The republic -vrs- The high court, cape coast (J5/5/2009) [2009] GHASC 27 (11 March 2009);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA - GHANA.
CORAM: ATUGUBA, J.S.C. (PRESIDING)
DATE-BAH, J.S.C.
ANSAH, J.S.C.
OWUSU, J.S.C.
ANIN YEBOAH, J.S.C.
CIVIL MOTION
NO. J5/5/2009
11TH MARCH, 2009
THE REPUBLIC
-VRS-
THE HIGH COURT, CAPE COAST … RESPONDENT
EX PARTE: GHANA COCOA BOARD … APPLICANT
NANA KWAKU APOTOI II … INTERESTED PARTY
R U L I N G
ATUGUBA, J.S.C:
The facts of this matter have been masterly related by my able brother Dr.
Date-Bah J.S.C. and I would repeat them only where necessary.
This application is “for an Order of Certiorari to quash the decisions of the High Court, Cape Coast, presided over by His Lordship V.G.K AYIMEY given on the 10th September, 2008 and 17th September, 2008 in the matter NANA KWAKU APOTOI III VRS. THE ATORNEY GENERAL AND GHANA COCOA BOARD, SUIT NO. L 48/2002”
The applicant further states that “the grounds for this application are as follows:-
- That the High Court Cape Coast had no jurisdiction to hear an application for and grant an order of garnishee against the Applicant when there was an order for Stay of Execution by the Court of Appeal in force at the time.
- That the orders of the High Court Cape Coast, directing the Manager of National Investment Bank, Head Office, to pay GH¢1,100,000.00 OUT OF Applicant’s account to the interested party was made without jurisdiction since there was a valid order for stay of execution from the Court of Appeal in force at the time.
- That the High Court, Cape Coast, had no jurisdiction to make an order awarding interest to the interested party, on the judgment debt against which there was a valid order for Stay of Execution from the Court of Appeal”
Two important issues fall to be addressed in order to determine this application. The first is whether at the time the impugned orders of V.G.K. Ayimey J. were made there was an order of Stay of Execution made by the Court of Appeal. The second is whether the stay of execution, if any, was superseded by a mutual agreement of the parties.
The Stay of Execution by the Court of Appeal
There was a stay of execution by the Court of Appeal of the trial court’s judgment. It is dated 20/1/2007 and is in these terms:
“BY COURT:- We have carefully given thought to the arguments of both counsel in this application and it is our considered decision that the application be granted subject to conditions. We therefore order that the applicant pay within twenty one days from today all that is outstanding of the Costs awarded in the trial Court. Consequent upon the said payment, the judgment and orders of the trial Court are hereby stayed pending the appeal herein. Further more we take cognizance of the fact that execution is already in process. We order therefore that execution should stop and all that has been done so far, including the attachment be reversed forthwith. Out of abundance, we urge the applicants/appellants to ensure that they fulfill all conditions of appeal and have it ready within the period of six months from now. (e.s)
The interested party contends that the applicant complied with the condition relating to the payment of the costs awarded but defaulted on the second condition as to the fulfillment of the conditions of appeal and the preparation of the record of appeal.
This contention is puzzling. The Court of Appeal itself described its statement as to that matter as being “Out of abundance.” Not only that, the word “urge” governs the concluding part of that statement.
It is quite clear that the concluding statement of the Court of Appeal with regard to the processes of the appeal was a moral plea in clementia to the applicant and did not constitute an additional order. It follows that the applicant fully complied wit the terms of the Court of Appeal’s said order of stay of execution.
