[2026] SLR (SC) 93Supreme Court - Ghana2026 SC - GHANA

THE REPUBLIC vs. COURT OF APPEAL , ACCRA EXPARTE NOWFILL S LABA

28 October 2026 · PWAMANG JSC · ≈ 44 min read

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OSCOLATHE REPUBLIC v COURT OF APPEAL , ACCRA EXPARTE NOWFILL S LABA [2026] SLR (SC) 93

APATHE REPUBLIC v COURT OF APPEAL , ACCRA EXPARTE NOWFILL S LABA, [2026] SLR (SC) 93 (Ghana).

BluebookTHE REPUBLIC v COURT OF APPEAL , ACCRA EXPARTE NOWFILL S LABA, [2026] SLR (SC) 93 (Ghana Sup. Ct. 2026).

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA- AD 2026

CORAM: PWAMANG JSC (PRESIDING)

PROF. MENSA-BONSU (MRS.) JSC

GAEWU JSC

DZAMEFE JSC

ACKAAH-BOAFO JSC

CIVIL MOTION

NO. J5/67/2026

28TH OCTOBER, 2026

THE REPUBLIC

VRS

COURT OF APPEAL, ACCRA ………… RESPONDENT

EX PARTE:

NOWFILL S. LABA ………… APPLICANT

1. WISSAM LABA

2. HAIFA KYRIAKOS LABA

3. CHARLES LABA INTERESTED PARTIES

4. J. OPOKU BOATENG

5. LATEX FOAM RUBBER PRODUCTS LTD.

____________________________________________________________________

RULING

ACKAAH-BOAFO, JSC: i. Overview:

[1] My Lords, the issue that falls for our consideration in this application appears, at first blush, to be relatively straightforward, though not necessarily easy to resolve. At the heart of the application lies a question of jurisdiction of the Court of Appeal in considering a repeat application for an interlocutory injunction when Civil Form 6 has not been issued. The Applicant invokes the supervisory jurisdiction of this Court under Article 132 of the 1992 Constitution and Rule 61 of the Supreme Court Rules, 1996 (C.I. 16), seeking an order of CERTIORARI to bring up and quash a ruling of the Court of Appeal delivered on 14th April 2026.

[2] By that ruling, the Court of Appeal dismissed, as incompetent, a repeat application for an interlocutory injunction pending appeal on the ground that Civil Form 6 had not been issued and that, consequently, the Court was not seised of jurisdiction to entertain the application.

[3] The Applicant contends that, in so ruling, the Court of Appeal committed an error of law patent on the face of the record by declining to exercise a jurisdiction which the law had conferred upon it, and which had been duly invoked. The 1st to 3rd Interested Parties, on the other hand, support the decision of the Court of Appeal and contend that it correctly recognised that, until the record of appeal had been transmitted and Form 6 issued, it lacked jurisdiction or any inherent power to entertain the application. This Court is, accordingly, called upon to determine whether, after a competent notice of appeal has been filed and an application for an injunction pending appeal has been made to and refused by the court below, the Court of Appeal has jurisdiction to entertain a renewed application for the same relief before the record of appeal is transmitted and Form 6 issued. The Applicant and the 5th Interested Party hold the view that the Court of Appeal was wrong to decline jurisdiction.

[4] For ease of reference, Nowfill S. Laba shall be referred to as the “Applicant” in this opinion. While Wissam Laba, Haifa Kyriakos Laba, and Charles Laba shall collectively be referred to as the “1st to 3rd Interested Parties”. J. Opoku Boateng and Latex Foam Rubber Products Ltd. shall be referred to as the “4th Interested Party” and the “5th Interested Party”, respectively. ii. Brief Background Facts:

[5] The material facts relevant to the determination of this application are not in controversy. On 9th April 2021, the Applicant commenced an action under the Companies Act, 2019 (Act 992), by Originating Motion on Notice against the Interested Parties in the High Court, Accra, in Suit No. GJ/0756/2021. Upon hearing the application, the High Court, on 6th June 2024, dismissed the Applicant’s case in the following terms:

“All matters considered flowing from all of the above, I hold that the Applicant has not been able to make out his case to warrant the granting to him of all of his reliefs. Accordingly reliefs A-J are refused. Same dismissed.”

[6] Dissatisfied with that decision, the Applicant, on 7th June 2024, filed a Notice of Appeal against it (Exhibit C) and subsequently filed additional grounds of appeal (Exhibit C1). Following the filing of the Notice of Appeal, the Applicant applied to the High Court for an interlocutory injunction pending appeal (Exhibit D). On 5th November 2024, the High Court, having heard the application, dismissed it on the ground that:

“ …. the Applicant failed to convince the court that there are special grounds which warrant the grant of the interlocutory application pending the hearing and determination of the appeal”.

[7] Following that refusal, the Applicant, on 21st November 2024, filed a further application for an interlocutory injunction pending appeal before the Court of Appeal. In substance, that application was a repetition of the application previously refused by the High Court. On 14th April 2026, the Court of Appeal (Civil Division), coram: (Oppong A, Oppong BYK & Boafo DKA, JJA) after hearing counsel, dismissed the application as incompetent (Exhibit H). The court ruled as follows:

“BY COURT: This application seeking an order for injunction against a decision of the Court below that referred the application for injunction.

The application was filed at a time that Form 6 had not been issued, meaning that the instant application was filed before this Court at a time this Court was not ceased with jurisdiction as far as the substantial appeal was concerned. We are of the considered view that the applicant is not entitled to repeat the instant application for injunction when same was refused by the trial Court. in other words, where the Court below refuse an application for injunction, such an application cannot be repeated to the Court of Appeal where form 6 had not been issued in respect of the substantive appeal. We are therefore of the view that the Court application is incompetent and same is dismissed.”

[8] Aggrieved by that ruling, the Applicant, on 28 May 2026, filed the instant Motion on Notice, invoking the supervisory jurisdiction of this Court. The motion was supported by an affidavit and a Statement of Case filed pursuant to Rule 61(2) of C.I. 16. The 1st to 3rd Interested Parties initially filed their Statement of Case on 16 June 2026, to which the Applicant filed a Reply on 25 June 2026. The record shows that, following the hearing on 7 July 2026, the 1st to 3rd Interested Parties filed a new 43-page Statement of Case, titled “Written Submissions”, addressing the question posed by the Court. The 5th Interested Party also filed its Statement of Case on 7 August 2026.

