IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2018

CORAM: DOTSE, JSC (PRESIDING)

AKOTO-BAMFO (MRS), JSC
BENIN, JSC
APPAU, JSC
PWAMANG, JSC
CIVIL MOTION
NO. J5/66A/2017

7TH NOVEMBER, 2018

THE REPUBLIC

VRS

HIGH COURT, GENERAL JURISDICTION, ACCRA ……. RESPONDENT

EXPARTE: MAGNA INTERNATIONAL TRANSPORT LTD. ……

APPLICANT

GHANA TELECOMMUNICATIONS CO. LTD. ……. INTERESTED PARTY

RULING

BENIN, JSC:-

The issue for our consideration is whether by virtue of rule 27A of the Court of
Appeal Rules, 1997, C. I. 19 as amended by C. I. 21 the Court of Appeal has
exclusive jurisdiction to hear applications for stay of proceedings from the moment
an interlocutory appeal is filed.

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The Applicant commenced an action at the High Court upon filing a Writ of
Summons and a Statement of Claim for reliefs endorsed thereon. The interested
party entered conditional appearance and subsequently applied for the Writ and
Statement of Claim to be set aside for lack of Jurisdiction. The High Court dismissed
the interested party’s application to set aside the Writ. The interested party lodged
an appeal against the said ruling to the Court of Appeal and filed an application for
stay of proceedings in the High Court which was granted. It is from this grant of stay
of proceedings by the High Court that the present application is grounded.

The Applicant’s case is that the Court of Appeal is the right court to hear applications
for Stay of Proceedings pending the determination of interlocutory appeals. The High
Court has no jurisdiction to hear and grant same and as such acted in excess of its
jurisdiction. Consequently, the applicant seeks an order of certiorari directed at the
ruling of the High Court, General Jurisdiction Division, Accra, presided over by Her
Ladyship Justice Afua Novisi Ayine dated the 11th day of July 2017, which said ruling
stayed proceedings pending the determination of the interlocutory appeal at the
Court of Appeal. The ground for the relief is excess of jurisdiction on the part of the
High Court which error of law is apparent on the face of the record.

The interested party contended that the High Court has jurisdiction under the rules
of court as well as under the court’s inherent jurisdiction to stay its own
proceedings. Counsel dwelt extensively on the court’s inherent jurisdiction which he
said was available to the court, the rules of court notwithstanding. He therefore
urged the court to depart from the ex parte Abodakpi decision.

The issue raised in this application is quite simple but procedurally significant. It
revolves around Rules 21, 27, 27A and 28 of the Court of Appeal Rules C.I 19, as
amended. This issue ought not to have engaged our attention but for the fact that
following the introduction of Rule 27A by C. I. 21 and this court's decision in ex parte
Abodakpi in 2005, infra, the view has been held that the High Court has no
jurisdiction to entertain an application to stay proceedings when an interlocutory
appeal has been filed. Others hold the view that rule 27A does not oust the High
Court’s inherent jurisdiction to stay its own proceedings. We shall examine some

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decisions which have dealt with one or more of these rules directly as well as other
principles of law in coming out with a decision which we believe will bring this
controversy to rest. The relevant Rules under C. I. 19 as amended by C. I. 21 for our
consideration provide:

21. Control of proceedings during pendency of appeal

After the record of appeal has been transmitted from the court below to the Court,
the Court shall be seised 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.

27. Effect of Appeal

(1) An appeal shall not operate as a stay of execution or of proceedings under the
judgment or decision appealed against except where the court below or the Court
otherwise orders-

(a) in the case of the court below, upon application made orally or by motion on
notice to it; and

(b) in the case of the Court, upon application made to it by motion on notice, and
except as provided in this rule no intermediate act or proceeding shall be
invalidated.

(2) When an application is pending for determination under sub-rule (1) of this rule
any proceedings for execution of the judgment or decision to which the application
relates shall be stayed.

(3) There shall, in any case, be a stay of execution of the judgment or decision, or of
proceedings under the judgment or decision appealed from-

(a) for a period of seven days immediately following the giving of the judgment or
decision; and

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(b) for a period of seven days immediately following the determination by the court
below or any application under sub-rule (1)(a) of this rule where the application is
refused by the court below.

27A. Interlocutory appeals-

The Court may in any interlocutory Appeal, civil or criminal before it, grant stay of
proceedings pending the determination of that interlocutory appeal subject to such
terms as the Court considers fit.

28. Court to which application should be made

Subject to these Rules and to any other enactment, where under any enactment an
application may be made either to the court below or to the Court, it shall be made
in the first instance to the court below, but if the court below refuses to grant the
application, the applicant shall be entitled to have the application determined by the
Court.

