THE REPUBLIC
vs.
HIGH COURT (GENERAL JURISDICTION 8), ACCRA EX PARTE DANIEL OFORI (APPLICANT)
ECOBANK GHANA LIMITED
(INTERESTED PARTY)
[SUPREME COURT, ACCRA]
CIVIL MOTION NO: J5/93/2024
DATE: JANUARY 22, 2025
COUNSEL
TSATSU TSIKATA ESQ. FOR THE APPLICANT WITH THADDEUS SORY ESQ. AND NANA BOAKYE MENSA-BONSU ESQ.
SEKYERE DUODU ESQ FOR THE INTERESTED PARTY WITH SAMUEL ADUAMUAH ADDO ESQ.
CORAM
LOVELACE–JOHNSON (MS) JSC (PRESIDING), ASIEDU JSC, GAEWU JSC, DARKO ASARE JSC, ADJEI-FRIMPONG JSC
RULING
MAJORITY OPINION
ASIEDU, JSC.
[1.0]. INTRODUCTION
This application for the exercise of the supervisory jurisdiction of this Court, seeks an order of certiorari to quash the ruling of the High Court, dated the 5 day of June 2024, in the case bearing suit number CM/MISC/0829/2021 titled Daniel Ofori vs. Ecobank Ghana Limited. The application also seeks a declaration that the High Court has no jurisdiction to entertain any application to stay execution of a judgment of the Supreme Court, and finally, an order of prohibition restraining the High Court from entertaining any proceedings and/or applications to restrain the execution proceedings (sic) commenced in the suit intituled Daniel Ofori vs Ecobank Ghana Limited (Suit No. CM/MISC/0829/2021) as ordered by the Supreme Court.
[1.1] FACTS:
The applicant says in the supporting affidavit, among others, that the Supreme Court, on the 25 July 2018, entered judgment in his favour to recover the sum of GH₵96,304,972.41 from the Interested Party herein. On the 28 July 2021, the Supreme Court again directed that the judgment of 25 July 2018 be enforced by the High Court. The applicant, therefore, filed garnishee proceedings in suit number CM/MISC/0829/2021 titled Daniel Ofori vs. Ecobank Ghana Limited before the High Court, in an effort to enforce the Judgment entered by the Supreme Court. The High Court, granted an order nisi in the garnishee proceedings. In the meantime, the Interested party herein filed a writ and a statement of claim in suit number GJ/0902/2023 titled Ecobank Ghana Plc vs Daniel Ofori in the High Court for an order to set aside the judgment of the Supreme Court. Suit number GJ/0902/2023 was dismissed by the High Court. The Interested Party appealed against the dismissal to the Court of Appeal and then filed an application for stay of execution of the ruling in suit number GJ/0902/2023 dated 25 September 2023. The application for stay was granted by the High Court on the 16 November 2023.
[1.2]. Following the dismissal by the Supreme Court of an application for certiorari against the ruling of the High Court staying the execution, the Interested Party then filed an application for injunction against the Applicant herein for an order to restrain the applicant from enforcing the judgment of the Supreme Court dated the 25 July 2018. Eventually, the High Court, in a ruling delivered on the 5 day of June 2024, granted the application for injunction and effectively restrained the applicant from going into execution and or taking further steps in execution of the Judgment of the Supreme Court dated 25 July 2018, until the appeal filed by the Interested party in suit number GJ/0902/2023 titled Ecobank Ghana Plc vs Daniel Ofori is finally determined. It is the ruling on the application for injunction made by the High Court on the 5th day of June 2024 which is the subject of the instant application for certiorari.
[1.3]. The applicant says, at paragraph 23 of its supporting affidavit, that:
“23. The High Court’s decision about which I have deposed in paragraph 22 above was made without jurisdiction and contained errors patent on the face of the record which are set out on the face of the motion paper the summary of which are as follows:
vi. The High Court has no jurisdiction [whether constitutional, statutory or even common law] to entertain any process whatsoever to suspend the execution of a final judgment or order of the Supreme Court in respect of which the Supreme Court expressly directed the High Court to execute.
vii. The High Court has no jurisdiction to entertain an application filed in the suit intituled Daniel Ofori v Ecobank Ghana Limited (Suit No. GJ 0829/2021) pending the determination of the Interested Party’s appeal when there is no pending appeal filed in respect of the said suit.
viii. The High Court has no jurisdiction to entertain and determine the Interested Party’s application for an order of interlocutory injunction to stay execution of the judgment of the Supreme Court under the provisions of Order 25 rule 1 and 43 rule 11 of the High Court and also its inherent jurisdiction.
ix. The High Court committed an error patent on the face of the record when it failed to follow and apply the decisions of the Supreme Court all of which held that the Interested Party is not entitled to a stay of execution of the judgment of the Supreme Court the subject of the Interested Party’s application granted by the High Court.
x. The High Court committed an error patent on the face of the record when it failed to follow and apply the decisions of the Supreme Court which held that the High Court has no jurisdiction to entertain a matter to question any judgment of a court higher in hierarchy to the High Court”.
[2.0]. In response, the Interested Party has filed a copious affidavit in opposition. For the sake of brevity, we will quote paragraphs 8, 10, 11, 28, 35 and 36 thereof which states that:
“8. THAT the Interested Party states again that while Applicant was claiming and arguing before the High Court, the Court of Appeal and through to this Honourable Court that he had completely divested himself of the shares and was therefore entitled to payment for those shares, he was at the same time holding himself as owner of the shares and in fact took all the benefits derivable from ownership of such shares and at the same time claiming payment from the Interested Party herein for the purported sale of the shares in addition to interest including compound interest, amounts to unjust enrichment.
10. THAT the Interested Party vehemently denies paragraph 11 of the Applicant’s Affidavit in Support and states that it was advised by its lawyers and verily believe same to be true that the manner by which a party can get a judgment obtained by fraud set aside, is for that party to institute a fresh action against the judgment creditor and plead the alleged fraud with particulars and then prove same with cogent evidence at the trial of the action.
11. THAT it is based on this advice that the Interested Party caused to be issued out of the Registry of the High Court an Amended Writ of Summons and an Amended Statement of Claim in which the Interested Party alleged fraud, and pleaded the particulars of Fraud therein in compliance with the relevant legal framework.
28. THAT the Interested Party further says that the Amended Writ of Summons and Statement of Claim is seeking to declare the impugned judgment of the Supreme Court null and void and therefore it is the subject matter pending at the Court of Appeal.
35. THAT I have been advised by the Lawyer for the Interested Party and verily believe same to be true that the order of the Supreme Court does not preclude the High Court enforcing the judgment of the Supreme Court from entertaining applications that are brought before it until the judgment is levied and thus the High Court had jurisdiction to entertain the interlocutory application of the Interested Party.
36. THAT the Writ of Summons filed by Interested Party herein and currently pending at the Court of Appeal seeks to set aside the impugned Judgment of the Supreme Court dated 25th July, 2018 as same was procured by fraud”.
[3.0]. DETERMINATION:
Ordinarily, when the Supreme Court, as the final appellate Court, orders a lower Court to enforce the judgment of the Supreme Court, the business of the said lower Court is to carry out the orders of the Supreme Court by enforcing the said judgment upon application by the party in whose favour the judgment was rendered. It follows that when this Court made the orders of 28th July 2021, all that the High Court needed to do, upon the filing of the application for garnishee, was to observe due process in accordance with the Rules of Court and enforce the said judgment of the Supreme Court.
