DIVISION: IN THE SUPREME COURT
DATE: 29 TH APRIL, 1963
BEFORE: OLLENNU, BLAY AND AKUFO-ADDO JJ.S.C
CASES REFERRED TO
(1) Wilson v. Church (No. 2) (1879) 12 Ch.D. 454; 41 L.T. 296, C.A.
(2) Soromani v. Buachi, C.A. April 1, 1958, unreported.
[p.388] of [1963] 1 GLR 387
NATURE OF PROCEEDINGS
APPLICATION for stay of execution. The facts are set out in the judgment of the Supreme Court.
COUNSEL
N. Y. B. Adade for the applicants.
E. Edusei (with him Arthur) for the respondents.
JUDGMENT OF AKUFO-ADDO J.S.C.
Akufo-Addo J.S.C. delivered the judgment of the court. This was an application by the judgment-debtors
under rules 27 and 28 of the Supreme Court Rules, 1962,1 for an order for the stay of execution of the
judgment of Djabanor J. sitting in the High Court, Kumasi, who had previously refused an application for
stay by the applicants (the judgment-debtors).
On the 8th April, 1963, we heard the application and granted stay of execution on the condition that
money paid into the High Court, Kumasi, to cover the judgment-debt should remain in custodia legis
pending the outcome of the appeal from the judgment aforesaid which the applicants had lodged to this
court. We stated when granting stay of execution that we would give our reasons for that ruling later, and
we proceed to do so now.
This was a case in which the respondent (the judgment-creditor) brought an action against the applicants,
tenants of premises at Kumasi owned by the respondent, for arrears of rent covering the period the 30th
September, 1960, to the 31st January, 1962, and then to the date of judgment and for an order for
possession of the premises. The applicants disputed the claim for arrears of rent on the ground that at the
date of the issue of the writ no arrears of rent were due to the respondent for which he could bring an
action. The applicants’ case was that they had an account with the respondent covering rents and a loan of
£G4,500 made to them by the respondent, that in January 1962 the applicants gave to the respondent a
cheque for £G3,540 which was the overall balance due in respect of both the rents and the loan. This
cheque was however dishonoured on presentation and the respondent brought an action to recover the
said sum of £G3,540 for which he (the respondent) obtained judgment in April 1962. It was not disputed
that this amount was being liquidated by monthly instalments of £G200 each.
The learned judge of the court below gave judgment for the respondent for arrears of rent covering the
periods the 30th September, 1960, to the 31st January, 1962, and the 1st February, 1962, to the date of
judgment amounting in all to £1,450, and ordered possession of the premises to be given to the
respondent.
An application to this court for stay of execution under rules 27 and 28 after similar application to the
court below has been refused is not in the nature of an appeal from the refusal by the court below. The
jurisdiction of this court in such a matter is concurrent with that of the court below, and the application to
this court is a fresh application.
[p.389] of [1963] 1 GLR 387
The respondent claimed all order for possession of the tenanted premises under the provisions of the Rent
Control Act, 1962,2 on the ground of non-payment of rent. The respondent’s rights to possession
therefore depended entirely on whether at the date of the issue of the writ the applicants were in arrears of
their rent. It depended, that is, on whether the decision that they owed rent for the period the 1st
September, 1960, to the 31st January, 1962, was a correct decision. Among the payments which the
applicants claimed at the trial to have made to the respondent and which brought down their overall
indebtedness (in respect of both loan and rent) to £G3,540 was a payment of £G1,500 made by cheque.
The trial judge did not accept the applicants’ story that the sum of £G3,540 represented an overall balance
which included rent up to the 31 St January, 1962. Mr. Adade, counsel for the applicants, called our
attention to the trial judge’s finding on the question of the £G1,500 paid by cheque in which the learned
judge said:
“As for the cheque for £G1,500 there is evidence that it was debited to the defendants’ [i.e., applicants’]
account. There is also the evidence of the plaintiff’s [i.e., respondent’s] representative that it was paid to the
plaintiff. But nobody knows for what purpose it was paid.”