Rule 21 of C. I. 19 was construed by this court in the case of Republic v. High Court
(Human Rights Division) Accra; ex parte Akita (Mancell-Egala & Attorney-General.
Interested Parties) (2010) SCGLR 374, delivered on 17 February 2010. The court
held that once Form 6 was served on the High Court, its jurisdiction to entertain
applications in respect of the appeal was truncated, even if the application was
pending before the said court at the time Form 6 was served. But until it was served
with the Form 6 the High Court was empowered by rule 21 of C. I. 19 to entertain
applications. And even in that case it was an interlocutory appeal, in respect of an
application for interim injunction. The court made no distinction as to the subject-
matter of the application. The court cited with approval two cases decided under the
old rule 21 of L. I. 218, which is 'in pari materia' with the present provisions. Those
cases are Shardey v. Adamtey and Shardey v. Martey and Another (Consolidated)
(1972) G. L. R 380 and Republic v. High Court, Ho; ex parte Evangelical
Presbyterian Church of Ghana and Another (1991) 1 GLR 323, SC. We take note that
this decision did not specifically consider rule 27A, so one is minded to restrict it to
rule 21. But the reasoning is that not until Form 6 has been issued and served, the

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High Court is at liberty to entertain all applications in respect of the case, and that
will include applications to stay proceedings.

It is a well settled principle that every court has an inherent jurisdiction to stay
proceedings for stated reasons which include, but not limited to, abuse of process.
Indeed in matters on appeal, especially interlocutory, the courts have always
exercised an inherent jurisdiction to stay proceedings pending appeal, lest all their
efforts should become fruitless, a waste of time and resources. The inherent
jurisdiction of the Courts is derived from the common law, which is part of the laws
of Ghana by virtue of article 11(1)(e) of the Constitution, 1992.

The court’s inherent power to stay proceedings has become so entrenched in the
law as to assume the status of indispensability unless clearly ousted by statute. The
editors of Halsbury's Laws put it this way in the 4th edition, Reissue, page 422, para.
533: "The court's general jurisdiction to stay proceedings in proper cases is not
limited by the Civil Procedure Rules, and indeed is distinct from the jurisdiction
conferred by the rules, since the two sources of the court's power continue to exist
side by side and may be invoked cumulatively or alternatively." The same reference
work at para. 529 page 420 re-states the principle thus: "The Court's power to stay
proceedings may be exercised under particular statutory provisions, or under the
Civil Procedure Rules or under the court's inherent jurisdiction, or under one or all of
these powers, since they are cumulative, not exclusive, in their operation" This
passage was quoted with approval by this court in the case of Republic v. High
Court (Commercial Division) Tamale; ex parte Dakpem Zoboguna Henry Kareem &
ors; (Dakpema Naa Alhassan Mohammed Dawuni..Interested Party); Civil Motion
J5/6/2015, dated 4 June 2015, unreported.

A similar view was expressed by the renowned writer Sir I. H. Jacob in an article
titled ‘The Inherent Jurisdiction of the Court, 1970 Current Legal Problems’, at page
25, which was quoted with approval by this court in the case of Footprint Solutions
Co. Ltd. v. Leo & Lee Company Ltd. Civil Appeal No. J4/52/2011, dated 24 May
2013, unreported.

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But we are mindful that where there is clear statutory provision which is in conflict
with an aspect of the court’s inherent jurisdiction, the statute law will prevail.
Therefore, the court’s inherent jurisdiction to stay proceedings is subject to any
restriction or limitation imposed by legislation.

Thus Rules 21 and 28 of C. I. 19 which enable the trial court to have the first
opportunity to stay proceedings before the appellate court becomes seised of the
whole appeal, was just a crystallization of the well-known and time tested principle
and practice. Indeed, in such situation, it is our considered view that any legislation
that seeks to alter the settled principle and practice must be express in language, on
the ground that there is a presumption against implied repeal. In the absence of an
express repeal, the burden is on the party asserting an implied repeal; see the case
of Lybbe v. Hart (1883) 29 Ch D 8 at 15. However, the presumption may be
rebutted and repeal by implication may apply where the provisions of the later
legislation are inconsistent with or repugnant to the provisions of the earlier
legislation, in other words, as stated in the Indian case of Municipal Council, Palau v.
T. J. Joseph, AIR 1963 SC 1561 at 1562 “that the two cannot stand together."
Black's Law Dictionary 9th edition at page 1413 states that implied repeal applies
where there exists "irreconcilable conflict" between the old and new legislation. In
the result we agree with Brett L. J. in A.G. v. Moore, (1878) 3 Ex D 276 at 281, that
if the two may be read together and some application may be made of the words in
the earlier legislation, a repeal will not be implied.

