VANDERPUIJE v. AKWEI [1971] 1 GLR 242

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 3 FEBRUARY 1971

BEFORE: HAYFRON-BENJAMIN J.

CASES REFERRED TO

(1) Burnaby v. Earle (1874) L.R. 9 Q.B. 490.

(2) Republic v. Minister of the Interior; Ex parte Lynes, Court of Appeal, 22 July 1970, unreported.

(3) Re Chinery; Ex parte Chinery (1884) 12 Q.B.D. 342; 53 L.J.Ch. 662; 50 L.T. 342, C.A.

(4) Re Riddell; Ex parte Earl of Strathmore (1888) 20 Q.B.D. 512.

(5) Amoako Atta IV v. Nuamah [1963] 1 G.L.R. 432, S.C.

(6) Benson v. Benson [1941] P. 90.

(7) Vint v. Hudspith (1885) 29 Ch.D. 322; 54 L.J.Ch. 844; 52 L.T. 741, C.A.

(8) Joseph v. Jebeile [1963] 1 G.L.R. 387, S.C.

(9) Wilson v. Church (No. 2) (1879) 12 Ch.D. 454; 41 L.T. 296, C.A.

(10) Shekoni v. Ojoko (1954) 14 W.A.C.A. 504.

NATURE OF PROCEEDINGS

APPLICATION for an order that the proceedings in the case be continued notwithstanding an appeal from an interlocutory order to the Court of Appeal by the respondent.

COUNSEL

A. Quayson-Sackey for the applicant.

E. A. Mingle for the respondent.

JUDGMENT OF HAYFRON-BENJAMIN J.

This is an application against an order of this court that the proceedings in this case should be continued notwithstanding an appeal by the plaintiff to the Court of Appeal from a ruling of this court dismissing an application by him for judgment on alleged admissions by the defendant.

Rule 27 of the Supreme Court Rules, 1962 (L.I. 218), as amended by the Court of Appeal (Amendment) Rules, 1969 (L.I. 618), provides that an appeal against any judgment or decision shall operate as a stay of execution or of proceedings under the judgment or decision appealed from except so far as the court below or the court may otherwise order.

This legislative instrument came into force at a time when appeals against interlocutory judgments and orders were by special leave, and the High Court therefore had some control over appeals in such matters, and consequently some control over proceedings pending before them. With the coming into force of the Constitution, 1969, the position, it is suggested, has altered considerably. Article 110 (2) of the Constitution provides that, “Save as otherwise provided in this Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court of Justice to the Court of Appeal in any cause or matter determined by the High Court of Justice.” By article 172 of the Constitution a judgment includes an order or decree.

[p.245] of [1971] 1 GLR 242

The matters for initial consideration here are (a) whether the ruling appealed against was made in a cause or matter determined by this court or merely a ruling made in a cause or matter pending in this court for determination; (b) if it is a ruling made in a cause determined by this court, whether it is a judgment or decision so as to come within the provisions of the Court of Appeal (Amendment) Rules, 1969 (L.I. 618), or is merely an order, and (c) whether an interlocutory appeal operates as a stay of proceedings of the whole substantive case, or merely proceedings under the decision itself, e.g. where there is a grant of interim injunction and an appeal is lodged against that order, whether the whole trial comes to a halt or only proceedings and court processes under that decision granting the interim injunction. Order 1, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), defines “cause” as including any action, suit or other original proceedings between plaintiff and defendant and “matter” as including every proceeding in court not in a cause. It is settled that the word “matter” is used there to denote proceedings under the prerogative writs, grants of probate and letters of administration as such other proceedings as are usually entitled “In the matter of, etc.” A step in proceedings, or an interlocutory application is not itself a cause or matter. The cause before us is the suit or action or original proceedings brought by the plaintiff against the defendant, and any judgment, decree, or order made therein is appealable as of right only when that cause or matter has been determined. When in a cause or matter, no final judgment has been given, that cause is still pending before the court in which that action was brought and has not been determined. It is quite clear that the court can make orders, some consequential and some not, even after final judgment usually directing how the declarations made in the final judgment are to be worked out. For example, an order for the taxation of costs, an order for the payment of permanent alimony after decree for dissolution of marriage, a variation of an order for the custody of children after decree absolute and several orders too numerous to mention.