Counsel’s submission was that that finding in the face of the glaring fact that the applicants claimed to
have paid this amount towards the combined loan and rent account makes the learned judge’s findings on
the whole of the issue involved in the case questionable. We make no pronouncements on the correctness
or otherwise of the findings of the learned judge. Indeed it would not be proper for us to make any
pronouncements that might prejudice the appeal. All we can say is that the issue whether or not the
applicants owed rent at the date of the writ still remains to be determined on appeal.
It is the paramount duty of a court to which an application for stay of execution pending appeal is made to
see that the appeal, if successful, is not nugatory: see Wilson v. Church (No. 2).3 Since the respondent’s
right to the possession of the premises depended entirely on whether the applicants owed any rent at the
date of the issue of the writ, it was our view that if the applicants were ejected and the result of their
appeal proved that they did not owe any rent then their ejectment would have been without just cause, and
the success of their appeal would be of no use to them whatever. It was upon these considerations that we
exercised our discretion in ordering stay of execution on the condition that the amount of the
judgment-debt paid into court remain in custodia legis to ensure that in the event of the failure of the
appeal the respondent shall without difficulty have his money.
[p.390] of [1963] 1 GLR 387
While we do not wish to say anything that may be interpreted as a fetter on the exercise of the discretion
of a trial judge when he considers an application for stay of execution pending appeal we think it
necessary in the interest of justice to say generally that when such an application is considered in a case
involving, inter alia, the payment of money, the main consideration should be not so much that the
victorious party is being deprived of the fruits of his victory, as what the position of a defeated party
would be who had had to pay up or surrender some legal right only to find himself successful on appeal.
In this respect it is wholly immaterial what view a trial judge takes of the correctness of his own judgment
or of the would-be appellant’s chances on appeal, if the position (it is not of course suggested that that is
the position in the case before us) is that the victorious party is unlikely to be able to refund the amount
paid to him, or the defeated party to be restored to the status quo ante, in the event of a successful appeal
(and it should not be difficult to determine the likelihood of such an event), then it would be palpably
unjust to refuse stay of execution, or, when stay of execution is refused, not to order the judgment creditor
to give good, substantial and realisable security for the refund of the money involved.
Generally speaking it is not our view that the policy of the law in this country should be against staying
execution pending appeal especially where large sums of money are involved, and we would urge that when execution is stayed it should, where the circumstances permit, be on the condition that the judgment-debtor pay into court the amount of money involved, or, when refused, on the condition that the judgment-creditor give security as aforesaid and approved by the judge.
Any situation created by a judicial act, done either inadvertently or callously, which makes it impossible
for a successful appellant to recover money paid, or any interest in property or other legal rights
surrendered, under a judgment vacated on appeal does a disservice to the course of justice, if only because
it undermines public confidence in the administration of justice.
In view of some incidents which occurred while this application was pending in this court and which were
brought to our notice we have thought it necessary to make some observations concerning these incidents.
After the applicants’ application for stay of execution had been refused by the court below on the 13th
March, 1963, the respondent, the judgment creditor, sought to go into execution and actually had some
properties of the applicants attached under a writ of fi.fa. On the 14th March, 1963, the applicants, the
judgment-debtors, filed their application in this court, and according to the registrar of this court he
thereupon by telephone informed the registrar of the court below of the application and requested that
nothing be done in the matter until the application had been disposed of; this information and request
were later confirmed by a telegram. On the 16th March, 1963, the applicants paid the judgment-debt and
costs
[p.391] of [1963] 1 GLR 387
into the court below as a foundation for their offer to deposit the money in court as a condition of stay of
execution being granted them by this court. A day or two after the money had been deposited in the court
below, and although the respondent had been served with notice of the application to this court on the
15th March, 1963, the money so deposited was paid out to the respondent by the registrar of the court
below.
