MOCHCOM LIMITED VRS CYPRESS INVESTMENTS LTD. (J4/42/2023) [2024] GHASC 31 (4 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA - A.D. 2024 CORAM: BAFFOE-BONNIE JSC (PRESIDING) OWUSU (MS.) JSC GAEWU JSC KWOFIE JSC DARKO ASARE JSC CIVIL APPEAL NO. J4/42/2023 4TH JUNE, 2024 MOCHCOM LIMITED ............ PLAINTIFF/RESPONDENT/RESPONDENT VRS CYPRESS INVESTMENTS LTD. ……… DEFENDANT/APPELLANT/APPELLANT JUDGMENT KWOFIE JSC: My Lords, the issue for our consideration is whether by virtue of the passage of the Court of Appeal (Amendments) Rules, 2020 (C.I. 132) the jurisdiction of the Court of Appeal to determine applications for stay of proceedings pending appeal has been revoked. This is an interlocutory appeal against the decision of the Court of Appeal dated 9th February, 2022, refusing to determine an application for stay of proceedings pending appeal of the ruling of the High Court, Tema. The facts giving rise to the interlocutory appeal are quite simple and straight forward. Page 1 of 14 The plaintiff/respondent/respondent (hereinafter referred to as the plaintiff) on the 4th of December 2020, brought an action against the defendant/appellant/applicant/appellant (hereinafter referred to as the defendant) at the High Court, Tema seeking the following reliefs: i) Damages for breach of contract ii) Interest on the sum of $812,606.23 (Eight Hundred and Twelve Thousand, Six Hundred and Six Dollars, Twenty-Three cents) from 21st February, 2018 at a rate which is two (2) percentage points above and additional to the commercial lending rate charged by Standard Chartered Bank (Ghana) Limited till date of final payment. iii) Cost The defendant entered conditional appearance to the said suit and then filed an application for an order referring the pendency of the suit to the Chief Justice for onward transfer under Section 105 of the Courts Act, 1993 (Act 459) and Order 3 rules 1 and 2 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The application was heard and was dismissed by the High Court, Tema on 24th November, 2021. Dissatisfied with the ruling of the High Court, the defendant filed a Notice of Appeal against the said ruling to the Court of Appeal, Accra. Subsequently, the defendant applied for stay of proceedings pending appeal before the High Court, Tema. The plaintiff filed an affidavit in opposition and vehemently opposed the said application for stay of proceedings pending appeal. The High Court, Tema after hearing the application for stay of proceedings pending appeal, dismissed same. Dissatisfied with the ruling of the High Court, Tema dismissing the application for stay of proceedings, the defendant repeated the application for stay of proceedings pending appeal before the Court of Appeal. The application before the Court of Appeal was opposed by the plaintiff. The Court of Appeal heard and dismissed the repeat application for stay of proceedings pending appeal on the ground that the Court of Appeal had no Page 2 of 14 jurisdiction to entertain the application for stay of proceedings pending appeal by virtue of the Court of Appeal (Amendment) Rules, 2020 (C.I. 132) and awarded cost of GH¢3000.00 against the defendant. Feeling further aggrieved and dissatisfied with the ruling of the Court of Appeal, the defendant applied for special leave to appeal to the Supreme Court pursuant to Article 131(2) of the 1992 Constitution and Section 4(2) of the Courts Act, 1993 (Act 459). After hearing, counsel for both parties the Supreme Court granted the application for Special Leave on 22nd March 2022 on the ground that there is the real need for this Court to determine and deal with the germane issues raised. Pursuant to the Special Leave granted by the Supreme Court, the defendant on the 24th of March 2022 filed a Notice of Appeal in this Court on the following grounds: a) That the learned Justices erred in law in dismissing the application on grounds that C.I. 132 has revoked the jurisdiction of the Court of Appeal to determine applications for stay of proceedings pending appeal. Particulars of Error of Law i) The Learned Justices misconstrued the import of C.I. 132 ii) The learned Justices erroneously failed to appreciate that the Court of Appeal has inherent jurisdiction to hear and determine repeat applications for stay of proceedings pending appeal. b) That the learned Justices erred in awarding costs against the applicant as a consequence for dismissing the applicant’s repeat application for stay of proceedings pending appeal in so far as the grounds for the dismissal of the application is wrong in law. Counsel for the defendant in arguing ground (a) of the appeal contended that the ruling of the Court of Appeal did not indicate which provision of C.I.132 the court relied upon to arrive at the determination that the Court of Appeal had no jurisdiction to entertain applications for stay of proceedings pending appeal. Counsel for the defendant further Page 3 of 14 argued that a careful reading of C.I.132 does not support the Court of Appeal’s position that C.I. 132 has revoked the jurisdiction of the Court of Appeal to entertain and determine applications for stay of proceedings pending appeal. Counsel further argued that quite apart from statute law, the Court of Appeal has inherent jurisdiction to entertain and determine applications for stay of proceedings and referred to the decision of this Court in