[9] By an order dated 7th July 2026, this Court directed the parties to file written submissions on a single question, namely:

“Whether the Court of Appeal has jurisdiction to hear repeat application pending appeal prior to the transmission of the Record of Appeal by the issuance of Form 6?” iii. The Instant Application for Certiorari:

[10] The Applicant’s application is brought pursuant to Article 132 of the Constitution, seeking an order of certiorari to quash the ruling of the Court of Appeal dated 14 April 2026. The grounds upon which the application is founded are set out verbatim in the motion paper as follows:

“1. ERROR OF LAW PATENT ON THE FACE OF THE RECORD

That their Lordships sitting at the Court of Appeal in the matter intituled Nowfill S. Laba v Wissam Laba & 4 ORS (Civil Motion No. H3/103/2026) on 14th April 2026 committed a jurisdictional error of law patent on the face of the record when they held that without the issuing of Form 6, it has no jurisdiction to entertain the application and the Court of Appeal had no inherent power to hear repeat application for injunction pending Appeal.

Their Lordships committed jurisdictional error on the true effect of issuing Civil Form 6 as an event that grants jurisdiction to the Court of Appeal when its true effect is rather the termination of transitional jurisdiction of the court below.

2. WRONGLY DECLINING JURISDICTION

That their Lordships clearly committed a jurisdictional error by declining jurisdiction to hear the Motion for Injunction Pending Appeal on the basis that it is only when Form 6 has been issued that its jurisdiction in granting interim orders can be exercised notwithstanding the fact that upon invocation of the Court’s jurisdiction by the Notice of Appeal, the Form 6 only terminates the implied bifurcation in Rule 21 of C.I. 19.

Their Lordships committed jurisdiction error when it failed to appreciate the distinction between vested jurisdiction invoked by Notice of Appeal as an originating process and that of inherent power as a superior court to entertain interlocutory applications founded on the vested jurisdiction of Superior courts.” iv. Summary of Arguments

Applicant’s Submission:

[11] Counsel for the Applicant submitted that the supervisory jurisdiction of this Court under Rule 61 of C.I. 16 empowers the Court to issue an order of certiorari not only to correct an unlawful exercise of jurisdiction but also to remedy a wrongful refusal to exercise jurisdiction vested in a court. He contended that the Court of Appeal erred in law by misconstruing the effect of Civil Form 6 as conferring jurisdiction on that court, rather than terminating the concurrent jurisdiction of the court below. According to counsel, the appellate jurisdiction of the Court of Appeal had already been invoked by the filing of the Notice of Appeal, while the interlocutory application for an injunction sought merely to activate that jurisdiction. The Court of Appeal’s refusal to entertain the application therefore constituted, in counsel’s submission, an error of law on the face of the record warranting the grant of certiorari. In support of these submissions, counsel relied on Republic v Court of Appeal, Accra; Ex parte Sidi [1987–88] 2 GLR 170–188 and Republic v Court of Appeal; Ex parte Ghana Commercial Bank Pensioners Association [2002] DLSC 2379.

[12] Counsel further submitted that the jurisdiction of the Court of Appeal derives principally from statute and is supplemented by its inherent jurisdiction as a superior court of record, recognised under Articles 11 and 137(3) of the Constitution. He argued that the jurisdiction of the Court of Appeal is not confined to the determination of appeals after the transmission of the record, as the court may exercise pre-appellate powers necessary to ensure the effective determination of appeals. In support of this proposition, counsel relied on Okofoh Estates v Modern Signs Ltd and Another [1995–96] 1 GLR 310, Konadu v Yiadom and Others [1995–96] 1 GLR 8, and Republic v Tommy Thompson Books Limited [1996–97] SCGLR 804 at 838.

[13] Turning to the distinction between the invocation and activation of jurisdiction, counsel maintained that the filing of a Notice of Appeal invokes the appellate jurisdiction of the Court of Appeal, whereas an interlocutory application may serve to activate that jurisdiction in a particular matter. He relied on Rule 9(3) of C.I. 19 and the decisions in Dora Boateng v McKeown Investment, Civil Appeal No. J4/12A/2019, dated 5 February 2020; Republic v High Court (Criminal Division 9), Ex parte Ecobank Ghana Limited (Interested Parties: Origin 8 Limited and Greater Accra Passenger Transport Executive), Civil Motion No. J5/10/2022, dated 18 January 2022; and Nii Lante Lamptey v R.O. Lamptey & 2 Ors, Civil Appeal No. J4/17/2021. Counsel also contended that, notwithstanding the delivery of judgment, the High Court retains residual jurisdiction to entertain certain applications during the pendency of an appeal, pursuant to Order 25 rules 1(1) and (2), Order 43 rule 11, and Order 45 rule 15 of C.I. 47.

[14] Counsel again submitted that, before the revocation of Rule 28 of the Court of Appeal Rules, 1997 (C.I. 19), by the Court of Appeal (Amendment) Rules, 2020 (C.I. 132), an applicant whose application had been refused by the court below could renew the application before the Court of Appeal. He contended that, under the former procedural regime, Civil Form 6 served a dual purpose: it activated the jurisdiction of the Court of Appeal and terminated the jurisdiction of the court below. Following the revocation of Rule 28, however, counsel argued that Civil Form 6 no longer serves to confer jurisdiction on the Court of Appeal but merely terminates the concurrent jurisdiction of the court below. On that basis, he maintained that an unsuccessful application could be renewed before the Court of Appeal even before Civil Form 6 had been issued.

[15] In support of this contention, counsel relied on Republic v High Court (Criminal Division 9), Ex parte Ecobank Ghana Limited (Interested Parties: Origin 8 Limited and Greater Accra Passenger Transport Executive), (Supra). He submitted that, in that decision, this Court affirmed that the revocation of Rule 28 did not displace the established practice of renewing an unsuccessful application before the Court of Appeal prior to the transmission of the record of appeal, that practice having developed pursuant to the Court of Appeal’s inherent jurisdiction.

[16] Counsel also relied on Mochcom Limited v Cypress Investments Ltd, Supreme Court, Civil Appeal No. J4/42/2023, dated 4 June 2024, in which, according to Counsel, this Court reaffirmed that, notwithstanding C.I. 132, the court below retains jurisdiction to entertain interlocutory applications, including applications for a stay of proceedings, until the record of appeal is transmitted to the Court of Appeal. He further submitted that, where such an application is refused, the applicant may renew it before the Court of Appeal, which may determine it in the exercise of its inherent jurisdiction.

[17] Relying on Mochcom Limited and Ex parte Ecobank Ghana Limited (Origin 8), counsel contended that the principle permitting the renewal of an unsuccessful interlocutory application before the Court of Appeal is not confined to applications for a stay of execution or a stay of proceedings. In his submission, the principle extends to other interlocutory applications falling within the court’s jurisdiction, including applications for injunctions pending appeal under Order 25 and applications for a stay under Order 43 rule 11 and Order 45 rule 15 of C.I. 47. He argued that the applications considered in the cited authorities were illustrative of the principle and were not intended to exhaust its scope. Any contrary interpretation, counsel submitted, would deprive a party whose application for an injunction pending appeal had been refused by the court below of an effective remedy during the period preceding the transmission of the record of appeal, a process which, he contended, could take years.