The Applicant has deposed in paragraph 11 of his supporting affidavit that, the Interested Party issued a writ of summons with an accompanying statement of claim “for the purpose of persuading the High Court to set aside the judgment of the Supreme Court dated the 25 July 2018. Unfortunately, the applicant did not depose or narrate the indorsement on the said writ of summons issued by the Interested Party for the purpose of setting aside the judgment of the Supreme Court. That omission was supplied by the Interested Party in paragraph 36 of his affidavit in opposition where he deposed that the writ of summons and the accompanying statement of claim “seeks to set aside the judgment of the Supreme Court dated 25 July 2018 as same was procured by fraud”. It is common knowledge, as held in Dzotepe vs. Hahormene III [1987-88] 2 GLR 681 that:
“The settled practice of the Court is that the proper method of impeaching a completed judgment on the ground of fraud is by action in which the particulars of fraud must be exactly given, and the allegation established by strict proof.”
See also the case of Osei-Ansong & Passion International School vs. Ghana Airports Co. Ltd. [2013-2014] 1 SCGLR 25, where the above principle on fraud was re-emphasized by this Court. It must be pointed out that there is no authority to the effect that a judgment of the Supreme Court can never be impeached on the grounds of fraud. It is, therefore, not sacrilegious and neither is it a taboo for a party who has evidence that a judgment of the apex Court has been obtained by fraud, to issue a writ of summons with an accompanying statement of claim to seek, by due process, a declaration to that effect. Indeed, that writ of summons can only be issued before a trial Court. In this case, the writ and the accompanying statement of claim was issued by the Interested Party before the High Court. In suit number J4/ 10/ 2023, titled Isaac Antwi vs Obiri Yeboah Atuahene, a judgment of the Supreme Court delivered on the 18 May 2023, I stated, among others, that:
“It must also be pointed out that, a judgment which is sought to be set aside on grounds of fraud cannot be flagged before a Plaintiff under the pretext that that very judgment which is under attack is as potent as to find and establish estoppel against the Plaintiff who is attacking that very judgment”.
Indeed, when it comes to the observance of the principles of stare decisis, it is only the pronouncement of this Court on matters of law that is binding on lower Courts. Therefore, article 129 (3) of the Constitution is clear that:
“The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other Courts shall be bound to follow the decisions of the Supreme Court on questions of law”.
It follows, therefore, that the High Court may entertain a suit in which a judgment of the Supreme Court is sought to be impeached on grounds of fraud. Whether or not a judgment of a Court was obtained by fraud is a mix question of law and facts. Indeed, where a party pleads fraud in an action, that party is required to give particulars of the alleged fraud and marshal evidence at the trial to prove the allegation of fraud. Order 11 rule 12(1) of the High Court (Civil Procedure) Rules, 2004, CI. 47 comes clear on this principle. It states that:
“12. Particulars of pleading
(1) Subject to sub rule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, but without prejudice to the generality of the foregoing words,
(a) particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies.”
[3.1]. Our attention has been drawn to the case of Republic vs. High Court, Kumasi; Ex parte Asare-Adjei [2007-2008] 2 SCGLR 914 in which Date-Bah, JSC; is reported to have expressed doubt about the ability of a lower Court to set aside a void judgment of a Higher Court for the reason of a potential breach of the doctrine of stare decisis. The learned and distinguished Judge did not state emphatically that that power was not available to the High Court, especially where the judgment of the Higher Court is sought to be impeached on grounds of fraud. The learned judge acknowledged the power inherent in any Court to set aside a void order or judgment of another Court. In Republic vs. High Court, Accra, Ex parte Darke XII [1992] 2 GLR 688, whose majority decision was relied upon by Date-Bah JSC in the Ex parte Asare-Adjei case, Adade JSC stated that:
“Some attempt has been made to persuade the Court that in a number of cases, a recourse back to the High Court from the Court of Appeal is justified. But a study of these cases reveals that in all of them the declarations of nullity were made by a higher tribunal, e.g. in R v. Bolton (1841) 113 E.R. 1054 the Queen’s Bench declared a magistrate’s decision void; in both Agyei II v. Abudulai [1977] 1 G.L.R. 453, C.A. and Togbe Konda v. Togbe Dompre V [1978] G.L.R. 354, C.A. the Court of Appeal sat in judgment over the High Court; in Bakuma v. Ekor [1972] 1 G.L.R. 133, C.A. the declaration was made by the Court of Appeal against a magistrate, on appeal; in Sah v. Darku [1987-88] 1 G.L.R. 123, C.A. it was the Court of Appeal deciding an appeal from the High Court. In Dzotepe v. Hahormene III [1987-88] 2 G.L.R. 681, S.C. the issue had not been pronounced upon by the Court of Appeal and so the High Court was held competent to decide it. See holding (1) of the headnote which states that:
“(1) [T]he settled practice of the Court was that the proper method of impeaching a completed judgment on the ground of fraud was by action in which the particulars of the fraud must be exactly given and the allegation established by strict proof. Fraud was an issue of fact to be determined by the Court. Accordingly, where that issue had not been determined either by the trial Court or the appellate Court, the party alleging it had the right to have that issue determined by any Court of competent jurisdiction at any time . . .”
(The emphasis is mine.) I have not come across a case where an issue having been decided by the Court of Appeal, had gone back to the High Court, as it were, to be verified. I find it difficult to justify the proceedings in the High Court (Omari-Sasu J.), after the intervening proceedings in the Lassey Court of Appeal. It would seem to me therefore that the defendants are in order in bringing the present application. Omari-Sasu J. had no jurisdiction to entertain the action. His decision is void. So also, is the decision of the Court of Appeal arising from it”.
It is very important to lay emphasis on the fact that the above holding by Adade JSC, who was part of the majority in the suit, did not proscribe a High Court from entertaining a suit against a judgment of the Supreme Court where that judgment is alleged to have been obtained by fraud. On the contrary, the decision acknowledges the age-old position of the law that the method by which a decision of a Court could be impeached on grounds of fraud, is by the issuance of a fresh writ of summons in which the setting aside of the impugned judgment for fraud shall be the only relief available to the Plaintiff therein. The only caveat which was added by Amua-Sekyi JSC was that, the trial Court which has been called upon to declare a judgment as a nullity is bereft of jurisdiction where the cause of action which forms the basis for the invocation of its jurisdiction, had been raised and determined by the Court whose decision was under attack. Further, we wish to point out that, the case of Republic vs High Court (Fast Track Division), Accra; Ex parte Forson (Attorney General Interested Party) [2013-2014] 1 SCGLR 690 is no authority for the proposition that a judgment of this Court cannot be the subject of a suit on grounds of fraud before a trial Court. It has not been shown by the Applicant herein that the judgment of this Court, which is the subject matter of suit number GJ/0902/2023, titled Ecobank Ghana Plc vs Daniel Ofori, wherein it is sought to be set aside for fraud, has had the issue of fraud already determined in that judgment to render suit number GJ/0902/2023 susceptible to the rule of estoppel per rem judicatam.
[3.2]. The subject matter of the instant application is that, the High Court Judge entertained and granted an application for an interlocutory injunction restraining the Applicant herein from enforcing or taking steps to enforce the judgment of this Court which was delivered on the 25th July 2018 in favour of the Applicant. The learned High Court Judge gave the reason why the application for injunction was filed. She stated in her ruling, exhibit H herein, that “the application [for injunction] was brought because the applicant has an appeal pending against a decision of the High Court that struck out its pleadings and the whole suit for being an abuse in which the Applicant sought to set aside the said judgment of the Supreme Court dated 25th July 2018 on grounds of fraud. It is this very judgment that the Respondent initiated a case at the High Court to set aside on grounds of fraud that the Respondent is also taking steps to enforce”
It is the submission of the Applicant herein that the High Court has no jurisdiction to entertain the application for injunction to restrain the enforcement of the judgment of the Supreme Court.
