REPUBLIC vs. HIGH COURT, ACCRA; EX PARTE SOKU AND ANOTHER [1997-98] 1 GLR 480

CASES REFERRED TO

(1) Republic v Court of Appeal; Ex parte Sidi [1987-88] 2 GLR 170, SC.

(2) Republic v High Court, Accra; Ex parte Eastwood [1995-96] 1 GLR 680, SC.

(3) Timitimi v Amabebe (1953) 14 WACA 374.

(4) Republic v Circuit Court, Accra; Ex parte Appiah [1982-83] 2 GLR 129, CA.

(5) R v Northumberland Compensation Appeals Tribunal; Ex parte Shaw [1952] 1 KB 338; [1952] 1 All ER 122 [1952] 1 TLR 161, CA.

NATURE OF PROCEEDINGS

APPLICATION by the applicant-judgment debtor for an order of certiorari to quash the ruling of the High Court granting his application for stay of execution of a judgment debt on terms pending his appeal from the decision of the trial district court. The facts are sufficiently stated in the ruling of the court delivered by Adjabeng JSC.

COUNSEL

G Y Amoah for the applicant.

C Quaye for the respondent.

JUDGMENT OF ADJABENG JSC

Adjabeng JSC delivered the ruling of the court. This is an application for, “an order of certiorari to issue to quash the ruling of the High Court, Accra, dated 12 June 1996 in civil motion No Misc 789/96 intituled Tetteh Laryea v John Soku and Another and to substitute for it an order for stay of the judgment debt and costs pending the determination of the appeal before the High Court … “

The applicants had been sued at the District Court, La, Accra, by one Tetteh Laryea who claimed damages against them for damage done to his vehicle. The trial court gave judgment against the applicants and awarded damages of ¢1,050,000 and costs of ¢80,000 against them. Dissatisfied with the judgment, they appealed against it to the High Court, Accra. They then applied to the trial court for stay of execution of the judgment pending the determination of the appeal. The trial court refused the applica

[p.483] of [1997-98] 1 GLR 480 ion. They therefore repeated it at the High Court. The High Court ruled on the application as follows: “Having read the motion paper and the supporting affidavit and also the affidavit in opposition to the motion, it is my considered opinion that the judgment debt be paid into the court to await the outcome of the appeal. However, the costs are to be paid to the respondent.

The judgment debt should be paid into the court on or before 12 July 1996.”

It is this ruling that the applicants seek in the instant application to have brought up here and quashed.

The ground upon which the application is brought is that there is an error on the face of the record. The applicants contend in their statement of case that, “the order that the whole judgment debt of ¢ 1,050,000 should be paid into court and the costs paid to the plaintiff-judgment creditor as a condition for granting a stay of execution is a perversion of justice and is therefore wrong.”

The application seems to have been based wholly on the Supreme Court case of Republic v Court of Appeal; Ex parte Sidi [1987-88] 2 GLR 170, SC. In that case, the applicant applied for the stay of execution of damages of ¢1 million and costs of ¢5,000 awarded against him by the High Court, Tamale in a libel suit after appealing against the judgment to the Court of Appeal. The High Court granted the application for stay of execution on the condition that the judgment debt and costs were paid into court pending the determination of the appeal. Being of the view that the terms were rather harsh and onerous and therefore amounted to a refusal, the applicant repeated the application at the Court of Appeal relying on the Court of Appeal Rules, 1962 (LI 218), r 27(1) and 28, as amended. The Court of Appeal refused to grant the application. It held that the application had not been refused but had been granted by the High Court on terms and that if the applicant was dissatisfied he should have appealed. Aggrieved by this decision, the applicant applied to the Supreme Court for certiorari to quash the decision of the Court of Appeal. The

[p.484] of [1997-98] 1 GLR 480

Supreme Court granted the application and held as follows, as stated in the headnote:

“(1) when an applicant in Ghana applied for stay of execution of a judgment debt, he was asking the court to suspend the actual payment of the debt pending the outcome of the appeal. If he was, in effect, asked to pay the whole judgment debt, whether into court or not, he would justifiably consider it an abuse of language and an indulgence in legal technicalities to argue that he had been granted his application for stay. Consequently, an alleged grant having attached to it onerous conditions stultifying the substantive expectations of an applicant was a refusal. In the instant case, the High Court order that the whole of the judgment debt of ¢1,000,000 be paid into court within three months in the circumstances of the case and within the context of Ghanaian conditions amounted virtually to a dismissal of the applicant’s motion because the average Ghanaian could not fulfil them, and was therefore a refusal ab initio. The Court of Appeal therefore erred in refusing to exercise its powers of co-ordinate jurisdiction under rules 27 (1) and 28 of the Court of Appeal Rules, 1962 (LI 218), as amended.”

It is clear from the above decision that the principle established therein is that where an application for stay of execution of a judgment is granted but subject to conditions which are substantially rather onerous and difficult to fulfil, the purported grant should be considered as a refusal to grant the application. The application can therefore be repeated in the appellate court, in this case, the Court of Appeal, and such an appellate court ought to entertain and hear it and not to decline jurisdiction on the ground that the trial court had granted it as the Court of Appeal did in the Sidi case (supra). It must be emphasised that the Supreme Court in the Sidi case (supra) did not rule that the grant of the application including the conditions attached by the High Court was wrong in law and so ought to be quashed by certiorari. It was the refusal by the Court of Appeal to hear the repeat application brought before it that the Supreme Court ruled as an error in law and so quashed its order declining jurisdiction.