[18] On the question of concurrent jurisdiction, counsel relied on the Practice Direction published in the 1981 Ghana Law Reports, which, according to him, requires a party seeking relief in a matter falling within the concurrent jurisdiction of superior courts, other than the Supreme Court, to invoke the jurisdiction of the lower court in the first instance. Failure to do so may attract punitive costs for approaching the higher court directly. Counsel submitted that the principle underlying the Practice Direction is that, where concurrent jurisdiction exists, a party must first seek the relief from the lower court before approaching the higher court for the same relief.

[19] With respect, counsel challenged the correctness of this Court’s decision in Alhaji Halidu Aboubakar v Dinah Afi Martins (Decd) and Another, Civil Appeal No. J4/54/2023, dated 19 March 2025, particularly the pronouncements that the filing of a Notice of Appeal does not confer jurisdiction on the Court of Appeal and that such jurisdiction becomes operative only upon the transmission of the record of appeal. Counsel contended that those pronouncements do not reflect the correct state of the law and ought to be reconsidered. He maintained that the Notice of Appeal filed on 7 June 2024 had duly invoked the appellate jurisdiction of the Court of Appeal and that the court was consequently competent to entertain the renewed application for an interlocutory injunction pending appeal.

[20] Counsel therefore submitted that the Court of Appeal erred in declining jurisdiction to entertain the application. He accordingly urged this Court to quash the impugned ruling and remit the application to the Court of Appeal for determination on its merits.

Submissions by the Interested Parties:

[21] Counsel for the 1st to 3rd Interested Parties submitted that, pursuant to Rules 14 and 21 of C.I. 19, the Court of Appeal becomes seized of an appeal upon the transmission of the record of appeal and the issuance of Form 6 by the Registrar of the court below. Relying on Republic v High Court (Human Rights Division), Accra; Ex parte Akita (Mancell-Egala & Attorney-General Interested Parties) [2010–2012] 1 GLR 635 at 642 and Alhaji Halidu Aboubakar v Dinah Afi Martins (Decd) and Another (supra), counsel contended that service of Form 6 marks the point at which the High Court ceases to exercise jurisdiction over the appeal and the Court of Appeal assumes jurisdiction over it. He maintained that the filing of a notice of appeal merely initiates the appellate process and does not, of itself, vest the Court of Appeal with jurisdiction to entertain the appeal. In his submission, the Court of Appeal becomes properly seized of the appeal only upon the completion of the prescribed procedural steps, including the settlement and transmission of the record.

[22] Counsel distinguished Nii Lante Lamptey v R. O. Lamptey & 2 Others and Dora Boateng v Mackeown Investment from the instant case on the ground that neither decision directly determined the question of when the Court of Appeal becomes seized of an appeal. He submitted that, to the extent that any statements in those decisions were inconsistent with the earlier authorities on the point, such statements were per incuriam. Relying further on Republic v High Court (General Jurisdiction 5), Accra; Ex parte: The Minister for the Interior and the Comptroller-General of Immigration Service (Ashok Kumar Sivaram Interested Party), counsel argued that any departure from the Supreme Court’s previous decisions under Article 129(3) of the Constitution must be express and unequivocal. He accordingly maintained that, in the absence of an express departure from the earlier authorities, the Court of Appeal was bound by them and correctly declined to exercise jurisdiction over the appeal.

[23] Counsel further relied on Mokab Company Ghana Ltd v Bragha Construction Company Ltd, Civil Motion No. H1/188/2014, dated 20 February 2014, and Republic v Asantehene Nana Osei Tutu II and the Asanteman Council; Ex parte Abusuapanin Owusu Sekyere Afriyie and Asiniehene Nana Kwame Yamoah II, Civil Appeal No. H3/141/2005, dated 15 March 2005, in support of his contention that the Court of Appeal could exercise its powers under Rule 31 of C.I. 19 only when it had properly assumed jurisdiction over the appeal upon the issuance of Form 6. He submitted that, in the absence of such jurisdiction, the Court could not entertain an application for an interlocutory injunction pending appeal. He further contended that, by virtue of Article 136(5) of the Constitution, the Court of Appeal was bound to follow the authorities cited in support of that proposition.

[24] Relying on S.M. Timitimi v Chief Amabebe (1952) 14 WACA 374; Attorney-General and Another v Apaade Lodge Ltd [2008–2009] 1 GLR 285 at 292; Attoh-Quarshie v Okpote [1973] 1 GLR 59 at 65; and Daniel Ofori v Ecobank Ghana Limited & 2 Others, Civil Motion No. J7/01/2022, dated 17 May 2023, counsel further argued that inherent jurisdiction serves only to facilitate the exercise of jurisdiction otherwise conferred by law and cannot be invoked to cure the absence of jurisdiction. He distinguished Mochcom Limited v Cypress Investments Ltd and the Origin 8 case on the ground that those decisions concerned the effect of C.I. 132 on the courts’ powers to grant stays of proceedings and execution pending appeal, respectively, rather than the Court of Appeal’s power to grant an interlocutory injunction before the issuance of Form 6. Counsel accordingly contended that those decisions were not binding on the specific issue before the Court. He further submitted that the observations permitting repeat applications before the transmission of the record were obiter dicta, as they had been made without consideration of the earlier authorities on when the Court of Appeal becomes seized of an appeal.

[25] In conclusion, the 1st – 3rd Interested Parties contend that the Court of Appeal correctly held that it becomes seized of an appeal upon the transmission of the record, as evidenced by the issuance of Form 6, and that, in the absence of jurisdiction over the appeal, it lacked the power to grant an interlocutory injunction under Rule 31 of C.I. 19. They accordingly submit that the application is devoid of merit and urge this Court to dismiss it in its entirety.

[26] The 5th Interested Party, for its part, through counsel, principally relied on the same judicial authorities cited by the Applicant and the 1st–3rd Interested Parties. However, unlike the 1st–3rd Interested Parties, the 5th Interested Party aligned itself with the Applicant and submitted that the principle to be distilled from such cases as Mochcom Limited, Ex parte Ecobank Ghana Limited (Origin 8) (supra), and Republic v. High Court, Accra; Ex parte Kudjo Anku & 2 Others (Daniel Danso, Interested Party) [2017–2018] 2 SCLRG 313 “remains that, for the preservation of the sanctity of the appeal process and for the prevention of injury or injustice in the interim, the Court of Appeal must, of necessity, deploy its inherent jurisdiction in respect of interlocutory matters relating to pending appeals, including repeat applications of whatever nature, pending the issuance of Civil Form 6”.

