IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA-AD 2021
CORAM: APPAU, JSC (PRESIDING)
OWUSU, JSC
L-JOHNSON, JSC
HONYENUGA, JSC
AMADU, JSC
CIVIL MOTION
NO. J8/83/2021
21ST JULY, 2021
1. MOST REV. DR. ROBERT ABOAGYE MENSAH
2. MOST REV. DR. JOSEPH OSEI BONSU PLAINTIFFS/APPELLANTS/
3. RT. REV. DANIEL YINKAH SARFO RESPONDENTS/APPLICANTS
4. EDWARD OSEI BOAKYE TRUST FUND
VRS
YAW BOAKYE …... DEFENDANT/RESPONDENT/APPELLANT/RESPONDENT
RULING
AMADU JSC:-
INTRODUCTION
(1) The key question for determination in this application is not entirely novel, yet
recondite because the paucity of decisions of this Court have not settled the
question whether or not within the meaning and effect of Article 129(4) of 1992
Constitution, this Court has the power to enforce its own judgments and orders
without necessarily referring same to any lower court.
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BACKGROUND FACTS
(2) On 17th October, 2008 the Plaintiffs/Appellants/Respondents/ Applicants
(hereinafter referred to as “the Applicants”), acting in their capacity as executors
and trustees of the Late Edward Osei Boakye (hereinafter referred to as “the
deceased”), issued a writ of summons against the
Defendant/Respondent/Appellant/ Respondent (hereinafter referred to as “the
Respondent”). By this writ, the Applicants challenged the validity of a letter dated
21st January, 2008 addressed by the executors of the estate of the deceased to
the Respondent authorizing him to enter plot numbers 6 & 7, Airport Commercial
Centre, Accra, the subject matter of dispute (hereinafter referred to as “the
property”) to complete the uncompleted building thereon belonging to the
deceased.
(3) On 13th November, 2009 on the Respondent’s application, the Applicants’ action
was dismissed by the High Court on the grounds that it did not disclose any cause
of action against him. Subsequently, on 23rd June, 2011 in a judgment delivered
by the Court of Appeal, the decision of the High Court was reversed and judgment
entered in favour of the Applicants on the grounds that the letter dated 21st
January, 2008 was invalid as it violated the provisions of section 105(1) of the
Administration of Estates Act, 1961 (Act 63), among other reasons. Consequently,
the Respondent was ordered to stop all constructional works on the property. It
was further held that the 4th Applicant was entitled to take possession of the
property as directed in the last Will and Testament of the deceased.
(4) Aggrieved by and dissatisfied with the judgment of the Court of Appeal, the
Respondent appealed to the Supreme Court. During the pendency of that appeal,
the parties agreed to compromise the judgment of the Court of Appeal on terms
they had negotiated and agreed upon, as shown in the terms of settlement
executed and witnessed by their respective lawyers. By a motion on notice filed in
the Registry of this Court on 11th September, 2014 the Respondent notified this
Court about the completion and execution of terms of settlement by the parties.
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The settlement reached therefore effectively ended the dispute submitted to this
Court for determination.
(5) On 12th November, 2014 this Court constituted by a single justice adopted the
terms of settlement as consent judgment in accordance with the wishes of the
parties and the advice of their lawyers. The obligations of the Applicants under the
consent judgment include the waiver of their rights under the judgment of the
Court of Appeal by forfeiting recovery of possession and granting the Respondent
a sub-lease over the property for a term of fifteen years from 1st May, 2015
expiring on 30th April, 2030. In return, the Respondent became bound to pay the
Cedi equivalent of US$35,000.00 per month to the Applicants as yearly rent from
1st May, 2015. The Respondent paid and the Applicants acknowledged receipt of
the Cedi equivalent of US$420,000.00 as rent for one year from 1 st May, 2015 to
30th April, 2016. The Respondent also agreed to allocate one shop or office space
on the ground floor of the property (hereinafter referred to as “the office space”)
to the Applicants on completion of works.