[p.485] of [1997-98] 1 GLR 480

Indeed, Francois JSC in his opinion in the case made the significant point at 181 that, “The grant of stay is discretionary, and so also are the terms imposed.” A grant of stay of execution of a judgment debt on terms with onerous conditions cannot therefore be wrong in law to warrant bringing up an order making such a grant to be quashed. That was not the decision in the Sidi case (supra). The facts and decision in that case only entitled an applicant to repeat his application in the higher court.

In the instant case, it is clear that the application that the High Court granted on terms was a repeat application for stay of execution after the trial district court had refused to grant the original application. What the High Court (before which the applicants’ appeal against the district court decision was pending) did was to exercise its discretion in the matter. As the ruling (referred to supra) indicates, the court, after considering the application together with the affidavits filed by both parties, exercised its discretion and made the order it considered appropriate in the circumstances. It cannot be doubted that the High Court had power to exercise its discretion in the matter. One cannot see any error on the face of the ruling which ought to be corrected nor has the applicants’ counsel pointed out any. Even if it can be said that the order, in this case, to pay ¢1,050,000 into court in 1996 is a condition as onerous as the order to pay ¢1 million into court in the Sidi case (supra) in or about 1988, the applicants’ remedy does not lie in an application for certiorari to have quashed the High Court order as no error of law has been committed by the High Court, a superior court.

Our brother Charles Hayfron-Benjamin JSC, reading the ruling of this court in the recent case of Republic v High Court, Accra; Ex parte Eastwood Ltd [1995-96] 1 GLR 689 at 700, SC advised that: “This court must therefore necessarily deal with the superior courts with great caution in the exercise of our supervisory jurisdiction.” This supervisory jurisdiction has been conferred on this court by article 132 of the Constitution, 1992 which provides that:

“132. The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may in the exercise of that supervisory jurisdiction, issue orders

[p.486] of [1997-98] 1 GLR 480 and directions for the purpose of enforcing or securing the enforcement of its supervisory powers.”

(The emphasis mine.) It must be said that but for this constitutional provision, the Supreme Court would not have any supervisory powers over the High Court and the Court of Appeal as they are not inferior courts or tribunals. If therefore, it is claimed that there is an error of law appearing on the face of the record of a superior court which warrants intervention by this court by the exercise of our supervisory jurisdiction, it must be such an error as goes to the wrong assumption of jurisdiction or the error is so obvious as to make the decision a nullity: see the dictum of Coussey JA in Timitimi v Amabebe (1953) 14 WACA 374 at 376, and the Eastwood Ltd case (supra).

In the Ex parte Eastwood case (supra), the court per Charles Hayfron-Benjamin JSC quoted some observations made by Francois JA (as he then was) in Republic v Accra Circuit Court; Ex parte Appiah [1982-83] GLR 129 at 143, which will serve as useful guides to us in our exercise of this jurisdiction. Francois JA (as he then was) observed.

“A court of competent jurisdiction may decide questions before it rightly or wrongly. Procedures for correcting wrong decisions exist. The procedure of appeal is one such avenue for redress. But the remedies of appeal and certiorari are different and must not be blurred. That certiorari and appeals are not alternative remedies but rather are mutually exclusive is restated in Obeng v. Ampofo, Court of Appeal, Cyclostyled Judgments, January-June 1958, 143. Again in Amegbe v. Tepa [1960] G.L.R. 7, C.A., the Court of Appeal deplored the indiscriminate use of prerogrativesic(1) writs. The exhortation was that they should be used carefully and not abused. In Joseph v. Jebeile Brothers, Court of Appeal, 5 May 1969, unreported; digested in (1969) C.C. 98, a decision that has been relied upon in this appeal, the unanimous conclusion, despite the differences in opinion restated the rule that ‘In certiorari proceedings the court acts as a supervisory court and not as an appellate court.’ Azu Crabbe J.A., as he then was, went on to say that the supervisory powers of the court

[p.487] of [1997-98] 1 GLR 480 could only be exercised where an error of law was disclosed on the face of the record; unlike an appellate court, the court does not interfere merely because the decision is wrong in law. The error must be manifest[sic](2) on the face of the record. Authority for that proposition was cited in the case of R. v. Paddington North and St Marylebone Rent Tribunal; Ex parte Perry [1956] 1 Q.B. 229, D.C.”

Also in R v Northumberland Compensation Appeals Tribunal; Ex parte Shaw [1952] 1 KB 338 at 357 Morris LJ said:

“It is plain that certiorari will not issue as the cloak of an appeal in dispute. It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of, jurisdiction where shown. The control is exercised by removing an order or decision, and then by quashing it.”

We think that the instant application for certiorari in the circumstances of this case, as demonstrated, is misconceived. It ought to be dismissed.

DECISION

Application dismissed.

Endnotes

1 (Popup – Footnote) sic same in document 2 (Popup – Footnote) [sic] same in document