MOST REV. DR. ROBERT ABOAGYE-MENSAH & 3 ORS v YAW BOAKYE
2022
SUPREME COURT
CORAM
- DORDZIE J.S.C. (PRESIDING) AMEGATCHER J.S.C. OWUSU J.S.C
Areas of Law
- Civil Procedure
- Evidence Law
- Property and Real Estate Law
- Contract Law
2022
SUPREME COURT
CORAM
AI Generated Summary
This Supreme Court decision, authored by Amegatcher JSC with Dordzie JSC (presiding) and Owusu JSC concurring, addresses an Article 134(b) motion by the applicant to discharge or reverse a single Justice’s 2014 adoption of the parties’ consent judgment. The consent judgment stemmed from a settlement during a pending appeal, granting the applicant a 15-year sub-lease of shop number 3 at the Airport Shopping Centre (Liberation Road, Accra) and imposing monthly rent of the cedi equivalent of USD 35,000, which he later defaulted. The applicant argued the Supreme Court lacked jurisdiction because the Record of Appeal had not been transmitted. The Court rejected this, relying on official Form 6 dispatch dated 26 November 2013 and Evidence Act presumptions. It held that, even without a specific time limit in the Rules, Article 134(b) applications must be made within a reasonable time; seven years was unreasonable. Finding abuse of process in serial applications, the Court restrained further filings to frustrate execution, granted the respondent leave to enforce, and awarded GHC 15,000 costs payable personally by applicant’s counsel.
AMEGATCHER JSC:-
The applicant in this motion is invoking this court’s review jurisdiction under Article 134(b) of the Constitution, 1992. The application seeks to discharge or reverse the order of a single Justice of this Court dated 12th November 2014. The basis for the application as captured in the affidavit of Yaw Boakye in support of the motion is that the record of proceedings was
not transmitted to the Supreme Court in accordance with C.I. 16 and, because the Supreme Court was not seized of the appeal, the single Justice had no jurisdiction to hear the application and enter the consent judgment. In his view, the orders made by the single Justice were, thus, a nullity and all proceedings and processes flowing from the consent judgment were, as well, all nullities including the garnishee nisi order issued against FBN Bank and the order for recovery of possession of shop no 3 Liberation Road, Airport Shopping Centre.
To appreciate the basis for this application and its merit, we would delve into events that brought the parties back into this court.
This case has had a chequered history in the courts. It started in the High Court, Accra in 2008, went on appeal to the Court of Appeal and finally ended in another appeal to this Court on 19th July 2011. While the appeal to this Court was pending, the parties voluntarily reached an agreement to resolve the appeal. They filed terms of settlement for entry as a consent judgment. On 11th September 2014, the applicant herein applied by motion on notice praying this court to adopt the terms filed as consent judgment under the inherent jurisdiction of the court. Paragraphs 9, 10, 11 and 12 of the affidavit in support are instructive. We reproduce them verbatim as follows:
9. That pursuant to negotiations intended to achieve an amicable settlement of the issues joined in the Appeal and all consequential
matters, the parties have resolved this suit amicably on the terms contained in the Terms of Settlement as filed in the registry of this Court on 11th September 2014.
10. That I am advised by Counsel and verily believe same to be true that, if the parties had to abide with the rules of this Honourable Court to mature the matter for hearing, it will occasion needless expense, hardship and delay.
11. That I am advised by Counsel and verily believe same to be true that per clause (A)11 of the said Terms of Settlement filed in the registry of this Court on 11th September 2014, the parties herein agreed to h