the case of The Republic vs. High Court (Criminal Division 9) Accra exparte Ecobank Ghana Ltd. – Applicant 1. Origin 8 Limited 2. Greater Accra Passenger Transport Executive - (Interested Parties/Respondents) He added that the Court of Appeal inadvertently failed to consider the settled practice of the inherent powers of the Court and erroneously ruled that the Court of Appeal had no jurisdiction to entertain repeat applications for stay of proceedings. As was to be expected, counsel for the plaintiff argued that the Court of Appeal was right when it stated that it had no jurisdiction to entertain the repeat application for stay of proceedings pending the determination of the interlocutory appeal. He submitted that Rule 28 of the Court of Appeal Rules 1997 (C.I.19) provided a statutory basis for the Court of Appeal to entertain and determine a repeat application for stay of proceedings pending the determination of appeal. He argued that with the revocation of Rule 28 of C.I.19 by the Court of Appeal (Amendment) Rules 2020, (C.I. 132), the statutory basis upon which the Court of Appeal could determine repeat applications from the court below when the record of appeal had not yet been transmitted to it from the trial court had effectively been washed away. The ruling of the Court of Appeal dated 9th February 2022 which is the subject of appeal was short and was as follows: Page 4 of 14 “By Court This application is for stay of proceedings pending the determination of an interlocutory appeal. After examining the processes filed and hearing counsel for the parties, we are of the view that we are unable to exercise our inherent jurisdiction as is being urged on the Court by counsel for the applicant. C.I. 132 has revoked the jurisdiction of this Court to hear the instant application. We are therefore unable to grant the application as prayed and accordingly dismiss same. Counsel for the Respondent prays for costs of GH¢4000.00. counsel for applicant offers GH¢2000. By Court: Cost of GH¢3000.00 awarded against the applicant.” As counsel for the appellant correctly argued, the learned justices of the Court of Appeal did not determine the application for stay of proceedings pending appeal on its merit, but took the view that the Court’s jurisdiction to determine the application had been revoked by C.I.132. But is the view of the Court of Appeal that C.I.132 has revoked its jurisdiction to entertain and determine repeat applications for stay of proceedings correct? This Court has in a plethora of cases discussed and dealt with various provisions of the Court of Appeal Rules specifically Rules 21, 27, 27A and 28 of the Court of Appeal Rules 1997 (C.I.19 as amended) and also dealt with the effect of the Court of Appeal (Amendment) Rules, 2020 (C.I.132). These cases include The Republic vs. High Court, (General Jurisdiction) Accra ex-parte Magna International Transport Ltd. (Applicant) Ghana Telecommunications Co. Ltd (Interested party) (2017- 2018) 2 SCGLR (Adaare) 1024 and The Republic vs. High Court (Criminal Division 9) Accra ex-parte Ecobank Ghana Limited (Applicant) Origin 8 Limited and Greater Accra Passenger Transport Executive (interested parties/Respondent) Page 5 of 14 For the purpose of this judgment, the relevant provisions of the Court of Appeal Rules 1997 (C.I.19) are Rules 21, 27, 27A and 28. C.I. 132 has revoked Rules 27A and 28 of C.I. 19 and also amended Rule 27 of C.I.19 thereof. Rule 27, 27A and 28 of C.I.19 provided as follows: “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 27A) Interlocutory Appeals The Court may in any interlocutory appeal, civil or criminal before it, grant a stay of proceedings pending the determination of the interlocutory appeal subject to the conditions 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 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” It is Rules 27A and 28 of C.I.19 that have been revoked by C.I.132 but Rule 21 of C.I.19 was left untouched and is still in effect. Rule 21 of C.I. 19 provides as follows: Page 6 of 14 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 seized 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 an application may be filed in the Court below for transmission to the Court. 16(16) In the case of The Republic vs. High Court (General Jurisdiction) Accra ex-parte Magna International Transport Ltd and 1 other (supra) this Court stated per Benin JSC as follows: “ Rule 21 of C.I.19 was construed by this court in the case of Republic vs. 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 to entertain applications. ...............” With respect to the exercise of a court’s inherent jurisdiction, the Supreme Court stated in the ex parte Magna International Transport case (supra) as follows: “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) 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 442 paragraph 533”. The Page 7 of 14 courts 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 courts power continue to exist side by side and may be invoked cumulatively or alternatively”. The same reference work Halsbury’s Laws at paragraph 529 page 420 restates the principle thus: “The Court’s power to stay proceedings may be exercised under particular statutory provisions, or under the Civil Procedure Rules or upon the Courts inherent jurisdiction, or under one or all of these powers, since all are cumulative, not exclusive, in their operations” See the case of Republic vs. 