[27] Counsel therefore concluded that, “in answer to the question stated, prior to the issuance of Civil Form 6, the Court of Appeal does have the jurisdiction to consider repeat interlocutory applications relating to the pending appeal on their merits”. Learned Counsel further submitted that, were this not the case, a party would be left without a remedy before the record of appeal is transmitted. v. The Law, my Opinion and Analysis:

[28] My Lords, as stated above, the Applicant invokes the supervisory jurisdiction of this Court under Article 132 of the 1992 Constitution, seeking an order of certiorari to quash the ruling of the Court of Appeal dated 14th April 2026, by which that Court dismissed as incompetent the Applicant’s renewed application for an interlocutory injunction pending appeal. The dismissal was founded on the ground that Civil Form 6 had not been issued and that the Court of Appeal was, consequently, not yet seised with jurisdiction to entertain the application. The Applicant contends that the ruling is vitiated by an error of law patent on the face of the record and going to jurisdiction. The alleged error lies in the Court of Appeal’s treatment of the issuance of Civil Form 6 as a condition precedent to the exercise of its jurisdiction, notwithstanding the filing of the Notice of Appeal.

[29] My Lords, the jurisprudence of this Court has firmly established that its supervisory jurisdiction under Article 132 of the 1992 Constitution is intended to ensure that courts and other adjudicating authorities act within the limits of their lawful authority and in accordance with the principles of natural justice. However, as established in Republic v Court of Appeal, Accra; Ex parte Sidi (Supra) and reaffirmed in Republic v Court of Appeal; Ex parte Tsatsu Tsikata [2005–2006] SCGLR 612 at 619, the jurisdiction to issue an order of certiorari is exercisable only where recognised grounds for its invocation have been established. These include an error of law patent on the face of the record, a breach of natural justice, and a want or excess of jurisdiction. In Ex parte Tsatsu Tsikata, Wood JSC (as she then was) emphasised that the error complained of must be manifestly plain and obvious and must be fundamental, substantial, material or grave enough to go to the root of the matter or otherwise render the impugned decision a nullity.

[30] It is therefore my understanding that not every error of law, nor an error merely characterised as jurisdictional, warrants the intervention of this Court in the exercise of its supervisory jurisdiction. The essential inquiry is whether the complaint discloses a fundamental defect that justifies the grant of certiorari, as distinct from an error that is properly remediable by appeal. Accordingly, the determination of the present application turns on whether, in the circumstances of this case, the Court of Appeal was legally competent to entertain the Applicant’s renewed application for an interlocutory injunction pending appeal before the transmission of the record of appeal and the issuance of Civil Form 6.

[31] My Lords, in addressing the question posed, I wish first to consider the arguments advanced by counsel for the parties. Although the question is broadly framed, its proper determination requires an examination of the settled practice of this Court regarding the jurisdiction of the Court of Appeal, including its inherent jurisdiction to entertain repeat applications of this nature before the transmission of the record of appeal, particularly in the light of the Court of Appeal (Amendment) Rules, 2020 (C.I. 132).

[32] On the issue of inherent jurisdiction, it is well established that, for a jurisdiction conferred by the Constitution or statute to be fully and effectively exercised, the superior courts are also vested with an inherent jurisdiction that enables them to discharge their judicial functions even in the absence of an express rule governing the situation before them. One of the functions of that inherent jurisdiction, as Hayfron-Benjamin J. (as he then was) explained in Attoh-Quarshie v. Okpote (Supra) at 65, is to prevent wrong or injury from being occasioned by the court’s own acts, orders, or judgments. This includes the power to vacate judgments entered by mistake, grant relief against judgments procured by fraud, and set aside acts or orders that the court had no jurisdiction or authority to make in the first place.

[33] The question of repeat applications for a stay of execution pending appeal was considered by this Court in Republic v High Court, Accra; Ex parte Ecobank Ghana Ltd, Origin 8 Limited, (Supra). In that case, having held that C.I. 132 had not deprived the High Court of jurisdiction to stay execution of its own judgment pending appeal, this Court proceeded to consider whether the revocation of Rule 28 of C.I. 19 had affected the established practice whereby an applicant whose application for a stay of execution had been refused by the court below could renew the application before the Court of Appeal notwithstanding that the record of appeal had not yet been transmitted.

[34] Upon an examination of C.I. 19 and its amendments, particularly C.I. 132, this Court held that the practice remained intact because it derived from the inherent powers of the courts and did not depend upon Rule 28 for its continued existence. Although Rule 28 had codified the settled practice, its revocation did not extinguish the applicant’s entitlement to renew an unsuccessful application for a stay of execution before the Court of Appeal prior to the transmission of the record of appeal. The significance of Origin 8 lies, therefore, in my respectful opinion, in its recognition that the Court of Appeal’s jurisdiction to entertain such a repeat application derives from its inherent powers and survives the revocation of the rule that had previously given express recognition to the practice.

[35] The principle was subsequently considered and extended to applications for a stay of proceedings in Mochcom Ltd v Cypress Investments Ltd, Civil Appeal No. J4/42/2023, dated 4 June 2024. In that case, this Court, speaking through Kwofie JSC, clarified the respective jurisdictions of the court below and the Court of Appeal where an appeal had been lodged but the record of appeal had not yet been transmitted. The Court held that, notwithstanding the coming into force of C.I. 132, the court below retained jurisdiction to entertain interlocutory applications arising from the decision appealed against, including an application for a stay of proceedings, until the record of appeal was transmitted to the Court of Appeal.

[36] The Court further held that, where the court below refused an application for a stay of proceedings, the applicant could renew the application before the Court of Appeal, which was competent to entertain and determine it in the exercise of its inherent jurisdiction even before the record of appeal was transmitted. Accordingly, this Court held that the Court of Appeal had erred in declining jurisdiction to determine the repeat application for a stay of proceedings on the ground that C.I. 132 had deprived it of such jurisdiction.

[37] My Lords, read together, Origin 8 and Mochcom Ltd establish the jurisprudence of this Court as being that the revocation of Rule 28 of C.I. 19 by C.I. 132 did not abolish the settled practice of permitting an unsuccessful application for a stay of execution or a stay of proceedings to be renewed before the Court of Appeal prior to the transmission of the record of appeal. The jurisdiction to entertain such a renewed application derives from the inherent powers of the Court of Appeal and does not depend on the continued existence of Rule 28.