The jurisdiction of the High Court is captured in article 140(1) of the Constitution. The article provides that:
“140. Jurisdiction of the High Court
(1) The High Court shall, subject to the provisions of this Constitution, have jurisdiction in all matters and in particular, in civil and criminal matters and such original, appellate and other jurisdiction as may be conferred on it by this Constitution or any other law”.
From the provision above, it is clear that, it is only the Constitution that can curtail the jurisdiction of the High Court. Indeed, the jurisdiction of the High Court, as provided under the Constitution, can only be added upon but not curtailed even by Parliament. The High Court enjoys, under the Constitution, an incremental, as opposed to a reductive, jurisdiction and unless one can point to a provision in the Constitution which curtals the jurisdiction of the High, it cannot be correctly argued that the High Court lacks jurisdiction to entertain and pronounce upon a particular civil matter. Section 15 of the Courts Act, amplifies the jurisdiction given to the High Court under the Constitution. Order 25 rule 1(1) and (2) of the High Court (Civil Procedure) Rules, 2004, CI.47 also gives power to the High Court to entertain applications for injunctions. The said rule provides that:
1. Application for injunction
(1) The Court may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the Court considers just.
(2) A party to a cause or matter may apply for the grant of an injunction before or after the trial of the cause or matter, whether or not a claim for the injunction was included in the party’s writ, counterclaim or third-party notice”.
Clearly, an application for an interlocutory injunction is not a remedy that is beyond the jurisdiction of the High Court of Justice. Indeed, a High Court Judge has jurisdiction and power to entertain and determine, in one way or the other, an application for interlocutory injunction. In the instant matter, the Interested Party herein, had instituted an action per a writ of summons and a statement of claim for a declaration that the judgment of the Supreme Court dated the 25th July 2018, was obtained by fraud. The High Court Judge, upon hearing an application filed by the Applicant herein in respect of the said suit, struck out the writ and dismissed the whole action mounted by the Applicant. Dissatisfied by the judgment of the High Court, the Interested Party, lodged an appeal against the ruling of the High Court dismissing his action. In the meantime, the Applicant was proceeding with the execution of the judgment of 25 July 2018, the very judgment which the Interested Party’s writ and statement of claim sought to declare as having been obtained by fraud. The High Court Judge then entertained and granted an application for injunction to restrain the enforcement of the impugned judgment of 25 July 2018. The High Court Judge, in the humble opinion of this Court, acted within her jurisdiction to entertain and grant the application for injunction.
[3.2]. Article 132 of the Constitution gives power to the Supreme Court to exercise supervisory jurisdiction over lower Courts and other adjudicatory authorities. It states that:
“132. Supervisory jurisdiction of the Supreme Court
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 and directions for the purpose of enforcing or securing the enforcement of its supervisory power”.
The above provision has been expanded in section 5 of the Courts Act, 1993, Act 459 thus:
“5. Supervisory jurisdiction
In accordance with article 132 of the Constitution, the Supreme Court has supervisory jurisdiction over any other Court and over an adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory power”.
This Court, has on numerous occasions, explained the scope of the supervisory jurisdiction conferred on it under the Constitution. In Republic vs. High Court, Kumasi; Ex parte Appiah and Others [1997-1998] 1 GLR 503, the Court held at page 510 that:
“The High Court as a superior Court has jurisdiction to hear and determine all matters except “causes or matters affecting chieftaincy” as defined under section 66 of the Chieftaincy Act, 1971 (Act 370)—vide article 140(1) of the Constitution, 1992. There is however power given to the Supreme Court to exercise supervisory jurisdiction over all Courts (including the High Court) and any adjudicating authority and may in the exercise of such jurisdiction issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power—vide article 132 of the Constitution, 1992. Consequently, if it is found that the High Court in exercising its jurisdiction has breached any of the rules of natural justice or on the face of its orders erred in law, or has acted in excess of its jurisdiction or lacks jurisdiction in the matter it has acted on, this Court would have power to order the removal of those proceedings before it for the purpose of having those proceedings quashed. It must be stated however that a prayer for the grant of certiorari must be considered from a very broad perspective and that being a discretionary power, it must be shown that there is a real justification for its grant”.
The prerogative writ of certiorari is not given just for the asking. There must be reasonable grounds for the grant of certiorari. It must be shown that, the Judge or the arbiter whose decision is sought to be quashed had no jurisdiction at all to embark upon the enquiry resulting in the decision sought to be quashed. It must be shown, if he had jurisdiction to embark upon the enquiry, that he exceeded his jurisdiction when exercising his powers given to him. A breach of the rules of natural justice is also a ground for the grant of the prerogative writ of certiorari. When it comes to the exercise of the prerogative writ of certiorari with respect to decisions of the High Court, in view of the fact that the High Court is also part of the superior Courts of judicature by virtue of the provisions of article 126(1) of the Constitution, 1992, a great deal of caution is exercised. In that, it is not every error of law committed by the High Court of Justice that should lead to the exercise of the remedy of certiorari against decisions of the High Court; otherwise, that will lead to disabling the High Court from discharging its constitutional functions and also impede the right of appeal against the decisions of the High Court where mistakes or errors are committed by the High Court. Hence, this Court has pointed out that it is only errors of law which go to the jurisdiction of the High Court that should lead to the grant of certiorari against. Those errors of law must necessarily lead to a deprivation of the jurisdiction of the High Court. In Republic vs Court of Appeal, Accra; Ex parte Tsatsu Tsikata [2005-2006] SCGLR 612, this Court held that the prerogative writ of certiorari will be granted by the Court against decisions of the High Court:
“Only in those manifestly plain and obvious cases where there are patent errors of law on the face of the record, which errors either go to jurisdiction or are so plain as to make the impugned decision a complete nullity”.
The reason for the stance taken by this Court in the case just cited, is partly given in the case of Republic vs High Court, Kumasi; Ex parte Fosuhene [1989-1990] 2 GLR 315 where the Court stated in no uncertain terms that:
“Where a Court had jurisdiction, he had jurisdiction to be wrong as well as to be right and the corrective machinery in those circumstances is an appeal”.
Again, this Court pointed out in Republic vs High Court, Koforidua; Ex parte Otutu [2009] SCGLR 1 that:
“Even if the trial Judge had erred in his appreciation of the facts and conclusions drawn from them, that would be a matter for appeal; it would not be an egregious error of law apparent on the face of the record, curable by certiorari. The special supervisory jurisdiction inserted in the Constitution, 1992 by its framers, had been abused by legal practitioners who had been filing numerous applications in the Court for supervisory orders which clearly should be pursued on appeal”
[3.3]. The applicant herein also seeks from this Court “an order of prohibition restraining the High Court from entertaining any proceedings and or applications to restrain the execution proceedings commenced in suit intituled Daniel Ofori vs Ecobank Ghana Limited [Suit No. CM/MISC/0829/2021] as ordered by the Supreme Court. The writ of prohibition is mostly issued to restrain a biased Judge or arbiter from continuing to hear and determine a matter pending before him in which he had exhibited bias. In Republic vs High Court, Denu; Ex parte Agbesi Awusu II (No.1) (Nyonyo Agboada (Sri III) Interested Party) [203-2004] SCGLR 864, this Court stated at page 873 that
“an order of prohibition would issue to prohibit such a biased judge from further adjudicating the case as well as an order of certiorari to quash the proceedings in deserving cases.”
The Court held ultimately that:
“A charge of bias or real likelihood of bias must be satisfactorily proved on balance of probabilities by the person alleging same. Whether there existed a real likelihood of bias or apparent bias was an issue of fact determinable on a case-to-case basis. Furthermore, where a judge had foreknowledge of the very issues of fact to be determined, that would disqualify him from sitting”.