The Terms of Settlement
However the applicant and the interested party subsequently executed terms of settlement so as to terminate the applicant’s appeal to the Court of Appeal. There is disagreement as to the exact time of the execution of these terms by the applicant but to my mind that is immaterial. The terms had in fact been agreed to by both parties. The said Terms of Settlement are as follows:
“ IN THE SUPERIOR COURT OF JUDICATURE
THE HIGH COURT OF JUSTICE
CAPE COAST
CENTRAL REGION
NANA KWAKU APOTOI III PLAINTIFF
VRS
- ATTORNEY GENERAL
- GHANA COCOA BOARD CO-DEFENDANTS
________________________________________________________
TERMS OF SETTLEMENT
________________________________________________________
PLEASE TAKE NOTICE that in the spirit of compromising the judgment delivered by the Cape Coast High Court per Justice Nana Gyamera Tawia dated the 24th day of August 2006, the parties do hereby resolve to settle the mater as follows:
- That rent arrears in the sum of ¢617,660,000.00 as assessed by the Land Valuation Board dated 18th January 2007 has been accepted as due and owing to the plaintiff.
- That discussion on the permanent transfer of the Plaintiff’s interest in the lands- the subject matter of the suit will be finalized upon the receipt of a valuation report from the Land Valuation Board, Cape Coast.
- That the Parties shall withdraw the matter pending before the Court of Appeal upon the payment of the rent arrears of ¢617,660,0000.00 by 2nd Defendant.
DATED THIS 3RD DAY OF AUGUST 2007 ) …………………….
SIGNED by the Plaintiff herein
Witnessed by: GUSTAV ADDINGTON ESQ. ) ………………….
LAWYER FOR PLAINTIFF
SIGNED by the CO-DEFENDANT (GHANA )
COCOA BOARD) )
Per its Chief Executive Officer ) …………………..
Witnessed by: J. D. CLOTTEY-SEFA ESQ ) ……………………
LAWYER FOR CO-DEFENDANT)
DATED IN CAPE COAST THIS 14TH DAY OF JUNE, 2007
THE REGISTRAR
HIGH COURT
CAPE COAST.”
In my view these terms of settlement would have settled this matter but for one reason.
In my view terms of settlement of an action are contractual and for that reason the courts, as I have said before in this court, hardly interfere with them when submitted for adoption as a consent judgment.
There is no doubt that the parties can thus compromise an action or even a judgment of a competent court and in that event would be held to their bargain in place of such action or judgment. See Horizon Technologies International Ltd. V. Lucky Wealth Consultants Ltd. (1992) 1A11 ER 469, P.C.
But if such terms of settlement are to be effective they must, in my opinion be certain enough so as to bind the parties, for that is their intent or purpose. Inherent in the word settlement is the notion of finality. In this case there is no doubt that the core intent of the parties in executing the said terms of settlement was to effect a sale of the disputed property by the interested party to the applicant. Yet the most crucial term of it runs thus:
“That discussion on the permanent transfer of the Plaintiff’s interest in the lands- the subject matter of the suit will be finalized upon the receipt of a valuation report from the Land Valuation Board, Cape Coast.”(e.s)
Thus the core provision of the settlement or contract is very vague and uncertain. It is trite law that for a contract to be enforceable it must be certain at least as to its essential terms. In modern times however the courts have taken the stand that, especially, as here, there has been part performance, the agreement should survive as a contract, see Koglex Ltd. v. Field (1999-2000) 2 GLR 437 S.C. But certainty of the contract is a logical and necessary requirement which has never been questioned, see Walford v. Miles (1992) IAI IER 453 H.L.
For these reasons I hold that the terms of settlement could not pass for a proper settlement. To accept such a settlement as closing the case would be futile since upon failure of the discussions the matter would again be set at large and litigation might be reignited.
It is for similar reasons that a court would not entertain an originating summons under the old High Court Civil Procedure Rules for the construction of a legal question if further litigation would ensue despite the said construction, see Badu-Anum v. Badu-Anum (1998-99) SC GLR 845.
Since there were no operative terms of settlement reached by the parties the judgment appealed from and the pending appeal itself had not been superseded by agreement of the parties and therefore the said stay of execution granted by the Court of Appeal was subsisting at the time the orders complained of were purportedly made.
It is true that on 17/9/2008 the parties reached a consensus at the garnishee proceedings as to what order the court should make. However it is clear that the parties did so in terrorem judicis and therefore acted in extremis, especially on the part of the interested party in the face of a looming ruling from the judge.