A right of appeal is a creature of statute, and the conditions prescribed by the statute conferring it must be strictly observed. I am therefore of the view that an appeal from any order made in the course of any proceedings before the High Court can only be appealable as of right when that cause or matter has been determined. In Burnaby v. Earle (1874) L.R. 9 Q.B. 490, the term determination of an action came up for consideration and Lush J. said at page 493, “But where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour . . .” Where there has been no such determination, the would-be appellant must fall back on the provisions of the Courts Decree, 1966 (N.L.C.D. 84).

I am fortified in my view by the ruling of the Court of Appeal in Republic v. Minister of the Interior; Ex parte Lynes, Court of Appeal, 22 July 1970, unreported. In that case the Republic had brought an appeal [ph246] against an interlocutory order of the High Court without obtaining special leave. Counsel for the respondent took a preliminary objection to the jurisdiction of the Court of Appeal to entertain the said appeal. The learned Director of Public Prosecutions honourably conceded the point, rightly in my view, and the appeal was dismissed. This took place after the Constitution had come into force. Unfortunately it was not necessary for the Court of Appeal to consider the effect of the Constitution (Consequential and Transitional Provisions) Decree, 1969 (N.L.C.D. 406), which substitutes paragraph 7 of N.L.C.D. 84. The only provision dealing with appeals from the High Court in the exercise of its civil jurisdiction is article 110 of the Constitution, and it seems therefore that the right of appeal from interlocutory decisions is exercisable only when the cause or matter has been determined. This constitutes a definite break with tradition, which has always allowed appeals in interlocutory matters while the substantive case is still pending for determination in the High Court. The words of the Constitution, however, are too clear to me to justify any other construction.

In this case, the plaintiff applied for and was refused special leave, by me, to appeal against the order refusing to enter judgment in his favour on the alleged admissions by the defendant. There is nothing before me to suggest that he has applied for special leave of the Court of Appeal. When, however, the application for special leave was before me, counsel for the plaintiff raised the point that he had brought the application out of an abundance of caution as he was not sure whether special leave was required or not. I did not rule on the point then, but treated the application brought on its merits and dismissed it. I said there that I was not concerned with the question whether with the coming into force of the Constitution appeals against an interlocutory order lay as of right, and that that matter should be canvassed in the proper forum and at the proper time. What I have said, therefore, represents my own views on a question that has been raised several times before me in other applications. The question for determination, however, is whether a ruling refusing an application to enter judgment on admissions, on the ground that the trial judge is not satisfied that the so-called admissions are unequivocal enough to warrant an order shutting out the defendant from defending the action is a judgment or decision within the meaning and intendment of the Court of Appeal (Amendment) Rules, 1969. The Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), contain several provisions designed to assist the court in the expeditious despatch of business. The outstanding ones are those under Order 14, r. 1, for summary judgment, Order 14, r. 4, for judgment on admissions and Order 25, r. 4, empowering the judge to dismiss frivolous and vexatious actions. These are all procedural shortcuts and no party has a vested right in procedure. Where an application for judgment is refused, obviously there is no judgment. There is certainly no judgment for the applicant for the simple reason that his application has been refused. There is no judgment for the respondent, because he still has to fight the case. Where, however, the [p.247] of [1971] 1 GLR 242 application for judgment is granted, there is a judgment operating against the defendant and in favour of the plaintiff. A judgment as I understand the term, must ascertain or establish a previously existing liability of a defendant to a plaintiff (see Re Chinery; Ex parte Chinery (1884) 12 Q.B.D. 342); or it must determine in favour either of a plaintiff or of a defendant the question whether there was a pre-existing right of a plaintiff against defendant. (See Re Riddell; Ex parte Earl of Strathmore (1888) 20 Q.B.D. 512 and also Amoako Atta IV v. Nuamah [1963] 1 G.L.R. 432, S.C.) I am satisfied on these authorities that the ruling refusing the plaintiff ‘s application for judgment on the alleged admissions of the defendant is not itself a judgment. To say that a ruling refusing to enter judgment for the plaintiff and not entering judgment for the defendant is itself a judgment is not a proposition to which this court would readily accede.