We do not know why the registrar of the court below ignored the request made to him by the registrar of
this court and paid out the money to the respondent, nor do we know the extent of counsel’s responsibility
for the withdrawal of the money, but we would like to state that this court views with the greatest
disfavour any action by registrars or by counsel or by parties to litigation which in its nature has the effect
of stultifying any consideration that this court, or any other court for that matter, has to give to matters
before it. Registrars are particularly warned that when interim applications are made to this court in
matters arising out of proceedings in their courts, they shall on no account take any step or do anything in
such matters without the express authorisation of the registrar of this court. It is not a proper exercise of
their duties that court registrars should lend their services to acts that can only have the effect of defeating
the ends of justice.
As far as counsel who have to advise their clients in such matters are concerned we can do no worse than
refer them, as a guide to their conduct, to the decision of the Court of Appeal in Soromani v. Buachi.4
This was a case in which the plaintiff, Soromani, brought an action in the High Court, Kumasi, against a
mortgagor, a member of his family, and the mortgagee in respect of property which the mortgagor had
mortgaged to the mortgagee. His claim was that the mortgaged property was family property and the
mortgagor, a member of the family, had no right to give away the property. The mortgagee was exercising
his right of sale under the mortgage and the plaintiff’s action was taken with the object of setting aside the
deed of mortgage and thus saving the property from being sold. The auctioneer to whom the mortgagee
had entrusted the sale of the property was also sued. The plaintiff, at the time of issuing his writ, also filed
an application for an interim injunction to restrain the sale of the property pending the determination of
the suit. While the application for interim injunction was pending and before it was heard the property
was sold. The hearing of the application had been scheduled for a date later than the date fixed by the
auctioneer for the sale, and the mortgagee and the auctioneer ignored the existence of the application for
interim injunction of which notice had been duly served on them and carried out the sale. When the
application came before the court it had to be withdrawn because the property had been sold and an
injunction could therefore be of no avail. It turned out that the mortgagee and the auctioneer acted on
[p.392] of [1963] 1 GLR 387
counsel’s advice, and Sarkodee-Adoo J. (as he then was) before whom the matter came took a very
serious view of the conduct of counsel in this respect and awarded costs of two hundred guineas against
counsel personally. Counsel appealed to the Court of Appeal against that order. The Court of Appeal
reduced the amount of the costs awarded but otherwise endorsed the principle underlying Sarkodee-Adoo
J.’s action and dismissed the appeal in the following terms5:
“Counsel admits that the action of his client, the solicitor for the defendants, was unwise but contends that it
does not amount to a misconduct or default. While we concede that the conduct of the appellant may not
have been deliberate misconduct or disrespect to the court, we are clearly of the opinion that it was such
hasty conduct as falls far short of the high standard of behaviour that is required of counsel or a solicitor as
an officer of the court, and therefore amounts to a default within Order 65, r. 11.
In such circumstances we are of the opinion that the learned judge was justified in making an order upon
the counsel or solicitor to pay the costs properly incurred by the plaintiff. These costs would not amount
to anything like the sum of £G200 which the appellant was ordered to pay.
We would in these circumstances have remitted the matter to the court below for the proper costs to be
taxed, but we accede to the request of counsel for appellant that we should assess the costs here. We
therefore assess the costs at £G10 10s. to be paid by the appellant to the plaintiff.
Subject to this amendment of the learned judge’s order, the appeal is dismissed.”
It is perhaps unnecessary to stress the principle that the duty of a legal practitioner who has been engaged
by a litigant is not only to his client but also to the court of which he is an officer, and it is essential that
he should not permit these two facets of his duty to be in conflict with each other.
When an application is made to a court for an interim order that court becomes seised of the matter to the
extent covered by the prayer contained in the application, and until the court makes an order in the matter
it is an improper conduct for a legal practitioner to advise the doing of the very act which the application
is intended to prevent, for it amounts to flouting the authority of the court. It is not a legitimate exercise of
a legal practitioner’s duty either to his client or to the court.
DECISION
Stay of execution granted.
J. D.