In any case since the judge had no jurisdiction to entertain the garnishee proceedings despite the pendency of the said stay of execution order by the Court of Appeal it follows that all the proceedings before Ayimey J. were a nullity.
For these reasons I would also grant the application.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
DR. DATE-BAH JSC:
The facts of this case are quite interesting, from a procedural point of view. The applicant seeks an order of certiorari from this court to quash certain decisions of the High Court, Cape Coast, presided over by Ayimeh J, given on 10th and 17th September, 2008 in a suit intituled Nana Kwaku Apotoi III v The Attorney-General and Ghana Cocoa Board (suit no. L 48/2002). The grounds of the application are:
- “That the High Court Cape Coast had no jurisdiction to hear an application for and grant an order of garnishee against the Applicant when there was an order for Stay of Execution by the Court of Appeal in force at the time.
- That the orders of the High Court Cape Coast, directing the Manager of National Investment Bank, Head Office, to pay Gh c1,100,000.00 out of the Applicant’s account to the interested party was made without jurisdiction since there was a valid order for stay of execution from the Court of Appeal in force at the time.
- That the High Court, Cape Coast, had no jurisdiction to make an order awarding interest to the interested party, on the judgment debt against which there was a valid order for Stay of Execution from the Court of Appeal.”
The facts which have led to this application are as follows: the High Court, Cape Coast, entered judgment in favour of the interested party on 24th August, 2006 in the suit (L48/2002) referred to supra ,in the sum of c24,164,482,000.00 as compensation for lands leased to the colonial government of the Gold Coast to establish a cocoa station. The applicant appealed against this judgment to the Court of Appeal. After filing its appeal, the applicant applied to the High Court for an order of stay of execution. When the High Court turned down this application, the applicant repeated it before the Court of Appeal, which granted it, subject to terms. Because of the different interpretations that have been placed on the Court of Appeal’s order, I will set it out. The court said:
“We have carefully given thought to the arguments of both counsel in this application and it is our considered decision that the application be granted subject to conditions. We therefore order that the applicant pay within twenty one days from today all that is outstanding of the costs awarded in the trial Court. Consequent upon the said payment, the judgment and orders of the trial Court arfe hereby stayed pending the appeal herein. Furthermore we take cognizance of the fact that execution is already in process. We order therefore that execution should stop and all that has been done so far, including the attachment be reversed forthwith. Out of abundance, we urge the applicants/appellants to ensure that they fulfil all conditions of appeal and have it ready within the period of six months from now.”
After this order, the applicant paid the outstanding costs awarded at the trial court, settled the records of the Appeal, executed the requisite bond and paid the deposit towards the preparation of the appeal records. The Registry of the High Court at Cape Coast confirmed these facts in its answers to a Search filed by the applicant. To the question in the search: “Has the Co-Defendant/Appellant done all that is required of it for the settlement of the Appeal records?” The Registry’s answer was: “Yes.” However, somewhat inconsistently, to the supplementary question: “If not, what is left for Co-Defendant/Appellant to do?”, the Registry’s answer was: “To assist in making photocopies of some documents.”
After the settlement of the appeal record, the parties entered into negotiations to arrive at a compromise on the judgment of the trial court. An affidavit deposed to on behalf of the applicant stated that terms of settlement were agreed upon and executed by both parties and filed at the High Court, Cape Coast. The terms of settlement document is dated 3rd August 2007. The terms agreed were as follows:
“1. That rent arrears in the sum of c617,660,000.00; as assessed by the Land Valuation Board dated 18th January 2007 has been accepted as due and owing to the Plaintiff.
- That discussion on the permanent transfer of the Plaintiff’s interest in the lands- the subject matter of the suit will be finalized upon the receipt of a valuation report from the Land Valuation Board, Cape Coast.