[38] It follows from the foregoing that the non-transmission of the record of appeal does not, in itself, preclude the Court of Appeal from exercising its jurisdiction. Rather, the authorities recognise that, until the record is transmitted, the court below retains jurisdiction to entertain interlocutory applications arising from the decision appealed against, while the Court of Appeal may, in the exercise of its inherent jurisdiction, entertain a repeat application previously refused by the court below. The governing principle is, therefore, that C.I. 132 did not displace the established practice. Accordingly, the Court of Appeal cannot properly decline to exercise jurisdiction over a repeat application for a stay of execution or a stay of proceedings solely on the ground that the record of appeal has not yet been transmitted.

[39] My Lords, whereas the principles governing applications for a stay of execution and a stay of proceedings pending appeal may be regarded as settled, the position concerning injunctions pending appeal raises a distinct question. Circumstances may arise in which there is neither an executable order to be stayed nor pending proceedings whose continuation may be restrained, yet the applicant stands to suffer irreparable harm before the appeal is determined unless the opposing party is restrained from undertaking a particular act. In such circumstances, an injunction or other appropriate preservatory order may be necessary to protect the applicant’s interests and preserve the status quo pending the determination of the appeal. The question, therefore, is whether the established competence of the Court of Appeal to entertain a renewed application before the transmission of the record is confined to applications for a stay of execution or a stay of proceedings, or whether it extends to applications for injunctions and other forms of interlocutory protection.

[40] In Merchant Bank Ghana Ltd v Similar Ways Ltd [2012] 1 SCGLR 440, this Court, speaking through Atuguba JSC, recognised that the Rules of Court cannot anticipate or expressly provide for every conceivable situation that may arise pending the determination of an appeal. His Lordship accordingly observed that, even where a stay of execution is unavailable, other remedies may be available to preserve a party’s interests pending appeal. Significantly, the Court ordered the suspension of the entry of judgment pending the determination of the applicant’s appeal. That order illustrates that the absence of an executable order does not necessarily preclude a court from granting appropriate interim protection where the circumstances warrant it.

[41] The Court also referred to several instances in which the superior courts had exercised powers of suspension or granted other protective orders in response to the circumstances of particular cases. These included the suspension of disciplinary sanctions and fines for contempt pending appeal, as illustrated in Republic v General Legal Council Disciplinary Committee; Ex parte Aboagye da Costa [1989–90] 2 GLR 164, CA, and Republic v High Court, Tema; Ex parte Kofi [1999–2000] 1 GLR 61, CA. Other examples included the suspension of execution pending the review of an order granting leave to levy execution and the temporary suspension of execution by a registrar pending the determination of an application for a stay, as illustrated in Baiden v Ansah [1973] 1 GLR 33, Joseph v Jebeile [1963] 1 GLR 387, SC, and Republic v Circuit Court Registrar; Ex parte Arthur [1980] GLR 309, CA, at 312 and 315.

[42] The Court further referred to the stay of proceedings pending the determination of an appeal in another matter whose outcome was relevant to the proceedings sought to be stayed, as illustrated in Vanderpuije v Akwei [1971] 1 GLR 242. Taken together, these authorities support the proposition that the court’s power to preserve the efficacy of its eventual decision is not necessarily confined to the conventional remedies of a stay of execution and a stay of proceedings. Depending on the circumstances and the limits of its jurisdiction, the court may grant other appropriate protective orders where the interests of justice so require.

[43] Atuguba JSC identified the jurisdictional foundation for such protective orders in settled judicial practice, the inherent powers of the court, the residual procedural powers conferred by Rule 7 of the Court of Appeal Rules, 1997 (C.I. 19), and Rule 5 of the Supreme Court Rules, 1996 (C.I. 16), as well as Article 126(2) of the 1992 Constitution. His Lordship relied on Article 126(2), which recognises the superior courts as courts of record and preserves their powers to commit for contempt and such other powers as were vested in courts of record immediately before the coming into force of the Constitution.

[44] My Lords, Rule 7 of C.I. 19 empowers the Court of Appeal to prescribe appropriate procedures where the Rules make no express provision. Accordingly, the absence of an express procedural provision for a particular remedy does not necessarily preclude the Court from granting an appropriate preservatory order to prevent injustice, provided that its jurisdictional limits are respected. As recognised in Merchant Bank (Supra), inherent powers may supplement existing jurisdiction but cannot create jurisdiction where none exists. The central question, therefore, is whether the applicable rules permit the Court of Appeal to entertain an application for an injunction or other preservatory relief before the record of appeal is transmitted, or whether its competence at that stage is confined to applications for a stay of execution or proceedings.

[45] In resolving the question stated above, it is necessary to distinguish between the conferment of jurisdiction, its invocation in a particular matter, and the exercise of a specific judicial power at a particular stage of proceedings. The Applicant maintains that the Court of Appeal’s jurisdiction is invoked upon the filing of a valid notice of appeal, while the Interested Parties contend otherwise, relying on Alhaji Halidu Aboubakar v Dinah Afi Martins (Deceased) & Another (19 March 2025); Nii Lante Lamptey v R.O. Lamptey, Nii Teiko Okine & FKA Company Ltd (1 December 2021); Dora Boateng v McKeown Investment Ltd (5 February 2020); and Nana Kwasi Broni & Yaw Ahima Boampong v Kwame Kwakye, Kwadwo Dekyi & Kwasi Frempa Dekyi (22 February 2017).

[46] The appellate jurisdiction of the Court of Appeal derives from Article 137 of the 1992 Constitution and the relevant provisions of the Courts Act, 1993 (Act 459), particularly sections 11(1) and (2) and 41(1). These provisions empower the Court to determine appeals and exercise the requisite judicial powers, including the power to grant an injunction pending appeal, which the Interested Parties do not dispute. The central issue is therefore not whether the Court possesses that power, but when its jurisdiction is sufficiently invoked to permit its exercise in the circumstances of the present case.

[47] My Lords, under Rule 9(3) of C.I. 19, an appeal is instituted by filing a notice of appeal in the registry of the court below. This must be distinguished from subsequent procedural steps, including the settlement and transmission of the record and the issuance of Civil Form 6. In Dora Boateng v McKeown Investment Ltd (supra), the court affirmed that the appellate jurisdiction of the Court of Appeal is invoked upon the filing of a valid notice of appeal, while any subsequent addition or amendment of grounds of appeal must comply with Rule 8(7) of C.I. 19. Similarly, Nii Lante Lamptey v R.O. Lamptey & Others (supra) recognises the notice of appeal as the originating process, without dispensing with the requirement to comply with subsequent procedural rules governing the filing and service of processes.

[48] The decisions in Dora Boateng and Nii Lante Lamptey v R.O. Lamptey & Others (supra) recognise the notice of appeal as the originating process by which the appellate jurisdiction of the Court of Appeal is invoked. That principle, however, does not dispense with the requirement that subsequent processes be filed and served, where applicable, in accordance with the relevant procedural rules. Although Nii Lante Lamptey concerned the service of processes, its reasoning may nevertheless be relevant to the present issue, depending on the precise question determined and the principle necessary to the Court’s decision.