What is the effect of rule 27A of C. I. 19? Does it impliedly repeal rules 21 and 28 in
relation to applications for stay of proceedings in interlocutory appeals? If it does
not, can these provisions be reconciled and made to co-exist? What was the void, if
any, that it came to fill? Did it give exclusive jurisdiction to the Court of Appeal in
applications to stay proceedings during an interlocutory appeal? These are legitimate
questions to be addressed in view of the submission in reference to this court's
decision in Republic v. Fast Track High Court, Accra, Ex parte Daniel Kwasi Abodakpi,
Civil Motion No. J5/15/2005 dated 25th October 2005 unreported. This is the full
decision of the court: "Paragraph 27A of the Court of Appeal Rules, 1997 (C. I. 19)
as amended by C. I. 21, make it quite clear that in interlocutory appeals, it is the

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Court of Appeal, rather than the High Court which has the jurisdiction to grant an
order of stay of proceedings. The application is and the same is hereby dismissed as
without merit”

In addressing the questions posed above, it is necessary to understand what the

situation was prior to the introduction of rule 27A by C. I. 21. That will help us to
unravel for what purpose or objective this rule was introduced. Before the new rule
was introduced, the Court of Appeal was restricted to applications for stay of
execution or stay of proceedings in respect of only the judgment or decision
appealed from, it could not stay the entire case that was before the court below.
That is the clear import of rule 27.

This court had the opportunity to address the provisions contained in rule 27 of C.I.
19 in the case of Takyi v. Ghassoub (1987-88) 2 GLR 452. In that case the High
Court entered judgment for the plaintiff by finding the defendant liable on part of
plaintiff’s claim against him. The defendant appealed against the judgment.
Meanwhile the High Court adjourned the hearing of the question of damages which
was outstanding. The defendant applied to the High Court to stay proceedings to
determine the issue of damages. The application was dismissed by the High Court.
The defendant filed a fresh application before the Court of Appeal which allowed it.
The plaintiff appealed to the Supreme Court on ground that the Court of Appeal did
not have supervisory jurisdiction over the High Court and so too it did not have
original jurisdiction in any matter, so whatever comes to that court must be by way
of an appeal. In allowing the appeal, this court held the view that the Court of
Appeal did not have jurisdiction under rule 27 to order a stay of the entire
proceedings before the High Court, and that rule 27 permitted it to stay matters
related to the judgment or decision appealed from. In this case it opined that the
question of damages had not been determined by the High Court so the Court of
Appeal had no jurisdiction to stay those proceedings.

Indeed the decision in Takyi v. Ghassoub, supra, is an affirmation of another

principle of law that application for stay of proceedings must be made to the court in
which the proceedings are pending. See these cases: Wright v. Redgrave (1879) 11

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Ch D 24 at 35 CA; Re Artistic Colour Printing Co (1880) 14 Ch D 502. The rules have
been fashioned in a way as to give effect to this principle, hence where the record is
still with the court below it hears and determines all applications, but after
transmission of the record the appellate court takes responsibility. Even in repeat
applications the appellate court is entitled to call for all such processes as will enable
it to effectively and effectually determine the interlocutory application.

Thus by the amendment to rule 27 the Court of Appeal has been given an enhanced
jurisdiction over the entire proceedings before the lower court when it is seised with
an interlocutory appeal, and no longer is it confined to matters arising from the
decision or judgment appealed from. That is the extent of rule 27A. This is so
because applications to invoke the court’s expanded jurisdiction are still regulated by
rules 21, 27 and 28. Moreover, by virtue of rules 21 and 28, the Court below still
retains the right to have a first shot at all applications, except where the record of
appeal has been transmitted to the Court of Appeal, in which case the appellate
court becomes seised of the appeal, thereby truncating the trial court's jurisdiction,
inherent or otherwise. By rule 27A, the Court of Appeal was empowered to entertain
application under rules 21 and 27 to stay, not only the judgment or decision
appealed from, but the entire proceedings in the case before the trial court if there
was the need for it. That is additional power given to the Court of Appeal, and this
did not alter the jurisdiction of the trial court to entertain application for stay of
proceedings, whether in relation to the decision appealed from or the entire
proceedings in the case, from a combined reading of rules 21, 27 and 28. This
expanded procedural jurisdiction became necessary in order to forestall the situation
whereby a decision given by the Court of Appeal would be rendered otiose and
fruitless as happened in the case of Footprint Solutions v. Lee & Leo, supra. In that
case whilst the interlocutory appeal was pending before the Court of Appeal the High
Court heard the case and delivered final judgment. So when the Court of Appeal
allowed the interlocutory appeal it was virtually a Pyrrhic victory. Rule 27A enables
the Court of Appeal to entertain application and stay the entire proceedings before
the trial court whilst it hears the interlocutory appeal.