- That the Parties shall withdraw the matter pending before the Court of Appeal upon the payment of the rent arrears of c617,660,000.00 by 2nd Defendant.”
Counsel for the interested party swore to an affidavit in which he deposed to the fact that though both he and the interested party had executed their part of the Terms of Settlement in May 2007, expecting the applicant to do the same, the applicant had refused or neglected to execute its portion of the document until August 2007. His evidence was that the intended settlement had broken down as a result of the conduct of the co-defendant. The applicant’s version of what transpired was different. It was deposed to on its behalf that, before the Land Valuation Board could submit its report, the interested party had gone before the vacation judge at the High Court Cape Coast for a garnishee order to attach the bank account of the Applicant at the National Investment Bank, Accra. The interested party confirmed making the application, but asserted that it had no option but to apply to the trial court for leave to go into execution against the defendants, because of the applicant’s breach of the terms of settlement. This application was made ex parte and was granted at the Cape Coast High Court by Ayimeh J, who on 9th September 2008 made an order allowing the interested party to go into execution against the applicant. In making the order, he explained himself thus:
“The Court of Appeal stayed execution on conditions. One was for the payment of all costs, (2) that the defendant should get the appeal record ready within six months. This order was made by the Court of Appeal on 20th January 2007. To date the defendant though they have paid the costs, have not taken steps to ensure that they fulfil all conditions of appeal and have the record ready.
This means they have not done what the Court of Appeal ordered them to do for the stay of execution to be effected.
As it is now, there is no stay of execution, the defendant having failed to fulfil the conditions for the stay.
The applicants are accordingly allowed to go into execution.”
When this order came to the notice of the applicant, it applied to Ayimeh J. to set aside the garnishee order, but the learned judge dismissed the application on 17th September 2008.
It is these two decisions of his Lordship Ayimeh J. that the applicant has applied to this court to quash by an order of certiorari issued pursuant to its supervisory jurisdiction under Article 132. It is clear from these facts that at the time that Ayimeh J. gave his rulings the terms of settlement document had been executed, although it remains for this court to determine whether there was enough evidence to substantiate the interested party’s contention that that agreement had in effect been terminated because of the applicant’s dilatoriness. I do not find that on the balance of probabilities the affidavit evidence establishes this.
On these facts, the main legal issues arising are whether the order of stay of execution of the Court of Appeal was still in force at the time that Ayimeh J. made his two impugned decisions. If it was still in force, then did the High Court have jurisdiction to make the garnishee order? The second main issue is the legal effect, if any, of the terms of settlement on the jurisdiction of the High Court. Finally, counsel for the interested party raised the issue of whether a party who has filed an appeal over a particular issue can at the same time apply to this court for the exercise of its discretion to issue certiorari pursuant to its supervisory jurisdiction. He raised this issue because the applicant, in addition to applying to this court for certiorari, has filed an appeal to the Court of Appeal against the ruling of Ayimeh J. refusing to set aside the garnishee order.
I will deal first with the legal effect of the terms of settlement. This document is unfortunately infelicitously drafted and thus ambiguous. It does not make it clear whether it is meant to extinguish the liability imposed by the judgment of the High Court. It may however be reasonably inferred that because these were terms of settlement and what was sought to be compromised were the obligations flowing from that judgment, the document should be interpreted as substituting the obligations established in it for the obligations contained in the judgment of the High Court.
The next issue which arises is whether these terms of settlement had any legal effect on the stay of execution ordered by the Court of Appeal. I do not think so. The contents of the obligations arising from the judgment handed down by the trial court had been modified by the terms of settlement, but the fact that execution of those obligations should be suspended had not changed. One of those compromised obligations was, however, that the parties should “withdraw the matter pending before the Court of Appeal upon the payment of the rent arrears of c617,660,000.00 by 2nd Defendant.” This was an obligation of the parties to take action. It was not a self-fulfilling obligation. In other words, the parties needed to apply to the Court of Appeal to withdraw the case, after the payment of the sum indicated. For so long as they had not returned to the Court of Appeal to withdraw the case before that court, the Court’s order of stay of execution remained in force.
