Standard Chartered Bank Vrs Western Hardwood Ltd And Another ( J8/50/2009) [2008] GHASC 11 (20 May 2008);

IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT

ACCRA, GHANA.

CORAM: ATUGUBA , J.S.C (PRESIDING)

ANSAH, J.S.C

ADINYIRA(MRS), J.S.C

OWUSU(MS), J.S.C

B. BONNIE, J.S.C

CIVIL MOTION

NO. J8/50/2009

20th MAY, 2009

STANDARD CHARTERED

BANK GHANA LTD. … PLAINTIFF/APPELLANT/ APPLICANT

VERSUS:

WESTERN HARDWOOD LTD
FARROUK BARRAKEH ... DEFENDANTS/RESPONDENTS/

RESPONDENTS

______________________________________________________________

R U L I N G

ATUGUBA JSC:-

The applicant moves "this honourable court to suspend the order of the Court of Appeal: Their Lordships Quaye, Addo and Acquaye JJA dated 30 March 2009 and to stay execution of the judgment of the High Court, Sekondi, Coram: His Lordship, Honyenuga dated 30 May 2008 upon the grounds contained in the accompanying affidavit and for any further order(s) as this honourable court may deem meet." (The emphasis is ours).

The facts grounding this application are stated in the following relevant paragraphs of the supporting affidavit:

"(3) On 30 May 2008, the High Court, Sekondi, presided over by his Lordship, Honyenuga J, delivered judgment in the suit between the plaintiff bank and the defendants.

(4) In the said judgment, his lordship ruled in favour of the defendants-respondents-respondents on their counterclaim and also awarded general damages of Gh¢300,000 together with costs of Gh¢6,000 against the plaintiff-appellant-applicant.

(5) Dissatisfied with the judgment, the plaintiff-appellant-applicant caused an appeal to be filed on its behalf challenging the judgment of the honourable court.

(6) On 14 July 2008, the plaintiff-appellant-applicant filed a motion to stay execution of the judgment of the High Court, Sekondi pending appeal.

(8) On 19 February 2009, the High Court, Sekondi presided over by His Lordship, Agbevor J dismissed the plaintiff-appellant's application to stay execution of the judgment of the court.

(9) On a repeat application to the Court of Appeal, Coram: Their Lordships Quaye, Addo and Acquaye JJA, the honourable court, on 30 March 2009 ordered the plaintiff-appellant-applicant to pay half of the judgment debt in the sum of Gh¢150,000 to the defendants-respondents-respondents pending the determination of the appeal. Annexed and marked as exhibit M is the ruling of the Court of Appeal. It is the contention of the plaintiff-appellant-applicant that exhibit M amounts to a refusal of the application for stay of execution.

(10) The plaintiff-appellant-applicant is dissatisfied with the ruling of the Court of Appeal because in its opinion, the defendants-respondents-respondents are currently impecunious and do not have the capability to pay back the money to the plaintiff- appellant-applicant should its appeal be successful and has accordingly filed an appeal against the said ruling in this honourable court.

(11) It is the prayer of the plaintiff-appellant-applicant that the ruling of the Court of Appeal be reversed and an order granted to stay execution of the judgment of the High Court, pending appeal since the appeal has good prospects of success.

(12) Your Lordships' reversal of the ruling of the Court of Appeal delivered on 30 March 2009 would obviate any hardship which might be visited upon the plaintiff- appellant-applicant in its efforts to recover the amount of Gh¢150,000 which it was ordered to pay by the Court of Appeal, taking into consideration the fact that the defendants-respondents-respondents do not have liquid cash." (The emphasis is ours).

It is also pertinent to set out in full the ruling of the Court of Appeal (as per exhibit M) as follows:

"Court: We have carefully considered the issues before us in this application. Since the appeal is pending, it is our duty to hold the balance evenly between the parties, taking into account, inter alia, the issues of hardship, the entitlement of the victorious party in the trial court and the taking of steps not to make the appeal, if successful, nugatory. We accordingly order that the application be granted subject to terms, and execution of the judgment of the trial court stayed subject to the applicant judgment debtor paying to the defendants judgment creditors the sum equal to fifty per cent of the judgment debt and also the whole of the costs awarded in the trial court within thirty days from the date of this order, failing which this order would lapse."

(The emphasis is ours).

From the foregoing, it is clear that the applicant bank is seeking the following reliefs from this court:

(a) the suspension of the order of stay of execution granted on terms by the Court of Appeal;

(b) reversal of that order; and

The powers of this court with regard to stay of execution pending appeal are provided in rule 20 of the Supreme Court Rules, 1996 (CI 16), as follows:

"20. Effect of appeal

(1) A civil appeal shall not operate as a stay of execution or of proceedings under the judgment or decision appealed against except in so far as the Court or the Court below may otherwise order.

(2) Subject to these Rules, and to any other enactment governing appeals, an application for stay of execution or of proceedings shall first be made to the Court below and if that court refuses to grant the application, the applicant may repeat the application before the Court for determination. (The emphasis is ours).

With regard to the suspension of the order of stay of execution granted on terms by the Court of Appeal, this court has recently shown in the case of Anang Sowah v Adams, MJ8/2/2009, given on 14 January 2009 (to be reported in [2009] SCGLR 111) that contrary to the earlier decision of this court in Takyi v Ghassoub (Ghana) Ltd [1987-88] 2 GLR 452, this court can, in an appropriate case, grant a "stay of proceedings under the judgment or decision appealed against," under rule 20(1) of the Supreme Court Rules, 1996 (CI 16), and not only in respect of execution process. The scope of our jurisdiction in that regard was therein set out. In this regard we would, in this modern era of functional or purposive justice liberally interpret the word "proceedings" in rule 20(1) as referring to any steps that are required or are necessitated, and not merely occasioned, by the judgment appealed from.