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 In his article on: The Inherent jurisdiction of the Court, 1970 Current Legal Problems, Sir I. H. Jacobs, a renowned contributor to Civil Procedure in the common Law said at page 25 as follows: “The inherent jurisdiction of the Court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the Court. The two heads of powers, are generally cumulative and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction” In the same article under reference, the learned author stated at page 33 as follows: “The exercise of this power has been pervasive throughout the whole legal machinery and has been extended to all stages of proceedings, pretrial, trial and post-trial” Page 8 of 14 Thus the inherent jurisdiction of the court could be invoked at any stage of the proceedings in so far as the action is pending. Therefore any court has jurisdiction either through the Civil Procedure Rules or its inherent jurisdiction, to stay proceedings. In the case of Footprint Solutions Co. Ltd vs. Leo & Lee Company Ltd Unreported judgment of the Supreme Court delivered on 24th May 2013, Anin Yeboah JSC (as he then was) in discussing the inherent jurisdiction of a court referred to the case of Acheampong vs. Asare-Manu (1976) 1 GLR 28 at page 29 where Osei Hwere J stated with regard to the exercise of the inherent jurisdiction that: “.......... One of such areas where the courts inherent powers can be invoked is where necessary to prevent injury being inflicted by its own judgment ....” Now Rules 27A and 28 of the Court of Appeal Rules 1997 (C.I.19) having been revoked, what then is the position with respect to applications covered by the 2 provisions? For ease of reference 1 set out Rules 27A and 28 of C.I. 19 which have been revoked. 27A. Interlocutory Appeals The Court may in an interlocutory appeal, Civil or Criminal before it, grant a stay of proceedings pending the determination of the interlocutory appeal subject to the conditions the court considers fit 28. Court to which application should be made Subject to these Rules and to any other enactment, where under an enactment, an application may be made 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 is entitled to have the application determined by the Court. With Rule 27A and 28 having been revoked by C.I. 132 what is the position with the Court of Appeal’s power to stay proceedings in respect of a repeat application where the lower Court refuses to grant the application at first instance as happened in the instant case? Page 9 of 14 In the case of Footprint Solutions Co. Ltd vs. Leo & Lee Company Ltd (supra) where the Court of Appeal’s jurisdiction to grant a repeat application for stay of proceedings was questioned, this Court speaking through Anin Yeboah JSC (as he then was) stated as follows: “ It is settled at law that orders of stay of proceedings and stay of execution are conceptionally different. Whereas a stay of proceedings may bring a temporary halt to proceedings, an order of stay of execution on the other hand operates to bring the processes of execution to a temporary halt. Infact while rule 27A of C.I. 21 regulates the exercise by the Court of Appeal of its inherent jurisdiction, the exercise of the jurisdiction itself as the designation imports, is innate to the court itself (emphasis mine) Therefore, independent of rules 27A and 28 of the Court of Appeal Rules 1997 (C.I. 19), the Court of Appeal could in the exercise of its inherent jurisdiction which was innate to the court itself, grant an order of stay of proceedings in so far as the action is pending. In the case of the Republic vs. High Court (Criminal Division 9) ex parte: Ecobank Ghana Limited (Applicant) 1. Origin 8 limited 2. Greater Accra Passenger transport Interested parties/Respondent this Court had the occasion to discuss the pertinent question of whether with the revocation of Rule 28, it is still permissible for an applicant for stay of execution pending appeal whose application is refused by the lower court to repeat it in the Court of Appeal before the transmission of the record of appeal from the lower court to the Court of Appeal. Although the court was dealing or referring to an application to stay execution of pending appeal, the court’s reasoning could mutatis mutandi apply to stay of proceedings pending appeal. The Court after referring to the settled practice in rule 21 of C.I 19 dealing with control of proceedings during the pendency of appeal held per our respected brother Pwamang JSC as follows: Page 10 of 14 “Our clear thinking on this matter is that, the practice has been so well settled that the revocation of rule 28 does not affect it since it was developed by the court on the back of its inherent powers independent of the Rule. In Footprint Solutions Ltd vs. Leo & Lee Co. Ltd. (supra) in the judgment of our brother referred to already he observed as follows: “In fact while rule 27A of C.I. 21 regulates the exercise by the Court of Appeal of its inherent jurisdiction, the exercise of the jurisdiction itself as the designation imports is innate to the court itself” Therefore, though rule 28 codified a settled practice of the courts, its revocation does not take away the right of an applicant whose application for stay of execution has been refused by the