MOTION ON NOTICE FOR AN ORDER TERMINATING THE INSTANT ACTION FOLLOWING THE DETERMINATION OF THE SOLE OUTSTANDING ISSUE IN THE RULING OF THIS COURT DATED 22ND DECEMEBR 2020.
This is a motion on notice for an order terminating the instant action following the determination of the sole outstanding issue in the ruling of this court dated 22nd December 2020. This motion was filed on 1st July 2022.
I have read through the Motion Paper, the Affidavit in Support and attached Exhibits; as well as the Affidavit in Opposition and the Exhibits annexed thereto.
Careful consideration has also been given to the submissions of both Counsel in moving and in opposing the instant application.
This Court has further carefully studied the Amended Writ of Summons and Statement of Claim filed on 11th November 2021 and the reliefs being sought therein, the Amended Statement of Defence and Counterclaim which was filed on 17th February 2022 as well as the Defence to Counterclaim which was filed on 23rd February 2022.
This Court is however not minded to grant the instant application. This is because the Court of Appeal before which the appeal against the decision of this Court dated 22nd December 2020 has been lodged has no original jurisdiction. It only has only appellate jurisdiction. See section 11(1) of the Courts Act 1993 (Act 459).
The appeal lodged in the Court of Appeal is an appeal arising from an interlocutory application; and not from a final judgment.
The determination of the interlocutory matter before the Court of Appeal therefore cannot have the effect of dismissing the substantive action at the Trial Court.
If that were to be so, the decision of the Court of Appeal would have no foundation because the suit from which the appeal emanated would have been terminated; a clear instance of placing something on nothing and expecting it to stand as Lord Denning stated in the English case of Mcfoy v United Africa Co. Ltd [1961] 3 All ER 1169, PC.
This same principle was applied in the case of Mosi v Bagyina [1963] 1 GLR 337.
Should the Court of Appeal pronounce that the Defendant’s claims for a tax refund is unlawful, the parties can go to the Trial Court to properly terminate the action.
If the Court of Appeal refuses to set aside the Trial Court’s decision, the parties would have to go back to the said Trial Court for the determination of the issue of Defendant’s claims for tax refund.
Furthermore, a party that is dissatisfied with the decision of the Court