In the instant case, the grant by the Court of Appeal of the stay of execution on terms is not executable, in the sense that the defendants cannot be compelled by any process to comply with the said terms. The said terms were solely for the personal benefit of the defendants and, save in very exceptional circumstances, a person can waive even a statute which confers a benefit on him: see Dhalomal v Puplampu [1984-86] 1 GLR 341, CA and Republic v High Court, Accra; Ex parte Asakum Engineering & Construction Ltd [1993-94] 2 GLR 643, SC. In this case, as the Court of Appeal indicated in its order of stay of execution, in the event of its non-compliance, it merely lapses: see Ababio v Mensah [1989-90] 1 GLR 560, SC. However, since when the defendants decide to take advantage of the terms of the said conditional stay of execution, they would have been proceeding directly in compliance with the said order of the court, that step can be the subject-matter of an application for "stay of proceedings under the judgment or decision appealed against." "Judgment" in this context should include any order made by the court below, to which the appeal relates.

But even there the applicant bank has failed to make a prior application to the Court of Appeal after appealing from that order to this court as required by rule 20(2) of CI 16. However, the applicant bank is of the view that, that step is pointless since the Court of Appeal would be unlikely to change its mind. This is not only speculative but a plea to us to ignore the plain requirements of the provision in rule 20(2). It is plain that we cannot so do. It would also mean that the invocation of the review jurisdiction of the High Court which, save in limited circumstances, has to be made to the judge who decided the case, has also to be judicially ignored. In any case, jurisdiction attaches to a court and not to a particular bench or judges: see Asare v The Republic [1968] GLR 37, CA (full bench) and Aidoo v Commissioner of Police (No 2) [1964] GLR 344, SC. Therefore, the application under rule 20(2) may not necessarily go before the same bench that dealt with it at first. This court is, however, a court of law and not a court of arbitrariness.

As regards relief (b) in the instant interlocutory application, namely, the reversal of the said order of the Court of Appeal, it is clearly not possible. And as to relief (c) above, ie an order to stay execution of the trial court's judgment, it is plainly outside this court's jurisdiction under rule 20(1) as explained by this court in Anang Sowah v Adams (supra). But the applicant relies heavily on the case of NDK Financial Services Ltd v Yiadom Construction & Electrical Works [2007-2008] 1 SCGLR 93. The Editorial Note to that decision (as stated at page 95 of the Report) is the first indication that, that decision cannot endure for long. That reliance is per incuriam of this court's unanimous decision in Republic v Duffour; Ex parte Asare [2007-2008] 1 SCGLR 394 where under the heading: "Contempt jurisdiction in respect of order confirmed on appeal" the court said at page 401:

"The other reliefs, though enforceable, were not orders of this court but orders of the trial High Court which were merely confirmed by this court on appeal from the judgment of the Court of Appeal. It has sometimes been held in this court that such confirmed orders are enforceable by the confirming court. We think that, with the greatest respect, the better view is that such confirmed orders remain the orders of the court that made them and are to be enforced by the same court: see Mosi v Bagyina [1963] 1 GLR 337, SC. Indeed, the nature of an appeal lends support to this view. An appeal is a plea to a higher court to correct the decision of a lower court which is contended to be wrong: see A/S Norway Cement Export Ltd v Addison [1974] 2 GLR 177, CA (full bench). If therefore the appellate court does not interfere with the decision below, one would have thought that the decision in question remains wholly that of the lower court. This is fortified by the principle that if a lower court's judgment is confirmed on appeal, the judgment of the lower court is effective as from the date it was given by such lower court: see In re Debtor [1953] 1 WLR 1050. There is further fortification for this view in the several decisions of this court that where an appellate court dismisses an appeal without making any executable orders by itself, there cannot be an application for stay of execution pending an appeal from such a judgment: see Mensah v Ghana Football Association [2001-2002] SCGLR 318.

There are isolated decisions and dicta of this court tending to the contrary, but with the greatest respect, there is a heavy body of authorities in support of the view that orders which have been merely confirmed on appeal cannot be the subject of an application for stay of execution pending an appeal from such judgments." (The emphasis is ours).

From early times, the highest courts in Ghana have held that the judgment of a lower court which has been affirmed on appeal remains the judgment of such lower court and not of the appellate court. See further Ware v Soboah [1960] GLR 212, SC in which it is stated in the headnote thus:

"Held - the trial court in the circumstances was not competent to make a finding of joint ownership of the land, and that finding would, therefore, be deleted from the native court judgment. Save as so varied, the judgment of the Land Court stood." (The emphasis is ours).

See also Sirebour v Dome [1962] 1 GLR 82 at 86.

Again in Kwashi v Boahene Adjei, CMJ8/39/2008, unreported, dated 28 October 2008, this court (Coram: Atuguba, Brobbey, Dr Date-Bah, Sophia Adinyira and Baffoe-Bonnie JJSC) unanimously dismissed an application for stay of execution in these words:

"No appearance for or on behalf of the applicant. Application is dismissed for want of jurisdiction since the application could not relate to any legal proceedings that can be stayed at the Court of Appeal. Costs of GH¢2,000 for the respondents." (The emphasis is ours).

For the avoidance of doubt, we hereby depart from the decision of this court in the said NDK Financial Services Ltd v Yiadom Construction & Electrical Works [2007-2008] SCGLR 93.

For all the foregoing reasons the application is dismissed.

W. A. ATUGUBA