lower court to repeat same in the Court of Appeal if even the record of appeal has not yet been transmitted to the Court of Appeal” In our view therefore, notwithstanding the coming into force of the Court of Appeal (Amendment) Rules 2020 (C.I. 132), the settled practice remains that, when an application for stay of proceedings pending appeal has been lodged in the Court of Appeal against a decision or ruling, the lower court continues to have jurisdiction to hear all interlocutory applications including applications for stay of proceedings, against the decision appealed against until the record of appeal has been transmitted to the Court of Appeal. On the refusal of the application for stay of proceedings by the trial court, the application may be repeated at the Court of Appeal and the Court in the exercise of its inherent jurisdiction can entertain and determine the application as the record of appeal had not been transmitted from the lower court to the Court of Appeal. The learned Justices of the Court of Appeal in our respectful view fell in error when they ruled that they had no jurisdiction to hear and determine the instant repeat application for stay of proceedings by reason of C.I. 132. In the circumstances, we hereby allow the appeal and make an order remitting the case to the Court of Appeal to assume jurisdiction and to hear and determine the application for stay of proceedings on its merit. Ground (a) of the appeal succeeds. Ground (b) That the learned Justices erred in awarding costs against Page 11 of 14 the applicant as a consequence for dismissing the applicant’s repeat application for stay of proceedings pending appeal in so far as the grounds for the dismissal of the application is wrong in law. Counsel for the defendant in arguing this ground of appeal contended that the grounds for dismissing the repeat application is wrong in law and does not merit the award of costs of GH¢3000 against the defendant and same ought to be set aside. On the other hand, counsel for the defendant argued that the award was discretionary and there is no evidence on record that makes the award of costs by the Court of Appeal perverse or contrary to law. It is trite that costs follow the event and it is at the discretion of the court and like all discretions, it must be exercised judicially. In the case of SCOA Motors vs. Koranteng (1967) GLR 263 the purpose for the award of costs was stated as follows: “The real object of awarding costs is to recoup a plaintiff who has successfully established his right to maintain the litigation which he had commenced or the defendant who had been wrongly dragged to court and harassed with litigation” See also the case of Guardian Assurance Co. Ltd. vs. Khayat Trading Store (1972) 2 GLR 48 C.A where the trial court had awarded the plaintiff costs N¢1800 amounting to ten percent (10%) of the damages awarded. In discussing the factors to be considered in the award of costs the court held in holding 3 thereof as follows: “3) even though the award of costs is within the discretion of the judge, this discretion must be exercised reasonably. It appears from a glance at the record that the only yardstick applied was that the costs should be ten percent of the damages. If so, then there is a danger that applying such a yardstick to this question may cause grave injustice to the party adversely affected. Only two witnesses Page 12 of 14 appeared on either side, and the evidence of neither of them could be described as lengthy. No unnecessary adjournments were asked for or granted to the appellants. In the circumstances, the award of N¢1800 costs was unjustifiable” Order 74 of the High Court (Civil Procedure) Rules 2004 (C.I.47) dealing with costs provides as follows: “Subject to this Order, the costs of, and incidental, to proceedings in the Court shall be at the discretion of the Court and the Court shall have full powers to determine by whom and to what extent the costs are to be paid” In this case, the record shows that after dismissing the application for stay of proceedings pending the determination of the interlocutory appeal, the Court of Appeal awarded costs of GH¢3000.00 against the defendant (applicant at the Court of Appeal) in favour of the present plaintiff/Respondent/Respondent. Counsel for the defendant has not contended that the costs of (GH¢3000) Three Thousand Ghana Cedis awarded against him was excessive or that the Court of Appeal exercised its discretion wrongly. His contention is that the grounds for dismissing the repeat application is wrong in law and does not merit the award of costs against the appellant. We are of the view that whilst the Court of Appeal did not exercise its discretion wrongly, having allowed the appeal of the defendant/appellant/appellant, the costs of GH¢3000 awarded against it by the Court of Appeal ipso facto must be set aside Accordingly, ground (ii) of the appeal succeeds. (SGD) H. KWOFIE (JUSTICE OF THE SUPREME COURT) Page 13 of 14 (SGD) P. BAFFOE-BONNIE (JUSTICE OF THE SUPREME COURT) (SGD) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD) E. Y. GAEWU (JUSTICE OF THE SUPREME COURT) (SGD) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) COUNSEL OPOKU AMPONSAH ESQ. FOR THE DEFENDANT/APPELLANT/ APPELLANT. A. K. BANNERMAN WILLIAMS (JNR) ESQ. FOR THE PLAINTIFF/RESPONDENT /RESPONDENT WITH HIM, TEYE MENSAH ADDICO. Page 14 of 14