ABRAHAM KWASI SERBEH & 4 ORS vrs KWAME APPIAH & 3 ORS

In their submissions on the application by plaintiffs/appellants/applicants for stay of execution yesterday, counsel on both sides, but in particular counsel for defendants/respondents/respondents, treated us to an array of precedents of the Supreme Court on the subject of stay of execution. Notable among the cases urged on us is Ogyeadom Obranu Kwasi Atta VI vs Ghana Telecommunications Company Ltd Civil Appeal No. J8/131/2019, dated 28 April 2020. This case centered on applications to the Supreme Court to Stay Court of Appeal decisions which are largely non-executable.

After deprecating some of its own decisions which closed or narrowed the path of orders of stay of execution in respect of Court of Appeal decisions, the Court decided essent.,ially that, (a) the Supreme Court when faced with a non-executable decision of a Court of Appeal based on an executable High Court decision, may deploy its residual powers in Article 129(4) of the 1992 Constitution to assume the powers of the trial High Court to stay the decision; or (b) may stay execution of the Court of Appeal decision on the basis that since it is based on an executable High Court decision, it is in substance executable. The Supreme Court did not address head on the issue of Court of Appeal decisions based on declaratory judgments of the High Court which were traditionally classified non-executable.

That is when the decision in Lithur vs Lithur Civil Appeal No. J4/01/2021 dated 21 April 2021 comes in. Lithur vs Lithur was decided after the Ghana Telecommunications Co. case and actually cited that case. Lithur vs Lithur confronted declaratory judgments and the issue of their executability or otherwise. In the Lithur case, Dotse JSC held that

“… The reliance on earlier decisions of this Court on the principle that a judgment that is declaratory cannot be stayed is no longer good law”

His Lordship continued as follows:

“In appropriate circumstances such as has been amply exhibited in the instant case, this Court was clear in its decision that, henceforth, it may stay execution of decisions which appear not to be executable but in real terms achieve executable inevitabilities”

It is therefore not fully accurate, as contended by counsel for defendants/respondents/respondents, that a declaratory Judgment which is usually non-executable is not capable of being stayed. The Court does not restrict itself to the form of the Judgment or decision. It looks at its substance an