I come now to the reasons given by Ayimeh J and also urged upon this court by the interested party’s counsel as to why the Court of Appeal’s order of stay of execution was no longer in force at the time that Ayimeh J made his impugned decisions. It is argued that one of the conditions attached to the Court of Appeal’s order was that ‘the defendant should get the appeal record ready within six months”. The language on which this alleged condition is based is the following in the Court of Appeal’s order:
“Out of abundance, we urge the applicants/appellants to ensure that they fulfil all conditions of appeal and have it ready within the period of six months from now.”
The use of the word “urge” by the Court, to my mind, makes it clear that this alleged condition was merely an exhortation by the Court. In any case, it does not lie within the competence of a party to ensure that the appeal records are made ready within a specified period. Making an appeal record ready is the responsibility of the Registry and thus cannot lawfully be made the responsibility of a party. I do not consider that that is what the Court of Appeal sought to do, in any case. The evidence establishes that the applicant had paid the outstanding costs awarded at the trial court, settled the records of the Appeal, executed the requisite bond and paid the deposit towards the preparation of the appeal records. There was no further obligation that was due from him. The claim from the Registry that he owed them an obligation to assist them in photocopying some documents had no foundation in law. Accordingly, the applicant had fulfilled all the conditions attached to the stay of execution ordered by the Court of Appeal. The order was thus in force at the time that Ayimeh J. purported to make an order inconsistent with it. With respect, this was judicial impertinence by the learned judge. In my view, he had no jurisdiction to make the orders he made on 10th and 17th September 2008 and the same should be brought to this court to be quashed and are hereby quashed.
It is no answer to this want of jurisdiction to argue, as does the interested party’s counsel, that certiorari is a discretionary remedy and that because the applicant has filed an appeal against Ayimeh J.’s refusal to set aside the garnishee order, this court should dismiss the application. The right to appeal from the High Court to the Court of Appeal and the right to apply for the exercise of the supervisory jurisdiction of this Court are both constitutional rights and I see nothing in the constitutional governing provisions of these rights that makes them mutually exclusive. In particular, the supervisory jurisdiction is conferred as follows in article 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 directions for the purpose of enforcing or securing the enforcement of its supervisory power.”
The exercise of this jurisdiction is not expressly made subject to an applicant not having previously lodged an appeal in respect of the same matter. So long as the separate requirements of an appeal and of an application for the exercise of the supervisory jurisdiction of this court are complied with, a party should be able to avail himself or herself with either avenue of redress at the same time. If there are any previous cases decided by this court which have held otherwise, I think that this court should depart from them, pursuant to article 129(3) of the 1992 Constitution. Counsel for the interested party cited a case which he claims supports his position. This is Republic v High Court, Accra: Ex parte Aryeetey (Ankrah Interested Party). [2003-2004] SCGLR 398. Upon close scrutiny, this case does not assert that there is rule which prevents an appellant from at the same time applying for relief pursuant to the supervisory jurisdiction of this court. What the court there asserted is a practice which, in my humble view, is not necessarily conducive to justice. This is what Kpegah JSC, delivering the judgment of the Supreme Court in that case, said (at p. 410 of the Report):
“Needless for us to say that certiorari is a discretional (sic) remedy and the conduct of an applicant can disentitle him to the remedy. The circumstances in the instant case, and taking the conduct of the applicant into consideration, we feel obliged to deny him the remedy he seeks. The scales of justice are heavily weighted against him. Moreover, it is not our normal practice in this court to exercise our discretion in favour of an applicant if he has already lodged an appeal to a court against the impugned decision and the appeal is pending.”
I certainly consider that we should not follow this practice on the facts of this case. I would make bold and go on to assert further that it is not a desirable practice which should be encouraged. I accept that certiorari is a discretionary remedy and agree with Wuaku JSC’s view in Republic v High Court, Accra; Ex parte Pupulampu [1991] 2 GLR 472 at p. 477 that:
“Certiorari is never granted if the grant will serve no useful purpose or where no benefit can be derived from it. It is in the discretion of the court to grant or to refuse an order of certiorari, and it is not a matter of right: see R v. Newborough (1869) LR 4 QB 585 at 589.”
