KOCH AND ANOTHER vs. HORTENG LTD AND ANOTHER [1997-1998] 2 GLR 738

CASES REFERRED TO

(1) George v Watmouth (1835) 4 LJU Ch 61.

(2) Hammond v Smith (1845) 15 LJU Ch 40.

(3) Paredes v Lizardi (1846) 9 Beav 490; (1846) 50 ER 433.

(4) Sturgeon v Hooker (1847) 1 De G & Sm 484; (1847) 623 ER 1158.

(5) Attorney-General v Birmingham, Tame & Rea District Drainage Board [1912] AC 788; 82 LJU Ch 45; 107 LT 353, HL.

(6) Shelfer v City of London Electric Lighting Co (1895) 2 Ch 388; 64 LJU Ch 736; 73 LT 42, CA.

(7) MacCarthy v Agard [1933] 2 KB 417; 102 LJ KB 753; 149 LT 595, CA.

(8) Takyi v Ghassonb (Ghana) Ltd [1987-88] 2 GLR 452, SC.

PRELIMINARY OBJECTION by respondents to the jurisdiction of Lthe Court of Appeal to hear an application filed by the applicants i[nviting the court to set aside certain interlocutory oOrders it had previously made. The facts are sufficiently set out in the judgment Dof Benin JA.

For applicants

J Ayikoi Otoo for the appellant.

T N Ward-Brew for the respondent.

Benin JA. On May 1995 this court allowed an appeal against the refusal of the High Court, Accra to grant an order of interim injunction. This court in effect granted an order of interim injunction “restraining the second defendant and all other directors from acting and receiving any emunerationremuneration as directors pending the final determination of this suit.” The Registrar-General was appointed as receiver and manager to take over the management of the company.

[p.740] of [1997-1998] 2 GLR 738

This order has been in force since then, simply because the suit between the parties is yet to be determined. By an application dated 19 March 1998 the defendant-applicants (hereinafter called the applicants) are calling upon the court to vacate or set aside the order of interim injunction and the appointment of receiver and manager made on 18 May 1995. Before the court could be moved, counsel for the plaintiff-respondents (hereinafter called the respondents) raised a preliminary legal objection to the application itself. The ground for the objection is that the order sought to be vacated was made following the hearing of an appeal. And that if the defendants were dissatisfied with the order, they should have appealed against it. He contended that this court has no original jurisdiction; its primary jurisdiction is appellate. The court therefore became functus officiofunctus officio upon deciding the matter on appeal. He referred to rules 21, 25 and 34 of the Court of Appeal Rules, 1997 (CI 19) under which the court is entitled to do certain things in respect of decisions given by it, but said none of these situations prevails in this application. Accordingly, he urged the court to dismiss the application as totally unmeritorious.

In his reply, counsel for the applicants treated us to what he conceives to be the various kinds of jurisdictions which this court is entitled to exercise. I do not consider it necessary to go into the details of that argument. Suffice it to say that he himself settled on two of the jurisdictions which he said are applicable here. He noted:

“It is the law that any court that gives interim orders can be called upon to vacate or vary the decision or orders as the circumstances and conditions which are interim also change. It is therefore part of the inherent jurisdiction of this court to supervise the operation or enforcement of its own orders which by their interim nature are only designed to assist the search for true justice for the parties involved. It is a notorious fact that any court which makes a decision or orders within the constraints of time has review jurisdic tion in the same vein and almost for the same reasons where too much time has elapsed as in the instant case and where review jurisdiction could not avail one, one could fall on the inherent jurisdiction to achieve true justice. In the instant case therefore, we have invoked both the interlocutory appellate jurisdiction of this honourable court which by its interlocutory

[p.741] of [1997-1998] 2 GLR 738 nature and time schedule has unfinished agenda about it until the substantive case which led to the interlocutory appeal has been disposed of or concluded at the court below.”

It is trite learning that an appeal is by way of rehearing. It is equally trite learning that an appellate court is vested with all the powers of the lower court in determining and making orders on appeal. Thus, in order to appreciate the nature of an order made by an appellate court, it is necessary to have regard to the relief that was sought in the court below. This is very important because the fact that a matter has been determined on appeal does not make it any more conclusive or final than if it had been decided by the court below if by the nature of the relief sought it was merely interlocutory. I think this objection was raised because counsel wrongly, in my view, believed that this court’s order of 18 May 1995, was a final order failure to appeal against which deprived the applicants of any rights under it. It was an interlocutory order notwithstanding that it was made following the hearing of an appeal. The court’s order was very clear in its terms and the relief sought in the court below which culminated in the appeal was also very certain.