However, though such a ruling is not a judgment, it is necessary to consider whether it is a decision within the meaning and intendment of the Court of Appeal (Amendment) Rules, 1969. It is quite clear from the provisions of that legislative instrument that it applies equally to final and interlocutory decisions. Lawyers do not usually speak of a “stay of proceedings” where there has been a final determination of a cause or matter; they speak of a stay of execution. The Court of Appeal (Amendment) Rules, 1969, therefore may imply that where there is no appeal against an interlocutory decision further proceedings are stayed unless the court otherwise directs. But it must be an interlocutory decision and not merely an interlocutory order. A ruling on an application for an adjournment refusing that adjournment and ordering the case to proceed is an interlocutory order and may, subject to any rules governing the same, be appealable, but it is certainly not a decision. A ruling on an application for an order of interim injunction granting such an order affects the rights of the parties pending the determination of the case. It is an interlocutory decision, and an appeal from such a ruling would operate as a stay of execution of that order. An order on an application under L.I. 618 itself for the case to continue despite an appeal would be an interlocutory order and if it is in turn appealed against would not stay the proceedings. An interlocutory decision, as I understand the term, would in any event affect the claims of the parties as they were before the commencement of the suit, however, temporarily. An order of interim injunction for example, would temporarily halt the activities of a defendant pending the hearing of the suit; activities which he might have been carrying on before the writ was issued. So would an order appointing a receiver and manager, so would an order for the interim preservation of property. An order to provide security for costs would also affect the position of the party against whom it is made. So also would an order for discovery and inspection of document, for without such an order the party in whose favour it is made has no means or right to examine the documents in the possession of his adversary. It is quite true the terms judgments, orders, decisions, directions, are sometimes used interchangeably. For example in Benson v. Benson [1941] P. 90, it was stated that in certain contexts “order” and [p.248] of [1971] 1 GLR 242

“direction” are interchangeable terms. An interlocutory order is normally an order in procedure, an order in aid of the court’s process and for the proper conduct of the proceedings. An interlocutory decision always affects, either for protection, or as an aid to, the rights of the parties pending the final determination of the suit. In Amoako Atta IV v. Nuamah (supra) at p. 437, Akufo-Addo J.S.C. (as he then was), went as far as to say that “An order dismissing a plaintiff’s action for want of prosecution does not answer to the attributes of a judgment or a decision, . . .” See also Vint v. Hudspith (1885) 29 Ch.D. 322,

C.A.

In my view the operation of L.I. 618 is limited to judgments and decisions, whether expressed as decrees, orders or rulings which affect or impugn the rights of the parties, however temporarily. This can be seen from a careful study of the case of Joseph v. Jebeile [1963] 1 G.L.R. 387, S.C. It is significant that that judgment was written by Akufo-Addo J.S.C.(as he then was), and that the point was raised by Mr. N. Y. B. Adade, counsel for the applicant. These two gentlemen subsequently became and were the Chief Justice and the Attorney-General at the time when the rules committee promulgated L.I. 618, and both signed the said legislative instrument. This case was one of the leading cases on the question of the stay of execution of judgments in this country before the enactment of L.I. 618. Akufo-Addo J.S.C. (as he then was) giving the unanimous ruling of the court said at p. 390:

