REPUBLIC v. ASHANTI REGIONAL HOUSE OF CHIEFS; EX PARTE KODUAH III AND OTHERS
1989
COURT OF APPEAL
GHANA
CORAM
- AMPIAH
- LAMPTEY
- ESSIEM JJ.A
Areas of Law
- Civil Procedure
- Administrative Law
1989
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Ampiah J.A., considered an application by the appellant-applicants to stay proceedings in a chieftaincy tribunal of the Ashanti Regional House of Chiefs while their appeal from the High Court’s refusal of prohibition was pending. The prohibition sought to halt judgment in "Nana Osei Kodua III and Others v. Barima Asumadu-Sekyi II, Kumawuhene," asserting the tribunal’s unlawful composition, lack of jurisdiction, and bias. Ampiah J.A. held that rule 31 of the Court of Appeal Rules, 1962 (L.I. 218) did not apply because the appeal had not come before the Court and the interim orders contemplated are those the court below may make. Turning to rule 27(1)(b) (as amended by L.I. 1002), the Court adopted the Supreme Court’s reading in Takyi v. Ghassoub: “stay of execution” concerns execution processes only. As the High Court merely refused prohibition and made no executable order, there were no proceedings to stay. The Court of Appeal, not being a first-instance or appellate body for chieftaincy matters, dismissed the application. Lamptey J.A. and Essiem J.A. concurred.
JUDGMENT OF AMPIAH J.A.
On 17 November 1988, the appellant-applicants herein applied to the High Court, Kumasi for the issuance of a writ of prohibition to prohibit the judicial committee of the Ashanti Regional House of Chiefs from proceeding to give judgment in the case "Nana Osei Kodua III and Others v. Barima Asumadu-Sekyi II, Kumawuhene.” This was after leave had been granted him earlier. The applicants' complaint against the judicial committee was that the committee as constituted was unlawful and therefore had no jurisdiction to deliver an intended judgment, and also that there was a likelihood of bias. On 29 May 1989 the High Court refused the application. The applicants filed an appeal against the ruling. On 30 May 1989 the applicants filed a motion in the High Court for "a stay of proceedings in the chieftaincy tribunal relating to the above-matter pending the hearing and determination by the Court of Appeal of the appeal filed . . ." On 15 August 1989 the court refused to stay the proceedings. The instant [p.438] application is a repetition of the application for a stay of proceedings. The respondents oppose the application.
This application, we are told, is brought under the Court of Appeal Rules, 1962 (L.I. 218), rr. 27(1) (b) and 31 as amended by the Court of Appeal (Amendment) Rules, 1975 (L.I. 1002). Rule 31 of L.I. 218 provides:
“31. The Court may from time to time make any order necessary for determining the real question in controversy in the appeal, . . . and may make any interim order or grant any injunction which the Court below is authorised to make or grant. . .”
(The emphasis is mine.) It is quite clear that the application before us cannot fall within the ambit of rule 31 of L.I. 218. The appeal itself has not come to this court. Neither does the application for stay of proceedings fall under the interim orders that the court can properly make under the rule. What the applicant could do is to bring his application within rule 27 (1) (b) of L.I. 1002, which states:
“27. (1) An appeal shall not operate as a stay of execution of proceedings under the judgment or decision appealed from except where the Court below or the Court otherwise orders — . .
(b) in the case of the Court, upon application made to it by motion on notice . .”
(The emphasis is mine.) In Takyi v. Ghassoub (Ghana) Ltd. [1987-88] 2 G.L.R. 452, S.C. the court held, inter alia, that "a stay of execution of proceedings under the judgment or decision" can only