However, I do not consider that on the facts of this case no useful purpose would be served by granting the order. Furthermore, I do not think that the fact alone of the applicant having filed an appeal against the impugned ruling should be an automatic bar to the exercise of our discretion whether or not to grant certiorari. Indeed, Wuaku JSC himself in the Ex parte Pupulampu case conceded that a party could resort to both an appeal and an application for certiorari when he said (at p. 477 of the Report):
“In my opinion, what the applicant should have done if he had wanted to pursue the matter by praying for an order of certiorari, was to have applied for it at the time he lodged his appeal and then to have the certiorari application stayed until the appeal was heard and disposed of.”
Whilst I agree with him that a party may appeal and at the same time apply for the exercise of our supervisory jurisdiction, the facts of the Ex parte Pupulampu case were quite different from the facts of the present case. On the facts of the present case, there is no need to stay the application for certiorari. Indeed, justice requires that our supervisory jurisdiction is deployed immediately to prevent the unlawful exercise of jurisdiction by the High Court to the detriment of the applicant in this case. I would thus conclude that the fact that the applicant in this case has also appealed to the Court of Appeal in this matter is no bar to its seeking certiorari from this Court to quash the impugned decisions of Ayimeh J. Indeed, this view of the law is supported by an obiter dictum expressed by Bamford-Addo JSC in Republic v High Court, Accra; Ex parte Asakum Engineering and Construction Ltd. & Ors. [1993-94] 2 GLR 643, where she said (at p. 661):
“The remaining matter is that I agree with the applicants' statement that even if a right of appeal is available to the applicant, he can also apply for certiorari and that the two remedies are not mutually exclusive. But then to obtain an order of certiorari in such a case, there must exist grounds for certiorari; where there are no such grounds, appeal, if any, is the remedy and the case of Hoorey v Commissioner of Taxation (1905) 3 CLR at 236 supports this principle. It was held in that case that:
"That High Court of Australia will not always or generally refuse prohibition when an aggrieved party has failed to take advantage of an available right of appeal or that prohibition should be refused as an exceptional remedy. On the contrary, if a want or excess of jurisdiction is clearly shown, the fact that the party damnified by the jurisdictional error had another remedy such as an appeal available will in general be immaterial."
(The emphasis is mine.) I am in complete agreement with the principle of law stated in the above case. The applicant has not shown that the High Court acted without or in excess of jurisdiction, nor that there is an error apparent on the face of the record which makes the decision a nullity. The errors of law alleged against the judgment are appealable errors and do not constitute grounds for certiorari.”
Similarly, Francois J. (as he then was) came to the same conclusion at the High Court, Ho, in Republic v District Magistrate, Keta and Anor; Ex parte Hedo. [1971] 2 GLR 459, where he held, relying on Obeng v Ampofo, an unreported Court of Appeal judgment of 1958, that certiorari and appeal were not mutually exclusive. The learned judge there said (at p. 464 of the Report):
“Finally I must say that it is well established that the remedies of certiorari and appeal are not mutually exclusive one of the other, but can be both exercised by an aggrieved party. See Obeng v. Ampofo, Court of Appeal, cyclostyled judgments, January-June 1958 at p. 143.”
Acquah J, as he then was, reached a similar conclusion at the High Court, Ho, in Republic v Asogli Traditional Council and Ors; Ex parte Togbe Amorni VII [1992] 2 GLR 347.
On the basis of the analysis above, I believe that this Court should exercise its discretion to grant the order of certiorari applied for.
DR. S. K. DATE-BAH
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
R. C. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
COUNSEL
AKWASI OPOKU FOR THE APPLICANT
GUSTAV ADDINGTON FOR THE INTERESTED PARTY