We have perused the affidavit in support and the affidavit in reply filed by the applicant herein. Indeed, no where in the two affidavits has it been remotely alleged that the trial High Court Judge, the Respondent herein, apart from entertaining the application for injunction, exhibited any conduct that could be interpreted to mean bias or a real likelihood of bias on her part. Further, the applicant has not proved any bias or real likelihood of bias against the learned trial Judge.
[4.0]. We are satisfied on all the affidavit evidence placed before us in this application, that the Applicant herein has not succeeded in making out a case for the grant of the prerogative writ of certiorari against the decision of the High Court dated the 5 day of June 2024. We are equally satisfied that the Applicant has not succeeded in making a case for the grant of the remedy of prohibition against the learned trial Judge in this matter. We find no merit in the instant application and therefore proceed to dismiss the application.
(SGD.) S. K. A. ASIEDU
(JUSTICE OF THE SUPREME COURT)
(SGD.) A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) Y. DARKO ASARE
(JUSTICE OF THE SUPREME COURT)
DISSENTING OPINION
ADJEI-FRIMPONG JSC:
The final judgment of the highest court of this land, however received, must be solemnly revered and obediently enforced. It must require some rock-hard legal grounds for any court to, in any way, attempt to obstruct such enforcement. The virtues of the hallowed principles of precedent and stare decisis must always be preserved. The framers of our 1992 Constitution prescribed this attitude to us when in according the principles the deserved constitutional prominence, they provided in article 129(3) thus: “The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”
Where therefore, a lower court on any shaky grounds, attempts to run down the enforcement of the judgment of this Court, it is our duty to meet it with severe discountenance and strong deprecation. It is in the strength of my conviction in these sentiments that I part ways with my revered colleagues in deciding this application. I proceed to express my views in the following dissenting opinion.
As the record will show, the case itself has had an eventful trajectory. For purposes of this application however, I shall briefly recount the following. On 25 July 2018, this Court, in exercise of its jurisdiction as the final appellate Court delivered judgment in Civil Appeal No. J4/11/2016 which involved the parties in this application. By the said decision, the Court reversed the judgment of the Court of Appeal which had affirmed the judgment of the trial High Court. Put shortly, this Court determined that the judgments of the two lower courts were in error.
After several post-judgment applications, the Court on 28 July 2021, made an order for the enforcement of its judgment as follows:
“BY COURT
We are of the opinion that since this application is for the enforcement of a judgment which was brought on appeal before us, the trial High Court should be the Court to enforce the judgment. We hereby order that the execution process be done at the High Court, in view of the jurisdiction conferred on us under Rule 28 of the C.I 16, Supreme Court Rules of 1996.”
On the back of this order, the applicant commenced garnishee proceedings in the High Court which issued an order nisi on 21 August 2021. By the applicant’s Exhibit B, the garnishee proceedings were commenced in Suit No. CM/MISC/0829/2021 intituled DANIEL OFORI—PLAINTIFF /J/C/APPLICANT VRS ECOBANK GHANA LTD—DEFENDANT/J/D/RESPONDENT.
Apparently aggrieved by the judgment of this Court and the ensuing enforcement proceedings, the Interested party commenced a fresh action in the High Court seeking to set aside this Court’s judgment on grounds of fraud. This was Suit No GJ/0902/2023 intituled ECOBANK GH LTD—PLAINTIFF VRS DANIEL OFORI – DEFENDANT.
Upon an application by the applicant herein to strike out pleadings in the said suit pursuant to Order 11 rule 18 of the High Court (Civil Procedure) Rules, C.I 47, the High Court per Abena Amponsah Buansi J (Buansi J) struck out the Interested party’s pleadings and dismissed the suit as an abuse of the Court’s process. Her view on the fraud allegation was that the Supreme Court had, in related proceedings rejected the material particulars on which the fraud allegation was made and therefore, there was nothing to contest. The following were her words:
“A study of the Plaintiff’s pleadings discloses that the same grounds and arguments that were put before the Supreme Court in the application to enable them prove fraud on the part of the Applicant, are the same grounds on which this suit is premised. The Supreme Court having refused to grant the applications on the finding that the Respondent’s allegations do not amount to fraudulent acts on the part of the Applicant, I find that there is nothing further for this Court to enquire into.”
The Interested Party, as it was entitled to, appealed against the ruling of Buansi J at the Court of Appeal. This appeal must still be pending. The interested Party then filed an application for stay of execution of the said ruling in the High Court. A differently constituted High Court granted the application for stay. The ruling is contained in the applicant’s Exhibit D.
The applicant subsequently filed an application before this Court invoking its supervisory jurisdiction to bring up Exhibit D for the purpose of being quashed. The applicant in that application felt that the ruling in Exhibit D had the effect of staying the execution of the Supreme Court, an order it was argued, the High Court had no jurisdiction to make. However, this Court in that application took the view, on examining Exhibit D that all the order sought to do was to stay the execution of the ruling of Buansi J and not the judgment of the Supreme Court. The application was therefore dismissed. This Court’s ruling is Exhibit E.
It was following the ruling in Exhibit E that the Interested Party, still unperturbed, filed an application before the High Court in which it prayed the following:
“…an order of Interlocutory Injunction retraining the Plaintiff/Respondent (Respondent) herein whether by himself, his agents, privies, assigns, successors, attorneys, representatives howsoever described from enforcing or asserting any right arising from the impugned Judgment of the Supreme Court dated 25 July, 2018 which granted some of the reliefs contained in Respondent’s Writ of Summons pending the final determination of the Appeal pending before the Court of Appeal
AND for the avoidance of doubt a further order of injunction restraining the Respondent from taking any further step in the garnishee proceedings commenced by the Respondent in the suit herein with Suit No. CM/MISC/0829/2021 pending the final determination of the Appeal pending before the Court of Appeal, upon the grounds contained in the accompanying affidavit in Support.”
By its ruling attached to the applicant’s affidavit as Exhibit H, the High Court granted the said application. This is the ruling under attack in this application by which the supervisory jurisdiction of this Court is invoked pursuant to Article 132 of the Constitution and Rule 61(1) of the Supreme Court Rules, C.I 16 (1996).
The application has been mounted on the following grounds:
i. The High Court has no jurisdiction [whether constitutional, statutory or even common law] to entertain any process whatsoever to suspend the execution of a final judgment or order of the Supreme Court in respect of which the Supreme Court expressly directed the High Court to execute.
ii. The High Court has no jurisdiction to entertain an application filed in the suit intituled Daniel Ofori v Ecobank Ghana Limited (Suit No. GJ 0829/2021) pending the determination of the Interested Party’s appeal when there is no pending appeal filed in respect of the said suit.
iii. The High Court has no jurisdiction to entertain and determine the Interested Party’s application for an order of interlocutory injunction to stay execution of the judgment of the Supreme Court under the provisions of Order 25 rule 1 and 43 rule 11 of the rules of the High Court and also its inherent jurisdiction.
iv. The High Court committed an error patent on the face of the record when it failed to follow and apply the decisions of the Supreme Court all of which held that the Interested Party is not entitled to a stay of execution of the judgment of the Supreme Court the subject of the Interested Party’s application granted by the High Court.
v. The High Court committed an error patent on the face of the record when it failed to follow and apply the decisions of the Supreme Court which held that the High Court has no jurisdiction to entertain a matter to question any judgment of a court higher in hierarchy to the High Court.
