ibid, at page 1098.

[lv] At page 1113.

[lvi] [2009] SCGLR 111.

[lvii] rule 27 of the Supreme Court Rules, 1962 (LI 218). See page 115 of the report.

[lviii] Page 115 of [2009] SCGLR.

[lix] [2009] SCGLR 196.

[lx] At page 200.

[lxi] See NYB Adade Justice of the Supreme Court. Miscellany-At-Law: Interlocutory Matters Under the High Court Rules [1987-88] Vol XVI RGL 60-70.

[lxii]  Osei-Hwere PV Miscellany-At-Law: Interlocutory Matters [1987-88] Vol XVI RGL 41-53

[lxiii] Ibid

[lxiv]The Supreme Court Rules, 1996 (C.I. 16).

[lxv] See for instance page 1099 of [2017-2020] 1 SCGLR 1090.

[lxvi] See for instance the cases of Ghana Football Association v Apaade Lodge Ltd [2009] SCGLR 100, Golden Beach Hotels (Ghana) Ltd v Pack Plus International [2012] 1 SGLR 452.

[lxvii] See the case of Edusei v Attorney-General [1998-99] SCGLR 756 per Acquah JSC (as he then was) at 782.

[lxviii] [1992] 2 GLR 654-687 SC.

[lxix] At pages 668 to 669.

[lxx] Page 669.

[lxxi] See the cases of NB Landmark Ltd v Lakiani [2001-2002] SCGLR 319 at 320 per Acquah JSC who cited cases like Eboe v Eboe [1961] 1 GLR 432 and Mensah v Ghana Football Association [1989-90] 1 GLR 1 as authority. See also the case of Republic v High Court, Tema; Ex parte Kofi [1999-2000] 1 GLR 61 CA.

[lxxii] Page 1100.

[lxxiii] Page 1101.

[lxxiv] Ibid, at page 1098.

[lxxv] Page 1103.

[lxxvi] [1966] GLR 530.

[lxxvii]  [1992] 2 GLR 654.

[lxxviii] Page 1104 of [2017-2020] 1 SCGLR.

[lxxix] At page 1105.

[lxxx] See the case of Essifie and Others v Anafo and Others [1992] 2 GLR 654 at 663 per Archer CJ and also the judgment of Atuguba JSC in the case of Kpobi Tettey Tsuru  III  (No 2)   v  Attorney-General  (No  2) [2011] 2 SCGLR 1042, per Atuguba JSC at pages 1050-1051. The definition remains valid even though Atuguba JSC was in the minority in the said decision.

[lxxxi] [1955] 2 Q.B 379. See The Law Making Process, by Michael Zander, fifth edition at page 221.

[lxxxii] at page 406 [1955] 2 Q.B 379.

[lxxxiii] See the cases of Kpobi Tettey Tsuru  III (No  2)   v Attorney-General  (No  2) [2011] 2 SCGLR  1042 Tamakloe   v The Republic [2011] SCGLR 29, and Republic v Tetteh [2003-2004] 1 SCGLR 140.

[lxxxiv] [1998-1999] SCGLR 753.

[lxxxv] at 798-799.

[lxxxvi] Suit No. J8/66/2018 delivered on 7th June, 2018

[lxxxvii][2007-2008] SCGLR

[lxxxviii] [2007-2008] 1 SCGLR 93.

[lxxxix] [2009] SCGLR 196. 

[xc] [2009] SCGLR 100.

[xci] [2012] 1 SCGLR 440.

[xcii] [2012] 1 SCGLR 452.

[xciii] [2017-2020] 1 SCGLR 830.

[xciv] [2017-2020] 1SCGLR 1075.

[xcv] Ruling of the Supreme Court dated the 6th day of February, 2014 in Review Motion No J7/05/2014. Coram- Ansah, Dotse and Anin-Yeboah JJSC (as he then was).

[xcvi] The isolated case of Tony Lithur v Nana Oye Lithur Civil Motion No. J4/01/2021 dated 29th April, 2021 which held that an order though not capable of stay of execution will be stayed if the refusal to stay will have serious consequences does not change my view on this point.The statements made by the Court in the said case are obiter.

[xcvii] [2017-2020] 1SCGLR 1075.

[xcviii] 5th edn. Vol 11 paragraph 479. Quoted in the case of Jonas Addo McKay & 2 Others v Daniel. Civil Motion No 8/49/2013, dated the 3rd day of May, 2013 decided by Benin JSC sitting as a single Justice of the Supreme Court. “In the case of of In Re Yendi Skin Affairs Yakubu II v Abdulai [1984-86] 2 GLR 231 the Supreme Court actually granted an application for injunction pending the determination of an appeal at the instance of the Respondent. The Applicant for his part had applied for a stay of execution.”

[xcix] See paragraph 338. Pwamang JSC however takes the view that such jurisdiction can only be properly exercised if the matter is within the Court’s jurisdiction. See pages 1127-1128 of [2017-2020] I SCGLR.

[c] See page 1128 where Pwamang JSC acknowledges the fact that the application before the Court was for suspension or injunction against execution of the judgment.

[ci] [1982-82] 2 GLR 802 at page 814 per Amissah JA.

[cii] See the cases of Kpobi Tettey  Tsuru III  (No  2)   v  Attorney-General  (No  2) [2011] 2 SCGLR  1042 Tamakloe   v The Republic [2011] SCGLR 29, and Republic v Tetteh [2003-2004] 1 SCGLR 140.

[ciii] See the case of Bank of Ghana v Labone Weavers Enterprise Limited cited supra.

[civ] The cases of Edusei (No.2) v Attorney-General and Essilfie and Others v Anafo Others supra justifying this point.

[cv] See the reference made to Halsbury’s Laws, 5th edn. Vol 11 at paragraphs 335 and 479.