(6) The Applicants filed an entry of judgment detailing the obligations imposed by the
consent judgment. Subsequently, on account of some default on the part of the
Respondent, an application was filed in this court seeking leave to go into
execution to recover accrued rent due under the consent judgment. The ruling
delivered by our respected brother Pwamang JSC on 14th February, 2018 indicated
the High Court as the proper forum for seeking leave to execute the consent
judgment, although the said application was, on the record, struck out as
withdrawn. Subsequently, leave to execute the consent judgment was sought from
the High Court, but same was refused on 25th October, 2019. This decision resulted
in an appeal filed on 1st November, 2019. On 18th January, 2019 the Applicants
also issued a writ for recovery of possession for non-payment of rent, among other
reliefs. An order of interim preservation and inspection made by the High Court on
26th June, 2019 occasioned several interlocutory appeals and motions in this and
other courts. Therefore, there is no doubt that by the terms of settlement which
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resulted in the consent judgment, the parties agreed to resolve their disputes
amicably.
(7) By motion on notice filed on 18th January, 2021 brought pursuant Article 134(b)
of the 1992 Constitution, the Respondent applied to this Court to have the order
adopting the terms of settlement set aside on the grounds that the single justice
of this Court lacked the jurisdiction to adopt the terms of settlement as consent
judgment. In the Respondent’s view, the application for the adoption of the terms
of settlement should have been placed before this Court constituted by five
justices. The Applicants opposed the application on the basis, inter alia, that there
was no longer a dispute when the parties executed the terms of settlement and
filed same on 11th September, 2014 for adoption. Therefore, the adoption by a
single justice of this Court was made within jurisdiction as this court did not
determine the merits of the appeal which had been settled by the parties and was
no longer pending.
(8) On 20th May, 2021 a review panel of this Court dismissed the application by the
Respondent challenging the validity of the adoption order made by this Court
constituted by a single justice. The review panel found no merit in the argument
of the Respondent, since there was no cause or matter pending after the terms of
settlement had been filed in the Registry of this Court. Accordingly, the adoption
of the terms of settlement as consent judgment in the compromised suit before
the single justice of this Court was found to have been made within jurisdiction.
The status of the consent judgment was thus affirmed to be valid and the agreed
terms therein binding on the parties.
THE INSTANT APPLICATION
(9) The Applicants filed the instant application on 17th March, 2021 pursuant to Article
129(4) of the 1992 Constitution, on the ground that the Respondent has defaulted
in his obligations under the consent judgment. Accordingly, the Applicants seek
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leave of this Court to enforce the outstanding obligations of the Respondent. Article
129(4) of the Constitution provides:
“129(4) For the purposes of hearing and determining a matter within its
jurisdiction and the amendment, execution or the enforcement of a
judgment or order made on any matter, and for the purposes of any
other authority, expressly or by necessary implication given to the
Supreme Court by this Constitution or any other law, the Supreme Court
shall have all the powers, authority and jurisdiction vested in any court
established by this Constitution or any other law”. The Applicants argued
in support of their application that, the framers of the constitution in empowering
this Court to directly enforce its decisions, orders or judgments under this provision
envisioned a situation where litigants before this Court would prefer enforcement
in the High Court to enable fresh round of litigation from the High Court, through
the Court of Appeal and ultimately back to this Court. In their view, this is the very
mischief which is cured by the constitutional provision that vests us with the full
enforcement powers of any other court.
(10) In support of the above arguments, Counsel for the Applicants relied on the
decision of this Court in Republic Vs. High Court (Fast Track Division),
Accra (Attorney-General Interested Party) Ex Parte Forson [2013-2014]
1 SCGLR 690 and contended that, this court has the jurisdiction to enforce its
own decisions applying any existing rules of procedure or practice available in any
court by virtue of Article 129(4) of the Constitution. Counsel also referred to the
opinion of Benin JSC, applying the decision in Ex Parte Forson, In Amidu (No. 1)
Vs., Attorney-General & Others [20017-2018] 1 SCLRG 477 at page 485, expressed
in these words: “. . . It is not the business or duty of counsel for a judgment debtor
to tell this Court how to enforce or direct the enforcement of its decisions, orders
and judgments. The mode of selecting an enforcement mechanism is the preserve
of the judgment creditor. Rule 28 is not mandatory for the Court to comply with, it
may invoke it if it so desires. Thus, the fact that the Court did not refer the
enforcement to the High Court is a matter of no consequence, as the Court has
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decided that it has the right, the means and the power to enforce its own
judgments and orders applying any existing rules of practice available in any court
in Ghana by virtue of Article 129(4) of the Constitution.”