On these grounds, the applicant seeks the following reliefs:
i. An order of certiorari directed at the High Court, General jurisdiction 8, to bring up into this Court for purposes of being quashed and quashing the ruling of Her Ladyship Justice Ellen Mireku dated the 5 day of June 2024 in the case intituled Daniel Ofori v Ecobank Ghana Limited (numbered Suit No. CM/MISC/0829/2021).
ii. A declaration that the High Court has no jurisdiction to entertain any application to stay execution of a judgment of the Supreme Court.
iii. An order of prohibition restraining the High Court [General Jurisdiction 8] from entertaining any proceedings and/or application(s) to restrain the execution proceedings commenced in the suit intituled Daniel Ofori v Ecobank Ghana Limited (Suit No. CM/MISC/2021) as ordered by the Supreme Court,”
At this stage, let me summarize the arguments by the applicant as put forth under the various grounds of the application.
Counsel argues under the first ground that the High Court had no jurisdiction whatsoever to entertain any process to suspend the enforcement of a final judgment, order or decree of the Supreme Court. Counsel contends that it is entirely within the province of every court to enforce its judgments, orders or decrees. Accordingly, no court apart from the court which made the order sought to be enforced, has power to enforce the judgment, order or decree of another court. Conversely, it is only the court that gave the judgment, order or decree sought to be enforced that has power to suspend its enforcement unless a rule expressly permits another court to make any such order. REPUBLIC VRS HIGH COURT, KUMASI, EX PARTE HANSEN KWADWO KODUA (PARAGON INVESTMENT INTERESTED PARTY [2015-2016]2 SCGLR 1349 cited.
Counsel refers to Rule 28 of the Supreme Court Rules, C.I 16 (1996) as amended which prescribed to the Supreme Court the power to order the High Court to enforce its judgment as contained in Exhibit A. Thus, the High Court was obliged to enforce the judgment of the Supreme Court in terms of the Exhibit A. The High Court therefore had no jurisdiction to go beyond the confines of Exhibit A to impose conditions of its own such as staying or suspending the execution of the judgment of the Supreme Court. REPUBLIC VRS HIGH COURT, ACCRA, EX PARTE KUMOJI [2000] SCGLR 211 cited.
On the second ground, Counsel observes that the Interested Party’s application for injunction and the ruling, subject matter of this application was made in Suit No. CM/MISC/0892 intituled DANIEL OFORI VRS ECOBANK GHANA LIMITED. That was the suit in which the garnishee proceedings were commenced. Counsel notes that in respect of that suit, there is no appeal pending. The pending appeal was in respect of the suit in which Buansi J delivered the ruling dismissing the Interested Party’s action. That was Suit No. GJ 0902/23 intituled ECOBANK GHANA LTD VRS DANIEL OFORI.
Counsel contends that in the absence of an appeal pending in the former suit, the High Court could not have assumed any jurisdiction to suspend or stay execution of the judgment of the Supreme Court. Citing the case of ANANG SOWAH VRS ADAMS [2009] SCGLR 111 for support, Counsel argues that an application for stay or suspension or injunction as in this case, could have only drawn its life from a pending appeal. In this case, given that no appeal was pending in the suit in which the ruling was made, the High Court had no jurisdiction to entertain the application. Also cited is STANDARD CHARTERED BANK GHANA LIMITED VRS WESTERN HARDWOOD LIMITED & ANOR [2009] SCGLR 196.
Under the third ground, Counsel for the applicant questions the jurisdiction of the High Court under Order 25 rule 1 and Order 43 rule 11 of the High Court (Civil procedure) Rules, (C.I 47) to grant an interlocutory injunction to restrain the enforcement of the judgment of the Supreme Court. In Counsel’s argument, neither of the rules has conferred any such jurisdiction on the High Court for that purpose.
It is argued that the High Court’s jurisdiction in Order 25 rule 1 pertains to matters pending before the court as trial court but before it delivers its final judgment. Referring to an article by a former Justice of this Court, the word “interlocutory” is rooted in two Latin words; inter (between) and “loquor”, loqui (to speak). The word “interlocutory” therefore means “speaking between”. Thus, the word is understood to mean speaking between the beginning and the end of an action. An interlocutory order therefore means an order that can be made by the High Court between the institution of the action and the final judgment in the same action before it. (See Adade, N.Y.B., Miscellany-at-law; Interlocutory Matters Under the High Court Rules [1987-88] Vol. XVI, RGL 60-70).
Counsel also relies on the following passage from Justice Osei-Hwere from the same publication at Page 41—53:
“Interlocutory matters, as the expression signifies, are concerned with those matters done during the pendency of a law-suit and which are not final. The spectrum of these matters is very wide and may cover activities as the removal of a writ, substituted service, striking out and adding parties, ordering further and better particular, striking out pleadings, amendment of pleadings, interlocutory proceedings from the summons level to the directions stage, discovery by interrogatories, discovery of documents, production of documents, etc.”
He argues that an interlocutory injunction under Order 25 rule 1 is to enable the High Court determine the merits of the case before it. After the determination, the court becomes functus officio as there is no matter pending before it which requires the making of an interlocutory order pending the trial and judgment. For this reason, the High Court had no jurisdiction to entertain the Interested Party’s application for interlocutory injunction under Order 25 rule 1. Even if, submits Counsel, the citation of Order 25 rule 1 was merely erroneous, the High Court still has no jurisdiction to entertain an application for an order of interlocutory injunction pending appeal because the Interested Party had no appeal pending in respect of the garnishee proceedings {Daniel Ofori v Ecobank Ghana Limited, No. CM/MISC/0829/2021].
Neither could the High Court exercise any jurisdiction pursuant to Order 43 rule 11 which provides as follows:
“Without prejudice to Order 45 rule 15, a party against whom a judgment or order has been given or made may apply to the Court for stay of execution of judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant the relief, on such terms as it thinks just.”
According to Counsel, the judgment or order in the above provision can only refer to judgment or order of the High Court and not judgment of the Supreme Court which is only to be enforced on the specific orders of the Supreme Court. Consequently, the High Court had no jurisdiction to entertain the Interested Party’s application under Order 43 rule 11.
The applicant’s argument on the 4 ground is simply that, in this Court, the Interested party has mounted several applications all in attempts to secure a stay execution of this Court’s judgment all of which failed. The grounds on which those applications were mounted were the same as those for which the High Court granted the interlocutory application to restrain the execution of the judgment. In the words of Counsel:
“It is a sheer travesty of justice for the Interested Party to continue stultifying decisions of the Supreme Court that have gone against it by starting proceedings in the High Court invoking fraud claim that the Supreme Court has held to have no substance and thrown out a number of times previously. When on that basis, a High Court purports to stay execution of Supreme Court’s judgments and orders, that ruling is without jurisdiction both because the application before the High Court was not for stay of the Supreme Court judgment and also because that amounts to a subversion of the constitutional hierarchy of the courts, as Dr Date-Bah JSC explicitly recognized in Republic v High Court, Kumasi, Ex parte Asare -Adjei.”