[49] Counsel for the 1st–3rd Interested Parties, relying on Nana Kwasi Broni & Another v Kwame Kwakye & Others and Alhaji Halidu Aboubakar v Dinah Afi Martins (Deceased) & Another (supra), contends that the jurisdiction of the Court of Appeal is not invoked until the record has been transmitted and Civil Form 6 issued. Counsel further submits that contrary statements in Dora Boateng and Nii Lante Lamptey were made per incuriam. It is therefore necessary to examine the issues presented for determination, the reasoning adopted, and the legal principles essential to the decisions in those cases in order to ascertain the proper scope of their respective pronouncements and determine whether any apparent inconsistency can be reconciled.

[50] In Nana Kwasi Broni (supra), the Plaintiffs withdrew their Notice of Appeal two days after filing it and subsequently filed a fresh Notice of Appeal without first obtaining leave of the Court. The objection to that course of action was that it contravened rule 17 of the Court of Appeal Rules, 1997 (C.I. 19). This Court rejected the objection on the ground that the appeal had not reached the procedural stage at which rule 17 became applicable.

[51] In my respectful view, the Court’s pronouncements on jurisdiction in that case must be understood in the context of the specific procedural question that fell for determination. The Court was concerned with whether the withdrawal of the notice of appeal at that stage of the proceedings required leave. It was not called upon to determine the broader question whether, before the transmission of the record of appeal, the Court of Appeal is precluded from entertaining every form of application relating to a pending appeal. It would therefore be inappropriate, in my respectful view, to extract the statements on jurisdiction from the context in which they were made and treat them as establishing an absolute rule applicable indiscriminately to all applications arising in the course of appellate proceedings.

[52] A similar consideration arises in relation to Aboubakar (supra). In that case, judgment had been entered by the High Court in favour of the defendants, against which the plaintiff lodged an appeal. The plaintiff subsequently applied directly to the Court of Appeal, as the court of first instance, for a stay of execution pending appeal, notwithstanding that the record of appeal had not yet been transmitted to that Court. The application was not one brought before the Court of Appeal following a refusal by the High Court to grant a stay of execution. Rather, the plaintiff sought to invoke the Court of Appeal’s jurisdiction to grant that interlocutory relief in the first instance, before the appeal had been entered upon the transmission of the record. It was in this procedural context that the Court considered the relationship between the filing of a notice of appeal, the transmission of the record, and the jurisdiction of the Court of Appeal to entertain an application for a stay of execution.

[53] The passage in Aboubakar on which the Interested Parties principally rely is the following:

“The argument by counsel for the Applicant that the Court of Appeal had jurisdiction to entertain an application for stay pending appeal, the moment a Notice of Appeal was filed, is unfortunately inconsistent with the law. Jurisdiction is a creature of statute. The Court of Appeal’s jurisdiction to deal with applications operates within the parameters of C.I 19. A Notice of Appeal does not grant jurisdiction to the Appellate Court.”

The Court further stated, at page 8 of the judgment, as follows:

“In the light of these provisions, before the transmission of the Record, the Court of Appeal does not have jurisdiction to deal with interlocutory matters relating to a particular appeal. This clearly means that the Court of Appeal cannot entertain ‘any application’ including an application for stay of execution at first instance before the entry of an appeal which is preceded by the transmission of the Record.” [Emphasis Mine].

[54] In my respectful view, these statements must be read in their proper context and in conjunction with the specific issue that the Court was called upon to resolve. The central question was whether the mere filing of a notice of appeal conferred jurisdiction on the Court of Appeal to entertain, at first instance, an application for a stay of execution before the record of appeal had been transmitted. The Court answered that question in the negative. [Emphasis Mine].

[55] Accordingly, Aboubakar establishes the important principle that the filing of a notice of appeal, without more, does not confer on the Court of Appeal an unrestricted competence to entertain every application relating to the appeal. The jurisdiction to entertain a particular application must be grounded in the applicable statutory and procedural framework and cannot be inferred merely from the existence of a notice of appeal.

[56] In my respectful view, however, the observations in Aboubakar cannot, without further examination of the procedural circumstances, be regarded as conclusively determining the issue that arises in the present case. The application in Aboubakar was an application for a stay of execution made to the Court of Appeal in the first instance, before the transmission of the record of appeal. The present application, by contrast, is said to be a repeat application arising in materially different procedural circumstances. That distinction is substantive rather than merely formal. It raises the question whether the principles governing an application for interlocutory relief made in the first instance, before an appeal has been entered, necessarily extend to a subsequent application brought in a different procedural context. The answer must depend on the proper construction of the applicable provisions of C.I. 19 and the precise nature and circumstances of the application before the Court. The issue cannot be resolved merely by extending the language employed in Aboubakar beyond the question the Court was called upon to determine in that case.

[57] It is also significant that, in Aboubakar, this Court ultimately struck out the appeal on the ground that the requisite special leave had not been obtained and expressly declined to pronounce on the merits of the appeal. That procedural outcome calls for caution in determining the precedential effect of the Court’s preceding discussion of the Court of Appeal’s jurisdiction. In particular, if the broader observations concerning the Court of Appeal’s jurisdiction before the transmission of the record were not necessary to the Court’s determination of any issue properly before it, those observations would be obiter dicta rather than part of the ratio decidendi. They are, undoubtedly, entitled to respectful consideration, given the importance of the procedural principles discussed. Their persuasive force, however, must be distinguished from the binding effect of a determination necessary to the disposal of the case.

[58] I would therefore distinguish Nana Kwasi Broni (supra) and Aboubakar (supra) by reference to their respective procedural contexts and the specific questions that arose for determination in those cases. Neither authority, in my view, should be understood as conclusively foreclosing the competence of the present repeat application solely because the record of appeal had not been transmitted. The proper approach is to examine the nature of the application, the procedural circumstances in which it was brought, and the relevant provisions of C.I. 19 to determine whether the Court of Appeal was legally competent to entertain it. Such an approach respects the binding force of the decisions in the authorities cited without attributing to them a broader proposition that was not necessarily determined in either case.

[59] For the same reasons, I would reject the invitation to disregard Dora Boateng and Nii Lante Lamptey as per incuriam on the basis of the analysis advanced. In my view, those decisions should be construed in their proper procedural context and in a manner consistent with the relevant provisions of the Court of Appeal Rules, 1997 (C.I. 19), rather than treated as having departed from the law in a manner warranting their rejection under Article 129(3) of the Constitution. The critical distinction is between the invocation of the appellate jurisdiction of the Court of Appeal and the subsequent transmission of the record of appeal, which marks a distinct procedural stage at which the Court assumes control of the proceedings as contemplated by Rule 21 of C.I. 19.