(11) The Applicants in their affidavits in support of this application, claimed that the
Respondent has been in default of the consent judgment from 1st May, 2016 to
date and that in respect of the Respondent’s rent obligation,
the Cedi equivalent of US$2,520,000.00 representing accrued rent for six years
from 1st May, 2016 to 30th April, 2022 being the quantum of payment that is
overdue for settlement. In the view of the Applicants, this being a debt under the
consent judgment, it is executable as judgment debt. Also, the office space the
Respondent agreed to allocate to the Applicants upon completion of the building
is an undischarged liability which is also executable. It was further submitted by
Counsel for the Applicants that by the provisions of Article 129(4) of the
Constitution, this Court is the proper forum for enforcement of the duties under
the consent judgment.
(12) The Respondent in his affidavit in opposition challenged the competence of the
application on the premise that the earlier application filed by the Applicants in this
Court was refused. The Respondent further contended that the ruling of this Court
per Pwamang JSC, as a single justice of this Court, was not challenged by the
Applicants by way of an application for review as required under Article 134(b) of
the Constitution. The Respondent further asserted that on 28th March, 2018,
another application filed by the Applicants in the High Court, Commercial Division
was refused. Thereafter, an appeal was lodged by the Applicants and written
submissions already filed by the parties. In the view of the Respondent, the
present application is an abuse of the process and amounts to forum shopping by
the Applicants. Counsel for the Respondent also argued that this Court exercises
concurrent jurisdiction with the High Court when it comes to enforcement of its
decisions. So the process already initiated by the Applicants in the High Court
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culminating in the appeal before the Court of Appeal bind the Applicants, rendering
this application unmeritorious.
(13) An examination of the earlier ruling of this Court per Pwamang JSC sitting as a
single justice, shows that the application before the court was not determined on
the merits as it was withdrawn by the Applicants. For this reason, the ruling which
followed the withdrawal of that application could not have been a determination
of the application on the merits. Consequently, the said ruling cannot bar the
Applicants from invoking our jurisdiction under the Constitution. The law is that,
previous conduct would not constitute an estoppel preventing the exercise of a
constitutional right or enjoyment of a constitutional remedy. In New Patriotic
Party Vs. Electoral Commission & Anor. [1993-1994] 1 GLR 124 this Court
stated as follows: “Our first reaction is that such equitable defences -
acquiescence and inaction or conduct - must not be allowed to operate
as a shield to prevent a citizen from ventilating and enforcing his
constitutional rights. Otherwise, sooner or later, the good intentions of
the framers of the Constitution, as enshrined in Article 2(1) of the
Constitution, will be defeated.”
(14) Further, in In Re Kwabeng Stool; Karikari Vs. Ababio II (2001-2002)
SCGLR 515, this Court stated the principle that, for an earlier decision to
constitute an estoppel, it must have been delivered on the merits by a court of
competent jurisdiction. Further, estoppel was said to be wholly inapplicable if it is
meant to cure non-compliance with statute. At page 531 of the report in the case
under reference, this Court held as follows: “Estoppel of all kinds, however,
are subject to one general rule: they cannot override the laws of the
land. Thus, where particular formality is required by statute, no estoppel
will cure the defect and jurisdiction cannot be given to the court by
estoppel, where statute denies it. In order that estoppel by record may
arise out of a judgment, the court which pronounced the judgment must
have had the jurisdiction to do so.” Therefore, the earlier application having
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been struck out as withdrawn, the opinion which followed the acknowledgment of
the withdrawal, does not have any legal consequence and cannot disable the
Applicants from asserting a constitutional right or remedy not already pronounced
upon by this Court.
(15) The Respondent’s counsel also opposed the application before us on the ground
that it was an abuse of the process considering the earlier opinion of Pwamang
JSC (supra). In Attorney-General Vs. Sweater & Socks Factory Limited
[2013-2014] 2 SCGLR 946 at 969, this Court opined that the abuse of the
process principle does not apply if in the new action, the court’s attention is being
drawn to either a breach of the constitution or a jurisdictional error. In the case
under reference this Court per Wood (CJ) stated as follows: “More importantly,
it is very clear from the abuse of process doctrine as discernible from all
the decisions of this court, without a single exception, that special
circumstances, would justify its exclusion or applicability and allow the
litigation of issues which could have or ought to have been brought up
for adjudication in a previous action, but were not. Given that estoppels
of all kinds cannot override the laws of this land, I would include,
constitutional questions, jurisdictional questions, arising from alleged
constitutional or statutory violations, such as the one raised before us,
as some of the exceptional grounds on which, in a fresh action involving
the same parties or privies, a defendant cannot successfully rely on the
plea of abuse of process in defence.”