The applicant’s final ground which is closely related to the above, contains the argument that the High Court committed a plain error apparent on the face of the record when it failed to follow and apply the decisions of the Court which held that the High Court has no jurisdiction to entertain a matter to question any judgment of a court higher in hierarchy to the High Court. It is contended that by the principle of estoppel per rem judicatam the High Court has no jurisdiction to entertain any proceedings to re-open for determination the very matters determined by the Court against the Interested Party. The list of cases cited in support of this ground are REPUBLIC VRS HIGH COURT KUMASI, EX PARTE ASARE-ADJEI [2007-2008]2 SCGLR 914; REPUBLIC VRS HIGH COURT, ACCRA; EX PARTE DARKE XIII; REPUBLIC VRS HIGH COURT (FAST TRACK DIVISION) ACCRA; EX PARTE FORSON (ATTORNEY-GENERAL INTERESTED PARTY) [2013-2014]1 SCGLR 690; REPUBLIC VRS HIGH COURT (FAST TRACH DIVISION) EX PARTE; SPEEDLINE STEVEDORING CO. LTD (DOLPHYNE INTERESTED PARTY) [2007-2008]1 SCGLR 102; REPUBLIC VRS HIGH COURT, KUMASI, EX PARTE; NSIAH [1994-95] Vol 2 GBR 593; REPUBLIC VRS NATIONAL HOUSE OF CHIEFS, EX PARTE AKROFA KRUKOKO II (ENIMIL VI INTERESTED PARTY) (No.2) [2006]DLSC 17802.
Now, the Interested Party’s responses. The mainstay of the Interested Party’s argument is that the High Court granted the application in question in exercise of its discretion. Therefore, if the applicant is unhappy or aggrieved by the decision, the remedy is appeal and not the invocation of the supervisory jurisdiction of this Court. Counsel refers to a statement by this Court, which is supported by a number of authorities, that the High Court in exercise of its powers may either be right or wrong, and the remedy will be to go on appeal, the supervisory jurisdiction of this Court being a special one. The cases cited are REPUBLIC VRS HIGH COURT, LAND DIVISION, ACCRA; EX PARTE AL-HASSAN LTD (THADDEUS SORY INTERESTED PARTY [2011]1 SCGLR 478; REPUBLIC VRS HIGH COURT, KOFORIDUA, EX PARTE; OTUTU [2009] SCGLR 1; REPUBLIC VRS HIGH COURT, KUMASI; EX PARTE FOSUHENE [1989-90]2 GLR 315; REPUBLIC VRS HIGH COURT, ACCRA, EX PARTE ASAKUM ENGINEERING CONSTRUCTION LTD & ORS [1993-94]2 GLR 643.
The interested Party’s further argument hinges on the fact that in respect of the subject injunction application, the applicant filed processes, first to have the application dismissed and later to participate fully in the hearing by filing legal arguments. Having done so therefore, the High Court was enabled to determine the application and it is now wholly misplaced, procedurally and substantively to urge on this Court to quash the exercise of the discretion.
Additionally, it is contended that once there was an action to set aside the judgment of the Supreme Court on grounds of fraud, the High Court was right and competent to stay the execution of the judgment in order to prevent grievous damage. There were no fetters or restrictions on the jurisdiction of the High Court under Order 25 rule 1 whenever the Court found it just or convenient to grant injunction. And again, the power of the High Court to grant injunction under Order 43 rule 11 has been exercised countless times after judgment has been delivered. In any case, the garnishee proceedings initiated by the applicant to enforce the impugned judgment of the Supreme Court were in the form of a trial and the parties including the Interested Party had the right to file an appropriate application to restrain the grant of same.
Whilst admitting that generally, per constitutional imperatives, and regarding the hierarchy of courts, the judgment of the Supreme Court stands in finality to all, it is nonetheless important to underscore the judicially decided exception that finality stands inoperative to impeaching the judgment on grounds of fraud. It is the impeachment of the judgment on grounds of fraud which has necessitated the suspension of the judgment which is permissible in law. BOI STOOL & 13 ORS VRS DANIEL ADDOQUAYE & 2 ORS Civil Appeal No. J4/13/2020 dated 22 March 2023 cited.
To begin with, Article 132 of the 1992 Constitution creates the supervisory jurisdiction of this Court as follows:
“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 and direction for the purpose of enforcing or securing the enforcement of its supervisory power.”
The scope and purpose of this power have been recognized by this Court in several of its decisions including that in ACCRA RECREATIONAL COMPLEX LTD VRS LANDS COMMISSION [2007-2008]1 SCGLR 108 at page 118—119 thus:
“The issue of the supervisory writs is consigned to the interpretation provision of chapter eleven of the 1992 Constitution, namely, article 161 which read in part:
“‘supervisory jurisdiction’ includes jurisdiction to issue writs or orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto.” Thus, the distinction made in Republic v High Court Registrar, Kumasi; Ex parte Yiadom I [1984-86]2 GLR 606 at 617, SC (per Adade JSC) between supervisory powers generally and supervisory powers relating to issue of prerogative writs or orders, has gained constitutional acceptance in article 132 of the 1992 Constitution. The purpose of the constitutional provision is to enable the Supreme Court to control the actions of all other courts in matters not necessarily involving the issuance of prerogative writs and orders but also to issue such orders and give such directions as would ensure fairness and the expeditious disposal of cases. The court, in issuing such orders and directions, does not go into the merits of the case.”
The Court again in BRITISH AIRWAYS VRS ATTORNEY GENERAL [1996-97] SCGLR 547 at 553 observed:
“This jurisdiction ought to be exercised in appropriate and deserving cases in the interest of justice. In the exercise of that supervisory jurisdiction, the Supreme Court may issue prerogative orders as well as any appropriate orders, and directions, to lower courts to ensure the proper, lawful and fair administration of justice in any matter which comes before it.”
Touching on the grounds to exercise the jurisdiction, Brobbey JSC in the ACCRA RECREATIONAL COMPLEX case (supra):
“In general terms, the grounds for the exercise of the supervisory jurisdiction of this court are:
“(i) where there has been excess of jurisdiction fixed by the 1992 Constitution or a statute;
(ii) where there has been want of jurisdiction, as it happened in Republic v Court Appeal; Ex parte Ekuntan II [1989-90]2 GLR 168 and Republic v High Court, Koforidua; Ex parte Otu [1995-96]1 GLR 177;
(iii) where there has been error of law patent on the face of the record in such a way as to render the decision a nullity as illustrated in Republic v High Court, Accra Ex parte Industrialization Fund for Developing Countries [2003-2004]1 SCGLR 348 and
(iv) where there is breach of natural justice: see Aboagye v Ghana Commercial Bank [2001-2002]2 SCGLR 797. To these was added a fifth one described as the intervention powers of this court as enunciated in British Airways v Attorney-General [1996-97] SCGLR 547.”
The grounds were further highlighted by Wood JSC (as she then was) in the oft cited case of REPUBLIC VRS COURT OF APPEAL, ACCRA, EX PARTE; TSATSU TSIKATA [2006-2006] SCGLR 612 at 619 thus:
“Our supervisory jurisdiction under article 132 of the 1992 Constitution, should be exercised only in those manifestly plain and obvious cases, where there are patent errors of law on the face of the record, which error either go to jurisdiction or are so plain as to make the impugned decision a complete nullity. It stands to reason then, that the error(s) of the law as alleged must be fundamental substantial, material, grave or so serious as to go to the root of the matter…A minor, trifling, inconsequential or unimportant error which does not go to the core or the root of the decision complained of; or stated differently, on which the decision does not turn would not attract the court’s supervisory jurisdiction.”
The applicant in this case alleges five grounds which I consider as falling under two main groupings; Apparent want of jurisdiction which covers the first three grounds and error of law patent on the face of the record that nullifies the ruling which captures the last two grounds.
As narrated earlier, at the time the trial judge granted the injunction to suspend the execution of the judgment of this Court, the appeal pending was in respect of the fraud suit dismissed by Buansi J. There was no appeal pending in the garnishee proceedings which involved the execution of this Court’s judgment. The trial court however felt it still had power to assume to injunct the garnishee proceedings citing the appeal in the fraud suit. The issue that emerges and which I think captures the entire jurisdictional error controversy is this; in the absence of any appeal pending in the garnishee action and given that the garnishee emanated from the express order of the Supreme Court, could the trial court assume any form of jurisdiction at all, to entertain and grant an application to injunct the execution process? Before I address this issue, let me attend to a few connected points.
