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July 21, 2023
HIGH COURT
GHANA
CORAM
On 28th February, 2023 when Counsel for the Applicant sought to move an application for stay of proceedings filed on 10th November, 2022, Counsel for the 2nd Defendant/3rd Respondent raised a preliminary legal objection anchored on three legs as follows:
“1. The Applicant is not a party to this action.
2. An Application for Stay of Proceedings can only be anchored on a pending appeal and there is no appeal in this matter.
3. It is only the Appellate Court which can hear and determine an Application for Stay of Proceedings. This is the Trial Court not an Appeal Court in this matter.”
Upon hearing the viva voca submission regarding the preliminary legal objection and upon reading the Written Submission of Counsel for the Applicant, filed with leave of the Court, it is my respectful view that the preliminary legal objection is flawed, misplaced and not maintainable for the following reasons:
Firstly, an Applicant need not be a party to file an application in a pending action. The filing of a motion by a “stranger” to a litigation is a valid procedure, where the “stranger” serves the application on the parties to the pending litigation. See GBAGO v. OWUSU [1972] 2 GLR 252 and LAMPTEY V. HAMMOND [1987-88] 1 GLR 327.
Secondly, it is contended that there is a matter pending before the Court of Appeal in respect of the same subject matter and all the parties to the instant action (including the applicants but excluding the 3rd Defendant (the Lands Commission) who, as nominal Defendants, have no legal interest at stake).
Finally, on the objection grounded on the submission that it is only the Appellate Court which can hear and determine an application for stay of proceedings, with the greatest respect to the learned Counsel, that is not the position of the law. See the case popularly referred to as “ORIGIN 8”.
For the above stated reasons, the preliminary legal objection is dismissed as misplaced and not maintainable. I award cost of GH¢5,000.00 in favour of the Applicant against 2nd Defendant/3rd Respondent. Suit is adjourned with the kind approbation of Counsel in this matter to 18th October, 2023 at 11:00 a.m.
(SGD.)
AMOS WUNTAH WUNI (J)
JUSTICE OF THE HIGH COURT
AI Generated Summary
On 28 February 2023, while counsel for the applicant sought to move a stay-of-proceedings application filed on 10 November 2022 in the High Court, counsel for the 2nd Defendant/3rd Respondent interposed a preliminary objection with three grounds: that the applicant was not a party to the action, that such a stay could only be anchored on a pending appeal and none existed, and that only an appellate court could entertain the motion. Justice Amos Wuntah Wuni dismissed the objection. He relied on Ghanaian authorities (Gbago v. Owusu; Lamptey v. Hammond) to affirm that a “stranger” may file motions served on parties, noted that a related matter was pending in the Court of Appeal involving the parties (with the Lands Commission as a nominal defendant), and rejected the notion that only appellate courts may hear a stay application, referencing the “Origin 8” case. The court awarded GH2,000 costs to the applicant and adjourned the suit.