The republic Vrs High court, commercial division accra (J5/3/2009) [2009] GHASC 25 (11 March 2009);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA - GHANA.
CORAM: WOOD(MRS), CJ (PRESIDING)
BROBBEY, JSC
DOTSE, JSC
ANIN YEBOAH, JSC
BAFFOE-BONNIE, JSC
CIVIL MOTION
NO. J5/3/2009
11TH MARCH, 2009
THE REPUBLIC
VERSUS
HIGH COURT, } RESPONDENT
COMMERCIAL DIVISION
ACCRA
EX PARTE: DOUBLE CROWN INVESTMENT LTD. } APPLICANT
GRANADA HOTEL LTD. } INTERESTED PARTY.
……………………………………………………………………………………………………………….
R U L I N G
ANIN YEBOAH, JSC:-
The applicant herein is by this application invoking the supervisory jurisdiction of this court to quash an order of the High Court, commercial Division, Accra, dated the 30/10/08. The facts leading to this application do not appear to be in controversy and could be deduced from the exhibits and the affidavits filed in this application. The applicant was a defendant in
suit № BDC 31/07:
GRANADA HOTEL LTD
VS.
DOUBLE CROWN INVESTMENT LTD.
The applicant , by a consent judgment dated the 30/07/2008 was adjudged to pay to the interested party (plaintiff) in the said case an amount of $1,950,000 together with interest and cost of GH¢250,000. In the judgment after trial to enforce the judgment, it appears that the judgment debt and costs were to be paid by installments with the usual default clause permitting the interested party herein (as the judgment /creditor) to proceed to levy execution upon default on the part of the applicant herein. The applicant defaulted and when the interested party commenced execution processes, the applicant on the 15/09/2008 filed an application to stay execution and payment for the judgment debt by installments. When the application was argued before His Lordship Mr. Justice Kwofie, he on the 26/10/2008 granted the application as prayed for, in the following terms;
“BY COURT: The motion on notice for stay of execution and payment by installment is granted as prayed. The outstanding judgment debt shall be paid in 2 installments as proposed in the affidavit in support subject to the usual default clause. The attachment of the property is therefore stayed forthwith.”
From the record before this court, Justice Kwofie who granted the application for stay of execution and payment by installments sat on the matter as a vacation judge. The interested party thought that there was an ambiguity in the order as regard the default clause which ought to be clarified. They filed a motion for review which was fixed for hearing on 17/10/2008. When the motion was listed, Mr. Justice Kwofie had proceeded on leave so it was placed before Mr. Justice Tanko Amadu. The learned judge had some misgivings about the propriety of the application and made this formal order:
“BY COURT: the court is unable to entertain the application by reason of the provisions of Order 42 Rule 4 of the Rules of Court. Counsel may withdraw the application and come by way of variation. The application for review is struck out as having been withdrawn .No order as to cost”
Taking a cue from the learned judge, the interested party filed an application for variation of the order make by Mr.Justice Kwofie on the 15/09/08. The application was placed before Tanko Amadu J. as according to the interested party Mr. Justice Kwofie was still on leave. The application was stoutly opposed by the applicants herein by an affidavit sworn to by one Vivien Lamptey. The learned judge Amadu Tanko J. granted the application to vary the order to pay the judgment debt by installments made by his learned brother Kwofie J on the 15/09/2008. The precise order made by the learned judge varying the order on the 30/10/2008 was not attached to the processes filed. The formal order drawn by the registry is however, annexed to the applicants’ affidavit as exhibit “VL5” which clearly varied the previous order made on the 15/09/2008.
The applicants who felt aggrieved by the variation order has moved this court to invoke its supervisory jurisdiction to quash this order of variation dated the 30/10/2008. On behalf of the applicants, learned counsel has argued that Justice Amadu had no jurisdiction to vary the order made by his learned brother Kwofie J, and that the order of variation was made without jurisdiction and therefore null and void.
It must be pointed out that at the time Justice Tanko dealt with the matter, his learned brother had proceeded on leave. The learned judge was therefore right in pointing out that he was incapacitated by virtue of Order 42 Rule 4 of the High Court [Civil Procedure] Rules 2004 C.I 47 from entertaining any application for review of the order made by Kwofie J. who was on leave for a period of less than three months. Having rightly declined to entertain the application for review, the question is; was the order of variation made without jurisdiction?