In ordering the enforcement of its judgment, this Court cited its power under Rule 28 of C.I 16. It is provided under the Rule as follows:
“28. Where the Court directs any judgment or order to be enforced by any other court, certificate in the Form 12 set out in Part I of the Schedule to these Rules under the seal of the Court and the hand of the presiding Justice setting out the judgment or order shall be transmitted by the Registrar to that other court, and the latter shall enforce the judgment or order in terms of the certificate.”
What then is the scope of authority of a trial court when it is ordered to enforce a judgment of an appellate court, in this case, that of the Supreme Court? What is the mandate of the ‘enforcing court’ if I can call it?
I believe the answer must first be sought from the language of the Rule 28 itself. It is that, the enforcing court shall enforce the judgment or order in terms of the certificate issued as in Form 12.
A look at Form 12 of PART I of the Schedule to the Rules shows that the material part to be completed is as follows:
“… This appeal came on for hearing on the day of before in the presence of for the appellant……….and for the respondent …………… I HEREBY CERIFTY that an order was made as follows:
……………………………………………………..
………………………………………………………
Given under my hand and the Seal of the Supreme Court this day of
…………………………………………………….
Justice of the Supreme Court”
The enforcing court is to enforce the judgment in terms of the order that is to be inserted in the space provided in the Form 12 above and as given under the hand of the presiding Justice and the Seal of the Court. The court cannot go beyond the bounds of the certificate. The certificate defines the perimeters of the decision to be enforced and is as well a pointer to what the enforcing court and to a large extent the parties can or cannot do. There is clear limitation on the powers of the court and I believe the rights of the parties are also circumscribed. This was the position of this Court in REPUBLIC VRS HIGH COURT, ACCRA, EX PARTE KUMOJI [2000] SCGLR 211 where KPEGAH JSC held at 245 of the report thus:
“The High Court is obliged to enforce the judgment “in terms of the certificate”. This should therefore put a necessary limitation on or curtail the rights of the judgment debtors. Since the certificate did not impose any terms, namely, payment by instalments, the High Court cannot go beyond the confines of the certificate and impose any terms or conditions on its own, because it has no discretion in the matter. The reasoning of Edusei J is clearly subversive of the time-honoured principle that in rei publicae finis litum which appears to be the main reason behind the provision in the law that the court directed “shall enforce the judgment or order in terms of the certificate”.
The learned judge in the above passage was taking exception to the position of Edusei J in the case of LABONE WEAVERS ENTERPRISE VRS BANK OF GHANA [1977]2 GLR 157 where as an ‘enforcing judge’ Edusei J had espoused that if the judgment creditors can go into execution to realise the fruits of their judgment in the High Court, then it stood to reason that the judgment debtors could exercise corresponding remedy of stay of execution and payment by instalments. It was this position which was rejected in the EX PARTE KUMOJI on the basis that the High Court had no discretion in the matter and that its mandate was to enforce the judgment in terms of the certificate. The Court in EX PARTE KUMOJI quashed the order of the High Court Coram Farkye J (as he then was) staying the execution of the judgment of the Supreme Court which had affirmed the decisions of the two lower courts.
My little difficulty in this discourse is that I did not see a certificate pursuant to Rule 28 exhibited in this application. All we have is Exhibit A which is the order the Court made. But I am less troubled by that. It was not challenged in the garnishee proceedings that there was no such certificate. The point has not been raised anywhere in this application. To my mind, from the strenuous manner in which applications in this suit have been fought, the point would have been raised if no such certificate was obtained before the commencement of the garnishee proceedings. In all probability, it seems one was issued. In any case, the presumption of regularity operates in favour of the issuance of the certificate unless a contrary evidence is provided, and I find no such contrary evidence. I believe the maxim, omnia praesumuntur rite et solemniter esse acta donec probetur in contrarium is applicable here. Even if I were to proceed on the basis that no such certificate was issued, the effect will still be fatal to the instant application. For in that case, every process brought upon the order of this Court to enforce its judgment including the garnishee proceedings and the application for injunction would be a nullity as the High Court would have acted without jurisdiction. See EX PARTE KUMOJI. But as I have said no point about the certificate has been raised and I think nothing turns on it in this application.
In any event, it is beyond question that the judgment of this Court was for payment of money. It was on the strength of this that the garnishee proceedings were commenced and the order nisi granted in terms of Exhibit B. It is inconceivable that a certificate under Rule 28 and Form 12 would encompass a power to grant stay of execution or injunction to suspend the execution. Put differently, it is unthinkable that this Court would make an order under Rule 28 and in that same order grant the enforcing Court power to suspend execution. If there is any doubt about this, I think Exhibit A clears it. Consequently, the question as to how the High Court could assume jurisdiction to suspend the execution of this Court’s judgment when its mandate was defined by Rule 28 still remains unanswered.
Still on the subject of the mandate of an enforcing court, another recourse is to look at the nature of the judgment being enforced. Is it a judgement of the trial court which has been merely affirmed on appeal or the appeal judgment altered the original judgment to make it emerge as a new judgment?
It will be noted that the judgment of this Court delivered on 25 July 2018 was one that had overturned the judgment of the Court of Appeal which had affirmed the judgment of the trial High Court. That is to say, this is not a judgment which merely affirmed the judgment of the High Court as the trial court. Had it been so, one could argue that the judgment to be enforced would be that of the High Court and therefore in enforcing its own judgment, the High Court could assume the power to stay or suspend the execution of its judgment. See LABONE WEAVERS ENTERPRISE VRS BANK OF GHANA and EX PARTE KUMOJI (supra) and REPUBLIC VRS DUFFOUR, EX PARTE ASARE 2007-2008]1 SCGLR 394.
In this case, the Supreme Court overturned the decisions of both the High Court and the Court of Appeal. As a matter of fact, the High Court had dismissed the applicant’s action before it, chiefly on the ground that the transaction of the shares in question was not completed. In the Court of Appeal, the applicant had maintained his argument that the sale transaction was completed and that he had ceased to be the owner of the shares which had passed on to the purchaser. This position was again dismissed. Here in the Supreme Court, it was held by the judgment of 25 July 2018 that the sale was completed and that the shares had passed on to the purchaser (Oppong Bio). The applicant was therefore, in this Court’s judgment, entitled not only to the value of the shares but also interest on the amount. Without doubt therefore, the judgment that was to be enforced was purely that of the Supreme Court and as pointed out, the High Court had no discretion outside its mandate in Rule 28.
For the foregoing reasons, and given that this was a judgment of the Supreme Court which was to be enforced on the express orders of the Court made pursuant to Rule 28, I do not think the High Court was seized with any form of jurisdiction to entertain and/or grant the application for injunction. The High Court had no discretion in the matter whatsoever to exercise. Its duty was to enforce the judgment as ordered.
But even more compelling is the reason that there was no appeal pending in the garnishee action. Generally speaking, it is out of a pending appeal that an injunction to suspend execution or enforcement of a judgment on appeal will draw its life. An injunction pending appeal must come hanging on an appeal filed in the particular action. See ANNAN SOWAH VRS ADAMS [2009] SCGLR 111.
When in the case of MERCHANT BANK GHANA LTD VRS SIMILAR WAYS LTD. [2012] SCGLR 440, this Court granted an order suspending an entry of judgment (and for that matter execution), even on the peculiar circumstances of the case, it was on the basis that an appeal was pending against that judgment which if succeeded would render the judgment a nugatory. Atugubah JSC thus delivered himself as follows at page 448-449 of the report:
“If a stay of execution cannot lie, other remedies may lie. One such remedies can be the suspension of the entry of judgment. In that event, the effect of the judgment itself is temporarily frozen and the incidental processes such as execution cannot fly not because execution thereof is stayed but because the life of the judgment itself is in coma. This measure would prevent the eventual success of the applicant’s appeal being rendered nugatory.”