[60] My Lords, it is my considered opinion that the filing of a valid notice of appeal invokes the appellate jurisdiction of the Court of Appeal, whereas the transmission of the record of appeal marks the stage at which the Court becomes seised of the proceedings in accordance with Rule 21. These are distinct procedural events with different legal consequences. Accordingly, the absence of transmission does not necessarily render every application incompetent, just as the filing of a notice of appeal does not automatically confer upon the Court competence to entertain every subsequent application. The question, therefore, is whether, having regard to C.I. 19 and the nature of the application before the Court — namely, a repeat application for an injunction, the Court possessed the requisite competence to entertain it at that stage of the proceedings.

[61] Rules 9(3), 14 and 21 must be construed harmoniously. Whereas Rule 9(3) identifies when an appeal is brought, Rules 14 and 21 underscore the procedural significance of transmitting the record of appeal in determining the Court of Appeal’s control over the proceedings and the appropriate forum for subsequent applications. Rule 21, by providing for an application to be filed in the court below for onward transmission to the appellate court, further recognises the procedural interaction between the two courts during the pendency of an appeal.

[62] The former Rule 28 of C.I. 19 and the 1981 Practice Direction provide historical and procedural support for this interpretation by recognising a structured coexistence of jurisdiction, under which applications may involve either or both courts, subject to the applicable procedural requirements and the proper sequence of proceedings. The governing principle is therefore one of procedural orderliness, as reflected in Yeboah v J.H. Mensah [1997–1998] 2 GLR 245.

[63] My Lords, further support for the proposition that the Court of Appeal is not wholly precluded from exercising judicial power before the transmission of the record is found in C.I. 19 itself. Rule 14(1)(b) contemplates the transmission of the record accompanied by a certificate confirming compliance with the conditions of appeal prescribed under Rules 11(4) and 12. Rule 18, however, expressly empowers the Court of Appeal to act where an appellant has failed to comply with the requirements of Rules 11(4), 12 or 13. Upon the Registrar of the court below certifying such non-compliance, the Court may dismiss the appeal, with or without costs. Rule 18 thus recognises that the Court may exercise specific judicial powers in relation to an appeal notwithstanding non-compliance with procedural requirements ordinarily associated with its prosecution and transmission. The Rules therefore do not necessarily support the absolute proposition that the Court is incapable of exercising any judicial power before transmission; rather, they distinguish between the invocation of appellate jurisdiction, the assumption of control over the appeal proceedings, and the exercise of particular powers conferred by the applicable rules.

[64] My Lords, Rules 18(2) and (3) further reinforce this position by empowering the Court, in the prescribed circumstances, to dismiss an appeal for want of prosecution or make such order as justice requires, and subsequently to entertain an application by motion on notice for the restoration of an appeal so dismissed. These powers may be necessary precisely where an appellant’s failure to pay for the preparation and transmission of the record prevents transmission from occurring. To make their exercise invariably dependent on prior transmission would risk disabling the Court from addressing the very procedural default that has prevented transmission. Such an interpretation would defeat the apparent purpose of the rule. Rule 18 therefore provides substantial support for the view that the Court’s authority before transmission must be determined by construing the relevant provisions of C.I. 19 together and identifying the powers they confer in the circumstances of each case.

[65] I am accordingly of the considered view that, in an ordinary civil appeal, a valid notice of appeal filed pursuant to Rule 9(3) constitutes the originating process by which the appellate jurisdiction of the Court of Appeal is invoked. The Constitution and the relevant statute confer that jurisdiction, the notice of appeal invokes it in the particular case, and the applicable rules of court and settled practice regulate the exercise of the Court’s powers as the appeal progresses. The subsequent transmission of the record and issuance of Form 6 remain procedurally significant because they bring the matters comprised in the appeal within the Court of Appeal’s control and terminate the jurisdiction of the court below over those matters to the extent prescribed by law. They do not, however, constitute the originating process by which appellate jurisdiction is invoked or mark the point at which that jurisdiction first arises. Equally, the invocation of appellate jurisdiction by a valid notice of appeal does not dispense with compliance with the procedural requirements governing the exercise of particular judicial powers.

[66] The settled practice recognised in Origin 8 and applied in Mochcom, read together with Article 137(3) of the 1992 Constitution, which vests the Court of Appeal with the powers of the court from which an appeal is brought; Order 25 rule 1(2) of C.I. 47, which empowers the High Court to grant an injunction before or after trial; and Article 126(2) of the Constitution, provides a sufficient legal basis for recognising a limited jurisdiction to preserve the practical efficacy of a properly instituted appeal. As explained in Merchant Bank Ghana Ltd v Similar Ways Ltd, the absence of an appropriate stay does not, of itself, preclude the grant of another lawful form of protection. Accordingly, where the relief sought is genuinely injunctive in nature, there is no sufficient justification for excluding it from the recognised procedure for repeat applications merely because it is not characterised as a stay of execution or proceedings.

[67] This jurisdiction, however, is neither unrestricted nor available as a means of introducing an entirely new application before the Court of Appeal. To rehash, while the record remains with the court below, that court retains primary responsibility for determining applications for interlocutory relief. Consequently, an applicant seeking to invoke the Court of Appeal’s limited protective jurisdiction must first have applied to the court below for substantially the same relief and have been refused. The procedure for repeat applications is therefore available only in respect of protective relief previously sought and refused by the court below; it cannot be used to introduce an application that is, in substance, a new one.

[68] My Lords, the opening words of Rule 31 of the Court of Appeal Rules, 1997 (C.I. 19), read together with Rule 21 thereof, suggest that the general powers enumerated under Rule 31 are ordinarily exercisable when the Court of Appeal assumes control of the proceedings following the transmission of the record of appeal. It is, however, unnecessary, for the determination of the present application, to pronounce definitively on the extent to which those powers may be exercised before that stage. The question is whether the Rules exclude the exercise of a limited protective jurisdiction in respect of a competent pending appeal. In my view, they do not.

[69] As the jurisprudence of this court establish, the absence of an appropriate stay for example does not necessarily foreclose the availability of another lawful form of protection. Accordingly, in my view where the relief sought is genuinely injunctive in nature, there is no sufficient basis for excluding the application from the recognised procedure for renewing an application previously refused by the court below merely because the relief sought is not characterised as a stay of execution or proceedings.

[70] The foregoing principles and authorities lead to the conclusion that an application for an interlocutory injunction pending appeal, having first been refused by the court below, may competently be renewed before the Court of Appeal notwithstanding that the record of appeal has not yet been transmitted and Form 6 has not been issued, provided that a competent appeal is pending by virtue of a notice of appeal duly filed in accordance with Rule 9(3) of C.I. 19. Such a renewed application must be founded on a genuine intention to prosecute the appeal and must bear a rational nexus to the preservation of the subject matter of the dispute, the parties’ respective positions, or the efficacy of the appellate process.