(16) On the basis of this opinion, the abuse of the process argument by Counsel for the
Respondent must fail. In Sweater & Socks Factory Limited case (supra),
estoppel could not have been applicable against the Attorney-General as Plaintiff
upon raising a constitutional issue for the first time, despite an earlier dispute in
which it was not raised. In the same vein, the Applicants in this case can bring for
our consideration a constitutional remedy they think they are entitled to, their
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previous application, notwithstanding. The ruling of Pwamang JSC following the
withdrawal of the application did not provide the opportunity to examine the merits
of the application relative to Article 129(4) of the Constitution. Accordingly, we
dismiss Respondent’s counsel’s contention on this point and we hold that bringing
up this application which raises for the first time both a constitutional and
jurisdictional argument for our consideration, cannot constitute an abuse of
process.
(17) In this application, the key issue for determination is whether this Court is vested
with the power, and authority to enforce its own decisions using rules of procedure
of available in any court. In Amidu Vs. Attorney-General & Water Ville
[2017-2018] 2 SCLRG 615, this Court overruled an objection by the claimant
who opposed a direct enforcement by this Court under Article 129(4) and preferred
enforcement at the High Court in order to enable enjoyment of its constitutional
right to appeal if necessary. This Court held that if the objection was upheld, that
will clearly undermine the effectiveness and purpose of Article 129(4) of the
Constitution. Further, the Supreme Court will be surrendering its jurisdiction as
conferred by the Constitution to a lower court and that step in itself will be
unconstitutional. This decision delivered by our respected brother, Benin JSC, sitting
as a single justice of this Court was, in a subsequent review application, affirmed in Amidu Vs.
Attorney-General & Others (J7/05/2019) (27th March 2019, unreported). In
Republic Vs. High Court, Accra (Industrial & Labour Division Court 2);
Ex-Parte Peter Sangber-Dery [2017-2018] 1 SCLRG 552, that a court has
no jurisdiction to surrender or decline jurisdiction it is vested with.
(18) Clearly therefore, by virtue of the provision of Article 129(4) of the Constitution as
applied by this Court in the decisions referred to above, this Court is vested with
the power and means of enforcing its rulings, orders or judgments. Thus, the
opinion proffered by Pwamang JSC regarding the High Court being the proper
forum for the enforcement of our orders or decisions as expressed in the ruling
dated 14th February, 2018 must not be construed to mean that under the provision
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of Article 129(4) of the Constitution, this court lacks the power in appropriate
circumstances to grant leave for enforcement of its own judgments and orders.
(19) Having established the existence of the constitutional power and mandate of this
Court to directly enforce its decisions or orders, the order of this Court adopting
the terms of settlement between the Applicants and the Respondent as consent
judgment, brings the executable terms thereof within the enforcement powers of
this Court. From the processes filed by the parties, there is no doubt that the sub-
lease for a term of fifteen years from 1st May, 2015 was granted by the Applicants
and same was received by the Respondent as revealed by the sub-lease executed
by the parties. The monthly rent payable in the first five years of the sub-lease
was fixed by the parties at the Cedi equivalent of US$35,000.00 from 1st May 2015.
It is not in dispute that one year rent was paid by the Respondent for the period
1st May, 2015 ending 30th April, 2016.
(20) The Respondent has also not denied the allegation that no payment has been
made by him since the initial payment resulting in outstanding rent in the sum of
US$420,000.00 per annum from 1st May, 2016. On 1st May, 2021 rent for six years
for the period 1st May, 2016 ending 30th April, 2022 in the total sum of
US$2,520,000.00 had accrued for payment by the Respondent to the Applicants.