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The makers of these rules must be credited with knowledge of the existing principle
of law that the court has an inherent jurisdiction to stay its own proceedings for
stated reasons, which is independent of the same jurisdiction conferred on it by law
or rules of procedure. That principle is as stated in Halsbury's Laws quoted above,
endorsed by the author I. H. Jacob.

Thus the settled practice which followed this principle of law was that the trial court
retained jurisdiction to stay its own proceedings as long as the record of appeal had
not been transmitted to the Court of Appeal. Consequently, any legislation that
seeks to upset this principle of law and settled practice which gives the court a very
useful and purposeful jurisdiction must be express in its language. For, as earlier
explained, there is a presumption against implied repeal.

We have not had the benefit of the facts and issues leading up to the decision in the
ex parte Abodakpi case. But the decision is clear that it pronounced exclusive
jurisdiction in the Court of Appeal in stay of proceedings in interlocutory appeal.
Unfortunately no reason was given for the decision. No reference was made to rules
21, 27 and 28 of C. I. 19 and the court said nothing about whether rule 27A had
impliedly repealed these rules in as far as applications for stay of proceedings in
interlocutory appeals were concerned. Indeed the court's decision under
consideration does not say, on the face of it, that the trial court has no jurisdiction
even where the record of appeal has not been transmitted to the Court of Appeal.

It is observed that the only part of a court's decision that creates binding precedent
is the 'ratio decidendi'. Other principles stated in a court's decision which do not flow
from the issues to be determined, whether they are the main issues or ancillary
ones, are classified as 'obiter dicta' and do not have the force of law. That is why the
issues must be known as well as the reasons for the court's determination, especially
so, as it seeks to depart from existing legislation, principles of law as well as
practice.

We hold the view that rule 27A did not give exclusive jurisdiction to the Court of
Appeal in application for stay of proceedings in interlocutory appeal. As already

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stated, Rule 27A does not amend, either expressly or even by implication the
provisions of rules 21 and 28. Indeed conditions do not exist for implied repeal to be
applied in the instant in so far as the principle of harmonious construction may be
applied to allow all these provisions to co-exist. Thus reading rules 21, 27, 27A and
28 together, this is the correct construction:

1. Before the transmission of the record of appeal, a party may apply first to the
High Court, failing which he may repeat the application before the Court of Appeal,
invoking rules 21 and 28;

2. When the interlocutory appeal is before it, the Court of Appeal may grant stay of
the entire proceedings before the court below upon application of a party under
rules 21 and 27A.

3. Upon receipt of an application under rule 21, the Court of Appeal may order a
stay of the entire proceedings before the court below by virtue of the power
conferred upon it by rule 27A.

For these reasons we decide that the decision in ex parte Abodakpi was given per
incuriam and we depart from it accordingly in line with article 129(3) of the
Constitution, 1992.

In the instant case the High Court cannot be faulted because at the material time
that it granted a stay of proceedings the Court of Appeal was not seised with the
interlocutory appeal; so it was at liberty to deal with the application to stay
proceedings under rule 21 of C. I. 19. The application fails and is accordingly
dismissed.

A. A. BENIN
(JUSTICE OF THE SUPREME COURT)

DOTSE, JSC:-

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I agree with the conclusion and reasoning of my brother Benin, JSC.

V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)

AKOTO-BAMFO (MRS), JSC:-

I agree with the conclusion and reasoning of my brother Benin, JSC.

V. AKOTO- BAMFO (MRS)

(JUSTICE OF THE SUPREME COURT)

APPAU, JSC:-

I agree with the conclusion and reasoning of my brother Benin, JSC.

Y. APPAU
(JUSTICE OF THE SUPREME COURT)

PWAMANG, JSC:-

I agree with the conclusion and reasoning of my brother Benin, JSC.

G. PWAMANG
(JUSTICE OF THE SUPREME COURT)

COUNSEL

NANA AGYEI BAFFOUR-AWUAH WITH TERESA TABI AND NAA AMANKUMA BARNOR
FOR THE APPLICANT.

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ACE ANKOMAH WITH GOLDA DENYO FOR THE INTERESTED PARTY.

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