“While we do not wish to say anything that may be interpreted as a fetter on the exercise of the discretion of a trial judge when he considers an application for stay of execution pending appeal we think it necessary in the interest of justice to say generally that when such an application is considered in a case involving, inter alia, the payment of money, the main consideration should be not so much that the victorious party is being deprived of the fruits of his victory, as what the position of a defeated party would be who had had to pay up or surrender some legal right only to find himself successful on appeal. In this respect it is wholly immaterial what view a trial judge takes of the correctness of his own judgment or of the would-be appellant’s chances on appeal, if the position (it is not of course suggested that that is the position in the case before us) is that the victorious party is unlikely to be able to refund the amount paid to him, or the defeated party to be restored to the status quo ante, in the event of a successful appeal,…. then it would be palpably unjust to refuse stay of execution, . ..”

I am inclined to believe that L.I. 618 incorporates the views expressed by his lordship. The successful party is not to go into execution unless the trial judge has had an opportunity to assess whether the victorious party can refund what he had obtained by virtue of the judgment, or the defeated party to gain what he lost by virtue of the judgment. The Court of Appeal is to exercise a concurrent jurisdiction in the matter.

I shall now apply these principles to the ruling refusing to enter judgment on the alleged admissions by the defendant. It is difficult to

[p.249] of [1971] 1 GLR 242 discern who is the victorious party and who the defeated party. No party gained anything; their rights and liabilities are just as they were before the action commenced (of course, I leave out the question of the receiver and manager who was appointed some time ago). If, however, for purposes of argument, I take the plaintiff to be the defeated party and the defendant the victorious party, it is clear to me that the victorious party has gained no fruits of victory which he may be called upon to disgorge in the event of a successful appeal. Equally, I do not find that the defeated party has paid up or surrendered any legal right. His position has not changed from what it was at the commencement of his writ and there can be no question of his return to a status quo ante position because he is still there. He nourishes a hope of winning his appeal and thereby improving on the status quo, but hope is a very shifting foundation on which to build procedural rules. I am of the view that a ruling refusing to enter judgment on the alleged admissions of the defendant is not a decision within the meaning and intendment of L.I. 618 and I accordingly hold that the application for an order to continue the case is wholly unnecessary, and I would have struck it out but for what I have to say further. The third question which I had posed earlier is whether an interlocutory appeal operates under L.I. 618 to stay the whole proceedings or those proceedings under the order appealed against only. The wording of L.I. 618 makes it clear that it operates only to stay proceedings that may be taken under the order itself. In this case, the order refusing to enter judgment being only procedural, there is nothing to be done under it. I hold that despite the appeal the case itself can proceed.

If I am wrong in all that I have said, and the proper view is that L.I. 618 covers all interlocutory orders, especially the one which is the subject-matter in this application, then I would go on to consider the application on that basis and on its merits. The basis of the defendant’s application is one of hardship. He states in paragraphs (6) and (7) of his affidavit in support of his application:

“(6) That this appeal is another clever device of the plaintiff to delay unduly the proper adjudication and final determination of the substantive suit before this honourable court.

(7) That I am suffering a lot of hardship in consequence of an order made by the honourable court on 31st

March 1969, enjoining me to pay rents into court.”

The plaintiff in his affidavit denies that there is any hardship and resists the application on the basis that a continuation of the suit would render this appeal nugatory and useless. He states in his affidavit in opposition:

“(9) That there cannot be any hardship on the defendant having regard to his conduct and dealing in this case more so when he solemnly swears that he is even prepared to demolish these buildings on his own volition.

(10) That though this court has a discretion in this application that discretion is always exercised judiciously and judicially and that the justice of this case demands that it shall not be exercised in such a way as to render my appeal nugatory.

[p.250] of [1971] 1 GLR 242

(11) That my appeal goes to the very root of the case.

(12) That an order to determine this case by this court while my appeal is pending in the Court of Appeal will not only undermine my appeal but will completely render it useless.”