The questions that arise are: does this court become functus officiofunctus officio, apart from review, in respect of interlocutory orders made by it upon hearing an appeal? If the court is not functus officiofunctus officio, is it entitled, as against the court below, to deal with applications relating to the interim order? In my view, so long as an order is interlocutory or interim, the court or judge who made the order does not become functus officiofunctus officio in relation thereto since the court or judge could still have something to do in respect thereof. For instance, infringement of the order will have to be reported to the court if it is a superior court to be dealt with. In the same vein if it becomes necessary, the same court or judge who made the interim order is entitled to revoke it. I shall refer to a few decided cases which illustrate the point that a court does not become functus officiofunctus officio in respect of interim orders made by it and that application to vacate such orders are to be made to the court or judge who made them. These cases are George v Watmouth (1835) 4 LJU Ch 61; Hammond v Smith (1845) 15 LJU Ch 40; (iii) Paredes v Lizardi (1846) 50 ER 433; and Sturgeon v Hooker (1847) 63 ER 1158.

Admittedly, these cases were not decided on appeal; yet the principle involved is the same. Be that as it may,. the English Court [p.742] of [1997-1998] 2 GLR 738 of Appeal has held that even where an interim injunction was granted by the court below, it could dissolve it depending on the circumstances; that was in Attorney-General v Birmingham, Tame & Rea District Drainage Board [1912] AC 788. I concede that in the case just cited the order was in the first place made by the court below, yet the Court of Appeal was able to order its dissolution because, having become seisedseized of the matter, all valid orders made by the court below had become its own and was in a position to make the dissolution order just as the court below would be able to do had the matter still been pending before it.

I think this point is buttressed by rule 31 (d) of CI 19 which entitles this court to make any interim order or grant any injunction which the court below is authorised to make or grant. If the court below is entitled to make an interim order and has power to vacate same upon application, this court has the same power when an interim order made by the court below has come to it on appeal.

I understand the lamentation of counsel for the applicants in that the court below had declined jurisdiction and so if this court too declines jurisdiction then where else must they go? Are they to go without remedy? Equity does not suffer a wrong to be without a remedy. And once there is a wrong there must be a forum to resolve it. So it is that the English courts have decided in Shelfer v City of London Electric Lighting Co [1895] 2 Ch 388 that where the Court of Appeal has granted an injunction, an application to suspend it may properly be made to the judge of first instance. So it would appear at first blush that the court below erred in declining jurisdiction in the sense that the order of this court was what should have been made by the court below when the application for the order of interim injunction was made to it and the matter is still pending before the court. Hence the case docket was returned to that court to continue the hearing and to supervise the order of interim injunction as made by this court.

It stands to reason therefore that infractions of the order could be reported to the court below in the first instance. But upon serious reflection, I think the court below was right in declining jurisdiction, since it is a distinguishable situation from the Shel ifer case. The facts in the Shelfer case (supra) were these. The High Court refused to grant an order of injunction and it was appealed against. The Court of Appeal vacated that order and instead granted the injunction but suspended its operation until a certain

[p.743] of [1997-1998] 2 GLR 738 date. The operation of the order was further suspended until a certain date upon the defendant undertaking to expedite the appeal which they had presented to the House of Lords. The defendants later abandoned the appeal but rather sought to procure a further suspension of the injunction for stated reasons. The application was first made to the High Court but the judge doubted whether it would be right for him to suspend the operation of an order made by the Court of Appeal and accordingly rejected the application. It was then made to the Court of Appeal which heard and granted it. Their lordships expressed the opinion that the application was nrightly made to the High Court judge and could have thus been disposed of by him.

Two things stand out from this decision: to begin with, that an application to suspend an interim injunction order made by the Court of Appeal in a matter which was still pending before a trial court could be made to the trial court to deal with; next, the Court of Appeal will not decline jurisdiction if such an application is made to it.

In the instant case, what the applicants seek is an order which in effect will vacate the entire order of the Court of Appeal which a lower court will not be entitled to do. In the Shelfer case (supra) the order sought was not to set aside the order of the Court of Appeal but merely a suspension thereof. I concede the distinction being drawn appears very narrow and unrealistic but it must be understood and appreciated that in one situation like the Shelfer case (supra), the court’s order is still valid but its effective date of operation is only put back a bit; in the other (like the instant case) the effect is to vacate the order altogether. In the latter instance it is only this court which has jurisdiction to vacate an interim order made by it against which no appeal was lodged or review sought, if proper legal grounds exist. In other words a court does not become functus officiofunctus officio in relation to an interim order made by it. In my view therefore this court has jurisdiction to entertain an application to vacate in whole or in part any order of interim injunction made by it even if it was made as a result of hearing an appeal. I accordingly overrule the preliminary objection.

Wood JA. I agree with the judgment delivered by Benin JA.

Essilfie-Bondzie JA. I regret that I do not agree with the decision of my sister and brother, Wood and Benin JJA.

