GARRETT v. GARRETT

JUDGMENT OF ADJABENG JA.

By the suit numbered 1190/89, the plaintiff-respondent, the husband, took action against the defendant-applicant, the wife, in the High Court, Accra - laying claim to real property owned by the couple in Ghana. The plaintiff-husband had in fact been declared bankrupt in England in 1985, ie before the commencement in 1989 of the action in the High Court, Accra. After the institution of that action, the applicant herein filed a motion praying the court to strike out the respondent's writ of summons and the pleadings. Her ground was that the respondent "who was an undischarged bankrupt when he initiated these proceedings, had as a matter of law no capacity to litigate over properties that were subject to the receiving order in bankruptcy." The effect of that application would, in my view, be that if it succeeded that would be the end of the action. The application however failed. In other words, the trial judge refused to grant it and to strike out the action. Dissatisfied with the trial court's refusal, the applicant appealed to this court against the refusal of the trial court to strike out the action. The applicant then applied to the trial court for an order staying proceedings in the action pending [p.176] the determination of the appeal to this court as to whether the trial court was right in refusing to strike out the respondent's action. That application was also dismissed. The applicant then filed the present application before us, which is a repetition of his last one before the trial court, asking us to order a stay of proceedings in the trial court pending the determination of the appeal. The ground upon which this application is based is contained in paragraph (5) of the affidavit in support of the application. It reads:

"5 That it is my respectful contention that if the proceedings before this court (i.e. High Court) are not stayed and the petitioner-applicant is successful on appeal it will render the entire proceedings in this court a nullity, especially as the issue to be determined on appeal goes to the competence of the respondent to issue a writ."

At the hearing of the application before us, counsel for the respondent, Mr. Kom, raised a preliminary objection. He contends that the application is, in his own words, "in law misconceived as being premature." This is because, according to counsel, the application violates rule 21 of the Court of Appeal Rules, 1962 (LI 218) as an appeal has not been entered in this