The defendant swore to an affidavit in February 1967 that he was prepared to demolish the house in the event of the court holding that he had trespassed on plaintiff’s land. This is the affidavit relied on by the plaintiff to contend that the defendant can suffer no hardship. I do not appreciate this contention. The contention of the defendant is that he is suffering hardship because of the delay in hearing this suit. I do not think that it can be said that because a defendant is ready and willing to abide by any lawful decision of the court, he does not suffer any hardship if the trial is unreasonably delayed.

The plaintiff, by his counsel, relies heavily on Joseph v. Jebeile [1963] 1 G.L.R. 387, S.C. in support of his contention that if this case is heard to a conclusion his appeal will prove nugatory and useless. Akufo-Addo J.S.C. (as he then was) said in that case at p. 389: “It is the paramount duty of a court to which an application for stay of execution pending appeal is made to see that the appeal, if successful, is not nugatory: see Wilson v. Church (No. 2) (1879) 12 Ch.D. 454 at pp. 458-459, C.A.” Both Wilson v. Church and Joseph v. Jebeile (supra) cases were appeals against final judgments where the appellant had lost some claim or right in the court below, which he tried to regain in the appellate court. In such circumstances, clearly the court below should be careful not to do anything which would render it impossible for him, after a decree of the appellate court that he is entitled to that right, to recoup or regain his rights.

In the case of Shekoni v. Ojoko (1954) 14 W.A.C.A. 504, Foster-Sutton P. said:

“In our opinion there is substance in the point raised by counsel for the appellants. In view of the fact that there was an appeal pending in a suit involving ownership of the land which is the subject of the present suit the proper course for the learned trial judge to have adopted would have been to adjourn the case pending determination of the appeal, with liberty to either side to apply for the hearing to be continued. To do otherwise would work an injustice to the appellants in the event of their appeal in Ekiti Divisional Native

Court Suit No. 2 of 1949 being successful, as they could not then renew their claim in the present suit.” Acting on this principle I have adjourned sine die several cases where one party claims to derive title from the Sempe stool and the other party from the James Town stool, on the mere assertion at the Bar by counsel of the James Town stool that they intend to appeal to the Supreme Court, when that court is set up. I am of the view that in those cases that is the proper course to adopt. As Foster-Sutton P. emphasised in the Shekoni case, the appellants in one case could not renew their claim in another case, if that case was heard to a conclusion. Likewise in the James Town and Sempe [p.251] of [1971] 1 GLR 242 cases, if this court decides to hear them, the Sempe grantees would just have to put in the Court of Appeal judgment declaring the Sempe stool as owners, and this court would be compelled to give judgment in their favour. In the event of the main appeal succeeding and the James Town stool is declared owners, the James Town grantees do not automatically become entitled to judgment. Even if they also had appealed, their appeal will be dealt with on the basis of the record of proceedings from the court below unless the Court of Appeal grants leave to adduce fresh evidence. Those who do not appeal would have lost their title to their plots. A continuation of hearing in these cases would likely adversely affect the rights of some party.

Where, as in this case, there is an appeal against an interlocutory order made in the proceedings, I am of the view that where the same relief sought in the appellate court could be obtained in the trial court on the conclusion of the substantive case, the trial court ought to be slow in staying or allowing the stay of proceedings. In this case the relief sought by the plaintiff in the appellate court is a judgment declaring him the owner of the land which is the subject-matter of this dispute. If he established his case before this court, he is entitled to have a judgment declaring him the owner of the land which is the subject-matter of this dispute. If he establishes his case before this court, he is entitled to have a judgment declaring him owner. I do not think the pendency of his appeal alone should induce this court not to continue with the case. I therefore grant the application, and order the case to proceed to trial. I fix 8 February 1971 as the date of the hearing. There will be no order as to costs.

DECISION

Application granted.

T.G.K.