[p.744] of [1997-1998] 2 GLR 738

This is a motion to vacate or set aside the order of interim injunction and appointment of receiver and manager made in a judgment of the Court of Appeal. The genesis of this motion is that the plaintiff-respondents (hereinafter referred to as the respondents) instituted an action at the High Court sometime in January 1994. On 14 February 1994 however, they applied to the High Court for an order of interim injunction to restrain the defendants and all other directors, privies, assigns, employees, workmen, servants and by whomsoever from interfering in anyway whatsoever or with all machines, equipment, vehicles brought to the company by the plaintiffs pending the final determination of the suit. After hearing heated arguments by counsel for both parties, the trial judge dismissed the application.

Dissatisfied with the ruling of the High Court, the respondents appealed to the Court of Appeal to set aside the ruling and instead grant the orders of interim injunction prayed for. The appeal was argued before the Court of Appeal and in a carefully considered judgment, the court made up of Essiem, Brobbey JJA and Acquah J (as he then was) unanimously allowed the appeal and set aside the ruling of the High Court. The court then appointed the Registrar-General as receiver and manager to take over the management of the company. The judgment of the Court of Appeal was delivered on 18 May 1995.

On 19 March 1998, about three years later, the defendant- applicants (hereinafter be referred to as the applicants) filed before the Court of Appeal the instant motion to vacate or set aside the order of interim injunction and appointment of receiver and manager. The applicants filed an affidavit of 42 paragraphs and a supplementary affidavit of another 29 paragraphs. The complaint of the applicants in these affidavit is to the effect that the Registrar-General, appointed as receiver and manager, is mis managing the affairs of the company. And that this is causing great hardship to the company and workers. The said allegation has been denied by the respondents in their affidavit in opposition

On 5 May 1998, when the motion was called for hearing, Mr Ayikoi Otoo, learned counsel for the respondents, raised a preliminary objection to the application before us. Counsel submitted that the order the applicants are asking the court to vacate or set aside was made as a result of an appeal to the Court of Appeal. If the applicants are dissatisfied with the order they are entitled to appeal to the Supreme Court. He contended that the [p.745] of [1997-1998] 2 GLR 738

Court of Appeal is an appellate court: see article 137 (1) of the Constitution, 1992 and sections 11-13 of the Courts Act, 1993 (Act 459). It does not have an original or supervisory jurisdiction. This court cannot therefore entertain the instant application.

It must be pointed out that the order being impeached was made as a result of an appeal to the Court of Appeal. The Court of Appeal’s judgment which made the order in question is dated 18 May 1995. If the applicants were aggrieved by the judgment their remedy was to appeal to the Supreme Court. They have failed to do so since 18 May 1995. Now it is a common law principle that a judgment of a court of competent jurisdiction, even it contains error of law or fact, is of full binding force until is reversed on appeal or by a review: see MacCarthy v Agard [1933] 2 KB 417. It follows therefore that to succeed in having an order of this court vacated, an applicant should appeal within the time stipulated for appeals to the Supreme Court or bring a motion for review under rule 34 of the Court of Appeal Rules, 1997 (CI 19).

In this case as already mentioned, the applicants have not appealed and they have not told us or indicated on the motion paper and the affidavits that the application is for a review of the decision of the Court of Appeal. Aside from that, there is the provision of rule 21 of CI 19 which provides:

“21. Control of proceedings during pendency of appeal After an appeal has been entered and until it has finally been disposed of, the Court shall be seisedseized of the whole of the proceedings as between the parties and every application shall be made to the Court and not to the court below, but any application may be filed in the court below for transmission to the Court.”

The above provision reveals that one can file a motion or make an application to the Court of Appeal only if there is an appeal pending before it. In this case, it is plain from the affidavits filed by the applicants that they have not filed any appeal to the Court of Appeal. In otherwordsother words, there is no appeal pending to enable the application to be clothed with validity. It is trite learning that the Court of Appeal has no original jurisdiction to entertain at first instance motions and affidavits. Now, since the instant motion has not come to the court consequeutconsequent upon an appeal and the Court of Appeal has no original or supervisory jurisdiction, it is my judgment that this court has no power to entertain the application

[p.746] of [1997-1998] 2 GLR 738 to set aside the order of the court dated 18 May 1995: see Talckyi v Ghassoub Ghana Ltd [1987-88] 2 GLR 452 at 453, SC.

It must be observed here that the court of Appeal is a creature of the constitumtion. Its powers are spelt out in the Constimtution 1992, the courts Act 1993 (Act 459) and the court of Appeal Rules, 1997 (CI 19) so that any party invoking the jurisdiction of the court must state clearly to the court what power or rule they are relying on. In other words, every application to the court must be justified by reference to the court or rule authorising it. It is not enough for litigants simply, as it were, to throw an application on the court and ask the court to speculate to find out if the application is warranted by any rule or law. When that happens the court must be told to refuse them a hearing. I uphold the objection and dismiss the motion.

Preliminary objection overruled.

SA