22 Mar The Republic V High Court (Criminal Division 9), Accra, Exparte: Ecobank Ghana Limited; Origin 8 Limited & Greater Accra Passenger Transport Executive (Interested Parties) Civil Motion No. J5/10/2022 Delivered On 18th January, 2022.
“… we reject the view of the trial judge, supported by the interested party, that in enacting C.I.132, the rule maker intended to take away the well-settled jurisdiction of the High Court in relation to applications for stay of execution and of proceedings pending appeal.”
After the grant of judgment in favour of the Judgment Creditor/Interested Party, at the High Court, it sought to enforce the judgment by applying for a garnishee order nisi against the Judgment Debtor’s banks (an initial order for the Judgment Debtor’s bank(s) to surrender monies belonging to the Judgment Debtor in their possession to settle the debt owed).
Following the grant of garnishee orders nisi against two of the Judgment Debtor’s banks at the High Court, the Court ordered one bank (the “Applicant”), to pay the whole of the judgment debt to the Judgment Creditor/Interested Party from the Judgment Debtor’s account. Being dissatisfied, the Applicant, lodged an appeal against the order in the Court of Appeal.
The Applicant subsequently applied for a stay of execution pending the appeal at the Court of Appeal to temporarily suspend the execution of the order granted by the High Court. The application was dismissed. The Applicant then made a similar application to the High Court to stay execution pending the appeal.
The High Court did not hear the application on the merits but dismissed it as incompetent on the basis that the power of the High Court to temporarily suspend the execution/stay execution of its judgment or order that has been appealed against has been taken away by the Court of Appeal (Amendment) Rules, 2020 (C.I.132).
The Applicant then filed an application to quash the decision on grounds that the High Court committed an error of law by pronouncing that it had no authority to grant the stay of execution. The Applicant further applied for an order to compel the High Court to hear and determine the application for stay of execution substantively.
The Supreme Court stated that, although the Court of Appeal Rules, 1997 (C.I.19) had been amended to delete references to the High Court in applications for stay of execution, the perception that the rule maker intended to completely take away the authority of the High Court in applications for stay of execution is a misconception.
The Supreme Court took the view that the actual power of the High Court to hear such applications stems from the High Court (Civil Procedure) Rules (C.I.47). Thus, additional references in the Court of Appeal Rules, 1997 (C.I.19) were needless. The same rule applies in appeals from the Court of Appeal to the Supreme Court as per the Supreme Court Rules, 1996 (C.1.16).
The Supreme Court added that Rule 21 of C.I. 19 rather prevents the Court of Appeal from being the first to hear applications for stay of execution.
In the Applicant’s scenario, the High Court had the power to hear and determine the application for stay of execution on its merits. The Supreme Court therefore quashed the decision of the High Court judge and ordered the High Court Judge to hear and determine the application on its merits.
Insight: Notwithstanding the coming into force of the Court of Appeal (Amendment) Rules, 2020 (C.I.132), the position remains that, when an appeal has been lodged in the Court of Appeal against a decision, the lower court continues to have jurisdiction to hear all interlocutory applications, including applications for stay of execution, under the decision appealed against until the record of the appeal has been transmitted to the Court of Appeal.
Author: Maame Barnie Amoah discusses a recent Supreme Court decision which brings under the spotlight, the well established jurisdiction of the High Court in relation to applications for stay of execution and of proceedings pending appeal.