SANDAH v. ASANTE AND ANOTHER [1971] 1 GLR 14

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 17 JULY 1970

BEFORE: ABBAN J.

NATURE OF PROCEEDINGS

APPLICATON to stay the proceedings in a district court until the applicant’s action against the respondents in the High Court was resolved.

COUNSEL

Miss A. A. Ayisi for the applicant.

I. Ahlidja for the respondents.

JUDGMENT OF ABBAN J.

This application is brought under Order 34, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), asking for an order staying certain proceedings that are now pending before the Lartebiokorshie District Court Grade I, until the present suit now pending in this court is heard and determined.

Counsel for the applicant, Miss Ayisi, argued with all seriousness, that if the action in the said district court is allowed to proceed, it will prejudice the applicant’s claim which is before this court, since the claim in the district court as well as the claim in this court involves similar points of law. Learned counsel for the applicant further submitted that the goods that are the subject-matter of the dispute before the Lartebiokorshie District Court were wrongfully seized by the respondents at the Ghana-Togo border, from the custody of the applicant’s bailee, who is now one of the two defendants in the action proceeding in the said district court. Counsel therefore contended that any decision against the bailee by the said district court, will affect the applicant’s claim before this court. Counsel further argued that the action before the Lartebiokorshie District Court is quasi-criminal and that if the decision goes against the applicant’s bailee, it is likely the goods may be confiscated. Counsel therefore submitted that it is necessary that the proceedings in the Lartebiokorshie District Court should be stayed. In opposing the application, counsel for the respondents contended that the goods were never seized from the applicant, but that they were lawfully seized from Jash Adebayo and Moro Sandah who are the defendants in the case before the Lartebiokorshie District Court. Counsel said these two persons attempted to cross the Ghana-Togo border in a vehicle No. KC 5001 with those goods which are worth over N¢76,000.00 without an export licence; conduct which is contrary to the Customs Ordinance, Cap. 167 (1951 Rev.). Counsel for the respondents further

[p.16] of [1971] 1 GLR 14 submitted that the action before the said district court was instituted and that the hearing actually started some sixteen days before the writ of summons in the present action was issued, and that in any case proceedings under the Customs Ordinance enjoy precedence over all other proceedings and that the application for stay should not be entertained.

Before considering the submissions of both counsel, I will like to look a little closer at the rule under which this application is brought, namely, Order 34, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954. That rule reads as follows:

“If it appear to the Court or a Judge, that there is in any cause or matter a question of law, which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, or before any reference is made to a referee or an arbitrator, the Court or Judge may make an order accordingly, and may direct such question of law to be raised for the opinion of the Court, either by special case or in such other manner as the Court or Judge may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.”

For the court to grant a stay of proceedings under this rule, some question of law must be adequately raised on the pleadings, and the court must be of the opinion that a decision on that point of law will make the trial of any question of fact not only undesirable but unnecessary. It seems that the proceedings referred to in this rule are proceedings actually pending before the High Court itself. The words “in any cause or matter” appearing in the rule can only mean any action which has been instituted in and is pending before the High Court. They cannot possibly refer to actions pending before any other court. In my opinion the provisions of this particular rule do not give the High Court power to stay proceedings in civil suits pending before other courts such as the district court. It follows that the only proceedings in respect of which the applicant can invoke the provisions of this rule are the proceedings in the present action. Consequently the present application which is brought under Order 34, r. 2 is misconceived. I am not unaware that, quite apart from the rules of court, this court has an inherent jurisdiction in appropriate cases to interfere and stay proceedings pending before other inferior courts. But that jurisdiction can only be exercised with great circumspection and under certain conditions, for example where the proceedings are oppressive and vexatious. In the instant application it was never averred in the affidavit in support of the application, neither was it submitted, that the proceedings before the Lartebiokorshie District Court are oppressive or vexatious or in some way embarrassing. As a matter of fact, the applicant herein is not even a party to those proceedings in the district court. Therefore he cannot hitherto invoke the court’s inherent jurisdiction to have the said proceedings stayed. [p.17] of [1971] 1 GLR 14

I now turn to the submission of counsel. Assuming that the application is not misconceived, I fail to see the similar points of the law involved in the two suits. I think that the questions to be decided by the district court are (a) whether the goods seized are in such quantity that they require an export licence and

(b) whether Jash Adebayo and Moro Sandah acted contrary to the customs laws by not obtaining the said export licence before attempting to cross the Ghana-Togo border with those goods. On the other hand, in the case before the High Court the question to be decided is whether the goods in fact belong to the applicant and whether they were wrongfully seized. These are mainly questions of fact, and in any case the legal points likely to arise in the two suits will not be the same. Learned counsel’s contention that if the judgment went against the said Jash Adebayo and Moro Sandah the goods may be forfeited and disposed of is not a valid ground upon which a stay of proceedings can be granted. After all, if the applicant has a genuine claim to these goods he is at liberty to apply to the Lartebiokorshie District Court to make him a party in order to protect his interest. Or he can, if he so desires, apply to this court for an interim order for the preservation of the said goods pending the final determination of the suit herein. One last point: At the time that the applicant issued out his writ of summons in the High Court, he was fully aware that the said district court proceedings being complained of, had been instituted and that the hearing had already begun. So that, if a stay of proceedings is desirable at all, then I should think it is rather the proceedings pending before this High Court which ought to be stayed. Quite apart from these facts, the proceedings in the Lartebiokorshie District Court ought to enjoy priority of hearing as required by section 234 of the Customs Ordinance.

For the above reasons, the application must fail and it is accordingly dismissed. The respondents will have their costs assessed at N¢20.00.

DECISION

Application dismissed.

T.G.K.