The learned judge had sought support from the case of THE SECRETARY OF STATE FOR TRADE AND INDUSTRY VRS BARNISTER [1996] ALL ER 993 where at page 997, MORRIT LJ observed:
“It is not disputed that an appeal lies to the Court of Appeal from a disqualification order made in the High Court or the county court. As with any appeal, the Court of Appeal has power to make any order which the court below might have made. Thus, the period of the disqualification may be extended or reduced or discharged altogether. In those circumstances, it would be surprising if the court did not possess the lesser power to stay or suspend its order pending appeal.”
The principle had been espoused in the case cited as POLINI VRS GRAY, STURLA FRECCIA [1879]12 CH D 438 at 446 in the words of COTTON LJ:
“I see no difference in principle between staying the distribution of the fund to which the court has held the Plaintiff not to be entitled, and staying execution of an order by which, the court has decided that a Plaintiff is entitled to the fund. In that case, as, in this case, the Court pending an appeal to the House of Lords, suspends what it has declared to be the right of one of the litigant parties. On what principle does it do so? It does so on this ground, that when there is an appeal about to be prosecuted the litigation is to be considered as not at an end, and that being so, if there is reasonable ground of appeal, and if not making the order to stay the execution of the decree or the distribution of the fund would make the appeal nugatory, that is to say would deprive the Appellant if successful, of the results of the appeal, then it is the duty of the court to interfere and suspend the right of the party who, so far as the litigation has gone, had established his rights.” The principle that an appeal is required to make such an order has been applied in a tall list of cases such as ORION PROPERTY TRUST LTD VRS DU CANE COURT LTD, GENERAL LONDON AND URBAN PROPERTIES LTD VRS DU CANE COURT LTD [1962]3 ALL ER 466 where PENNYQUICK J held that the trial court had jurisdiction to make such order suspending the issue of share because an appeal had been filed against that decision. See also ERINGFORD PROPERTIES LTD VRS CHERHIRE CC [1974]2 ALL ER 448.
There is therefore a strong weight of authority requiring an appeal against the particular judgment sought to be executed for an injunction or suspension order to be made. This I believe is important to prevent arbitrary and capricious exercise of discretion against a party who has emerged victorious in an action and is proceeding with execution. In this case, assuming there was any discretion on the part of the High Court judge to exercise at all which I think not, there was no appeal, final or interlocutory pending against the judgment that was being enforced in the garnishee proceedings.
Let me make this significant observation. The appeal in the fraud suit which the High Court appears to have so dependably relied on to suspend the execution of this Court’s judgment was as wobbly as anything. Not only because the issue of fraud on which it was premised had been variously pronounced upon by this Court as Buansi J rightly found, but also because it was not an appeal to pronounce on the substantive rights of the parties.
In the ruling of Buansi J, what the learned judge did was to strike out the Interested Party’s pleadings and dismiss the suit. Therefore, if that appeal was ever to succeed, the result, at best, would be a restoration of those pleadings that were struck out and a trial of the matter back in the High Court on the merits. It was not as though the Interested Part stood the chance to obtain a judgment from the Court of Appeal in that appeal which would operate to reverse the judgment that was under execution to found any ground that the result of the appeal would be rendered nugatory. From my standpoint, so empty was the ground for the nugatory argument that even if the High Court had any discretion at all to exercise to injunct the proceedings, it could scarcely constitute a justifiable reason for it.
From the above observation I am absolutely clear in my mind that there was no legal basis for the assumption of jurisdiction by the trial court, assuming for a moment that it had any form of discretion at all to exercise as an enforcing court.
I will agree that under the provisions in Order 25 rule 1 and Order 43 rule 11 the High Court is generally vested with the power to grant injunction as it deems appropriate. On my examination of the provisions however, I think they envisage a situation where the High Court is exercising or has exercised its power in a trial before it. They are not applicable in a situation where the court is proceeding under Rule 28 as an enforcing court by a certificate under Rule 28. I find the logic in the argument of applicant’s Counsel very sound to accept.
In the result I think the application must succeed on the first three grounds of the application. That is to say, the trial High Court had no jurisdiction, whatsoever to entertain and grant the application to suspend the execution of the judgment of this Court. For proceeding with the matter without any such jurisdiction, the ruling of the court delivered on 5 June 2024 is liable to be quashed in exercise of this Court’s supervisory jurisdiction. It is a well-established legal position that where there is proof that a High Court has committed an apparent error that amounts to a wrong assumption of jurisdiction which is so grave as to render the decision a nullity the Supreme Court intervenes to strike it down. See REPUBLIC VRS HIGH COURT, ACCRA EX PARTE SOKU [1996-97] SCGLR 525; TIMITIMI V AMABEBE (1953)14 WACA 374. In my well-considered view, the instant application sufficiently merits this Court’s intervention.
This conclusion should dispose of the application without discussing the remaining two grounds which Counsel so ably argued. For purposes of completeness however, I shall attend to them but more summarily.
Those grounds generally allege error of law on the face of record which error renders the decision of the High Court a nullity. This is on the basis that, binding decisions and precedents of this Court from this same case were placed before the High Court, and for the court to make a contrary decision in the impugned ruling amounts to a subversion of the constitutional hierarchy of the courts in Ghana.
I have adverted my mind to a number of authorities from this court that have decided that failure to follow binding authority by a lower court even if apparent on the face of the record is an error that is appealable and not liable to be dealt with in exercise of the Court’s supervisory jurisdiction. See REPUBLIC VRS HIGH COURT (FAST TRACK DIVISION), ACCRA, EX PARTE SIAN GOLDFIELDS LTD (AUREX MANAGEMENT & INVESTMENT AG/SA LTD INTERESTED PARTY) [2009] SCGLR 204 at 210; REPUBLIC VRS HIGH COURT ACCRA, EX PARTE COMMISSION ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE (ADDO INTERESTED PARTY) [2003-2004]1 SCGLR 312; REPUBLIC VRS HIGH COURT, ACCRA EX PARTE INDUSTRIALIZATION FUND FOR DEVELOPING COUNTRIES [2003-2004]1 SCGLR 348.
Whilst I take note of these authorities in their general application, it seems to me that by the peculiar circumstance of this case where, first, the High Court was proceeding on the basis of an express order to enforce this Court’s judgment in terms of Rule 28, second that there was no appeal pending in the garnishee proceedings and finally the multiplicity of the occasions when this Court had pronounced on the fraud allegation, those respected decisions are rendered less applicable. I hold that the High Court committed grievous errors that nullify the decision and therefore must suffer the wrath of the supervisory powers of this Court. The application succeeds on all the grounds. And I shall end with the following words of the Nigerian Supreme Court when it spoke through Eso JSC in the case of ISAAC MADUBUAGO VRS DR MUDIAGA ODJE & ORS [1985] 10 SC 268-269 as follows:
“In the hierarchy of the Courts in this country, as in all other free Common law Countries, one thing is clear, however learned a lower court considers itself to be, and however contemptuous of the higher Court that lower court is, the lower court is still bound by the decisions of the higher court. I hope it will never happen again whereby the Court of Appeal in this Country or say any lower court for that matter, would deliberately go against the decision of this court, and in this case, even to the extent of not considering the decisions when those of this court were brought the notice of that court. This is the discipline of the law. That is what makes the law certain and prevents it from being an ass.”
(SGD.)
R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