Based on the payment obligations of the Respondent in the consent judgment, the
rent outstanding for settlement by the Respondent thereunder became judgment
debt which is open to execution by any of the known enforcement procedures
under the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The Respondent has
also not discharged his obligation under the consent judgment to allocate the office
space to the Applicants. This default is also executable.
(21) Having regard to the clear provisions of Article 129(4) of the Constitution, and the
unqualified and unconditional duties of the Respondent under the consent
judgment to pay rent and to allocate the office space, we are obliged to grant the
Applicants leave to execute all or any of the outstanding obligations of the
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Respondent. In granting this application, we are also minded to prevent a situation
of re-litigation of issues already settled by the consent judgment. Enforcement of
specific obligations under the consent judgment and enforcement of the consent
judgment as a whole are not separable.
(22) The enforcement of outstanding obligations and enforcement of the consent
judgment as a whole by preventing the parties from re-opening matters already
settled thereunder are consistent with the letter and spirit of Article 129(4) of the
Constitution and the public policy discouraging endless litigation. Anything
otherwise, may result in an untidy situation where lower courts will exercise the
discretion whether or not the final orders of this Court referred for enforcement
be carried out. In cases where issues already settled are re-litigated with
outcomes contradicting the terms contained in the final orders from this Court,
such a conceivable situation will certainly result in an absurdity where our superior
jurisdiction properly exercised will be subjected to the discretion of a court of
inferior jurisdiction with the resultant possibility of re-litigation of the same issues
through the hierarchy of the courts.
(23) Apart from our jurisdiction under Article 129(4) of the Constitution, it is also trite
that a court of law does not have the jurisdiction to sanction a breach of contract
by a party to the contract. One of the inherent duties of a court is to enforce legal
obligations assumed by parties. Granting the Applicants leave to enforce the
consent judgment and not permitting re-litigation of issues resolved in the terms
of settlement leading to the consent judgment are also in line with this inherent
duty. In Republic Vs. High Court, Accra, Ex-Parte Deborah Atakorah (Billy
Cudjoe – Interested Party) [2015-2016] 1 SCGLR 298, this court decided
that terms of settlement signed by parties whether in or out-of-court are binding
and that a court will lack the jurisdiction to grant a party a dispensation to break
his own contract arbitrarily. At page 338 of the report, Atuguba JSC had this to
say: “The parties’ terms of settlement are binding upon them because
they are contractual. That being so we find it difficult to see how when
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one of the terms of such settlement is that they be made a consent
judgment, such a term should not also have contractual binding effect.
By allowing the interested party to overthrow that term the trial judge
in effect granted him a dispensation to break his own contract
arbitrarily. A court has no such jurisdiction.”
(24) Therefore, based on the enforcement mandate given to this court by the
Constitution, coupled with the inherent duty of the courts to enforce legal
obligations of parties before it, failing to enforce the terms of the consent
judgment, will be unconstitutional and an abdication of our judicial duty. In
granting the Applicants’ leave to execute the consent judgment by enforcing the
obligations of the Respondent thereunder, we have also taken note of the decision
of this court in Ex-parte Atakorah (supra) where at page 333 it was held that:
“Where, however the terms of settlement by consent of the parties are
entered by the court as a consent judgment then it becomes, like any
other judgment an executable judgment of the court if it contains
executable orders.”
(25) For all the reasons set forth, the application filed by the Applicants for leave to go
into execution for the enforcement of any of the outstanding obligations of the
Respondent in this Court ought to succeed. On the terms of the consent judgment,
the undischarged payment obligations of the Respondent which include payment
of the Cedi equivalent of US$2,520,000.00 being unpaid total rent due at the
monthly rate of US$35,000.00 from 1st May, 2016 to 30th April, 2022 and the
recovery of the office space agreed to be allocated to the Applicants by the
Respondent are enforceable by this Court directly.
(26) Accordingly, the application for leave to go into execution is hereby granted. The
Applicants are at liberty to enforce any and all the outstanding obligations of the
Respondent under the consent judgment aforesaid, by applying the judgment
enforcement rules of any court as provided under Article 129(4) of the
Constitution.
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I.O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
M. OWUSU
(JUSTICE OF THE SUPREME COURT)
A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
DANIYAL ABDUL-KARIM ESQ. FOR THE APPLICANTS.
YAW OPOKU ADJAYE ESQ. FOR THE RESPONDENTS.
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