[71] The jurisdiction so invoked must not, however, be exercised mechanically or as a means of abusing the appellate process. The Court of Appeal retains the discretion to refuse the application where the circumstances do not disclose a genuine intention to prosecute the appeal or where the applicant fails to demonstrate a real risk of irreparable prejudice or other circumstances warranting the grant of the protective relief sought.

[72] Applying these principles to the instant case, the affidavit in support of the application and the exhibits attached thereto establish that the applicant filed a Notice of Appeal against the judgment of the High Court on 7 June 2024; that the applicant first applied to the High Court for an injunction pending appeal, but the application was refused on 5 November 2024; and that the applicant subsequently renewed the application before the Court of Appeal on 21 November 2024.

[73] The ruling impugned in these proceedings does not identify any defect in the Notice of Appeal or otherwise question the competence of the appeal. Rather, the sole basis upon which the Court of Appeal declined to entertain the renewed application was that Form 6 had not been issued in respect of the substantive appeal. The Court held that an application for an injunction that had been refused by the court below could not be renewed before it before the issuance of that form.

[74] In the circumstances, the decisive question is whether the non-issuance of Form 6, without more, constitutes a sufficient legal basis for declining to entertain an otherwise competent renewed application for an interlocutory injunction pending appeal. For the reasons already given, I would answer that question in the negative. Where a competent appeal is pending and the applicant seeks genuinely protective relief previously refused by the court below, the absence of Form 6 should not, in itself, in my respectful opinion be treated as an absolute bar to the exercise of the Court of Appeal’s limited protective jurisdiction.

[75] With the greatest respect, that reasoning proceeds from a fundamental misapprehension of the legal effect of the issuance of Form 6. As demonstrated by the authorities considered above, the issuance of Form 6 does not, in itself, confer appellate jurisdiction on the Court of Appeal. Rather, it marks the transmission of the record of appeal to that Court and the consequential termination of the jurisdiction of the court below over the matters embraced by the appeal. The proposition adopted by the Court of Appeal, that a renewed application for an injunction pending appeal cannot be entertained before the issuance of Form 6 is therefore inconsistent with the applicable rules and the principles established by the authorities, insofar as it fails to recognise the Court of Appeal’s power to entertain a genuine renewed application for protective relief in the circumstances identified above.

[76] In the circumstances, the Court of Appeal declined to entertain an application which, on the reasoning adopted in this opinion, fell within the recognised exception to the general rule governing applications for interlocutory relief before the transmission of the record. Its refusal to entertain the application solely on the ground that Form 6 had not been issued therefore constituted an error of law apparent on the face of the record and a jurisdictional error warranting the supervisory intervention of this Court by way of certiorari.

[77] My Lords, it is important to emphasise that the determination of the procedural issue does not extend to the substantive merits of the application for an injunction. The Court of Appeal has not yet exercised its discretion on those merits and must therefore determine the application independently, in accordance with the applicable law and the relevant circumstances, without treating any observations made by this Court on the procedural issue as determining the substantive merits of the application. Equally, this opinion does not derogate from the settled principle that, while the record of appeal remains in the court below, that court ordinarily retains primary responsibility for entertaining applications for interlocutory relief pending appeal.

[78] This opinion further emphasises the need for caution in the consideration of repeat applications for interlocutory relief, lest the procedure be employed to circumvent the proper appellate process or secure a premature determination of the substantive appeal. A distinction must be drawn between an application genuinely intended to preserve the subject matter of a competent appeal and one which, although presented as an interlocutory or renewed application, effectively invites the Court to determine an issue reserved for resolution in the appeal.

[79] In the former case, the Court must exercise its discretion independently to determine whether the circumstances warrant the preservation of the subject matter of the appeal or the protection of the parties against prejudice that might render the eventual appellate decision nugatory or ineffective. Greater circumspection is, however, required where the decision under appeal is itself a refusal of the interlocutory relief subsequently sought from the appellate court.

[80] In such circumstances, the Court must guard against the use of a renewed application as a disguised means of obtaining an advance determination of the pending appeal. The decisive consideration is whether the relief sought is genuinely preservative and ancillary to a competent appeal or whether granting it would substantially pre-empt the issue that the Court is required to determine in the appeal. vi. Conclusion & Disposition:

[81] My Lords, based on all of the analysis above, I am of the considered opinion that the question set by this Court should be answered in the affirmative, subject to the qualifications necessary to give the answer its proper legal content. I would therefore summarise the position in the following four propositions.

[80] First, the appellate jurisdiction of the Court of Appeal is conferred by Article 137 of the Constitution and section 11 of the Courts Act, 1993 (Act 459). In a particular matter, that jurisdiction is invoked by the filing of a valid notice of appeal in the registry of the court below, which constitutes the originating process of the appeal under Rule 9(3) of C.I. 19.

[81] Secondly, the transmission of the record of appeal, as notified by Form 6, is the event by which the Court of Appeal becomes seised of the proceedings under Rule 21, and the jurisdiction of the court below over the matters embraced by the appeal is thereby terminated. Form 6 thus marks the point at which the court below ceases to exercise jurisdiction over those matters; it does not confer jurisdiction on the Court of Appeal, which was already invoked when the appeal was brought.

[82] Thirdly, between those two events, the court below retains primary responsibility for determining applications for interlocutory relief pending appeal, and an application made in the first instance to the Court of Appeal before transmission of the record is incompetent. However, where the court below has refused the application, a genuine renewed application by the same applicant for substantially the same protective relief may be entertained by the Court of Appeal in the exercise of the powers vested in it by Article 137(3) of the 1992 Constitution and its inherent jurisdiction, notwithstanding that the record has not yet been transmitted and Form 6 has not yet issued.

[83] Fourthly, that competence is not confined to applications for a stay of execution or a stay of proceedings. It extends also to an application for a genuinely preservative injunction pending appeal, provided that the application is tied to a competent appeal. vii. Disposition:

[84] In the result, we make the following orders:

The application for certiorari succeeds and is accordingly granted. The decision of the Court of Appeal (Civil Division), in Suit No. H3/103/2026 dated 14th April, 2026 is to be brought to this court for the purpose of being quashed and same is accordingly quashed.

We hereby direct the Court of Appeal differently constituted to hear and determine the repeat application for injunction pending appeal filed on 21st November, 2024 in the Court of Appeal by the Applicant. Nothing in this ruling should be taken as expressing or implying any view on the merits of the application or on whether the injunction ought to be granted.

(SGD.) K. T. ACKAAH-BOAFO