Learned counsel for the applicant has cited the cases of RE GM HOLDINGS LTD [1941] 3 ALLER 417 and the local case of GHANA NATIONAL TRADING CORPORATION VRS BAIDEN [1987-88] 2GLR 163 CA to demonstrate that there was lack of jurisdiction on the part of the judge to entertain the application for variation brought by the interested party. In examining the first case of RE GM HOLDINGS, supra, Justice Bennet had made an order staying execution and ordering the respondent in the case to pay a certain amount of money with interest to the applicant together with costs. An application for stay of execution pending an appeal was brought and the order was made to the effect that if security of the sum of £3000 is paid into court within one week there shall be a stay of execution of the judgment. The issue was whether the judge was functus officio on hearing the application for the security after the order for stay of execution had already been made and entered. This was what the learned judge said at page 418:
“I think that it would be a strange position if a judge were at liberty to reconsider his decision and grant a stay of execution after he had made an order refusing it. I think that, when a judge has made an order such as that in the present case, the only remedy for the respondent, if he is dissatisfied with the order is to go to the Court of Appeal, which in this case he did not do”
Even though the above proposition of the law is correct, this present case under consideration could be distinguished from the above case. In this case, there was no appeal lodged against the consent judgment entered by the High Court. The application for stay of execution and payment by installment was not filed pursuant to any pending appeal as it was in the above case. To me, I think the applicant who probably faced financial problems and could not settle judgment debt as agreed upon wanted time to settle the debt and filed the application.
In the application for the order which is under attack, the interested parties as judgment /creditors complained of the order being contradictory. In paragraph 18 of the affidavit in support of the application the deponent stated as follows:
“18: That in the circumstances, I pray for a variation of the court order sated the 26/9/2005 for clarity and avoid ambiguity that
- Payment of $975,000.00 on or before the 15/09/2008.
- Payment of $975.000.00 on or before 15/11/2008
- In default of any payment of the judgment debt and cost of plaintiff will be at liberty to take possession of the property , the subject matter m without resort to court”
It should be noted that the judge, Tanko Amadu J did not in my view vary the previous order of Kwofie J. The first two orders (i) and (ii) were affirmed and were substantially the same as the orders previously made. Indeed nothing turns on the difference. The third order sought was refused as Exhibit VL5 shows. The judge refused to permit the interested party to levy execution without resort to leave of the court. The prayer to retake possession of the property was also refused. The variation of the orders complained of by the applicant in this application which would have amounted to lack of jurisdiction does not arise. In my opinion, the interested party rather ought to have complained by resort to any known legal processes.
The case of GHANA NATIONAL TRADING CORPORATION supra which learned counsel hearing relied on does not advance his case in anyway. In that case an interlocutory judgment had been entered for the plaintiff in a case of wrongful dismissal. It was left for assessment of his entitlements but the defendant lodged an interlocutory appeal. After the filing of the appeal and application for stay of execution was filed, the trial judge however had proceeded to compute the entitlement subsequent to the judgment which had being appealed against. The Court of Appeal was of the opinion that the learned judge had no jurisdiction to proceed to make those findings that has arisen until the interlocutory appeal had been determined by the Court of Appeal.
This case under consideration involved no appeal from the High Court. There was as said earlier no application for stay of execution pursuant to any appeal filed.
In my opinion, if the applicant as judgment debtor could go to court, as it is done in such cases, to pray for more favourable terms upon default, by parity of reasoning, the judgment /creditor who is faced with an order which he claims to be ambiguous can resort to the court for clarification or variation,. I think the nature of the order made by the judge in such applications would determine whether he took a step to vary the order previously made by his predecessor or himself as a trial judge.
It follows therefore that the wrongful assumption of jurisdiction made against Justice Tanko Amadu has not been made out to warrant the intervention of this court by resort to its supervisory jurisdiction. The application fails and should be dismissed.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree
G. T. WOOD (MRS)
( CHIEF JUSTICE)
I agree
S. A. BROBBEY
( JUSTICE OF THE SUPREME COURT)
I agree
J. V. M. DOTSE
( JUSTICE OF THE SUPREME COURT)
I agree
P. BAFFOE-BONNIE
( JUSTICE OF THE SUPREME COURT)
COUNSEL:
CHARLES HAYIBOR FOR THE APPLICANT .
S. H. ANNANCY FOR THE INTERESTED PARTY
