STEPHEN COFIE v. MRS FELICIA ACHEAMPONG
2015
COURT OF APPEAL
GHANA
CORAM
- HER LADYSHIP JUSTICE CECILIA H. SOWAH, J. A. SITTING
Areas of Law
- Civil Procedure
- Equity and Trusts
2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The court dismissed the application for an interlocutory injunction filed on 26th June 2015, finding it without merit and an abuse of process. Previously similar applications for Stay of Execution had been dismissed. The court clarified its jurisdiction is not negated by prior dismissals, and emphasized that a trial judge is functus officio after final judgment except for specific permitted applications like Stay of Execution. Challenging a judgment properly requires filing an appeal. The court found that the injunctive remedy is available only in cases of legal or equitable rights and ruled that the appellant could not assert a right superior to the respondent's in this instance.
The present application for an order of Interlocutory injunction was filed on 26th June 2015 and is opposed by the plaintiff/respondent/respondent as being incompetent and constituting an abuse of process. One of the respondent’s arguments appears to be based on the fact that two previous applications for Stay of Execution to the trial court and the repeat application to this court were both dismissed, but this application has been brought which is essentially the same and is therefore an abuse of process. Counsel also contends that the application is not sanctioned by the rules of court. Furthermore, there has been no lapse by the trial court to warrant this present application. Merchant Bank vs. Similar Ways Ltd [2012] 1 SCGLR 440 distinguished.
Having read the processes filed, listened to both counsel and carefully considered their arguments, my view is that the application cannot be said to be incompetent on jurisdictional grounds merely because a Stay of execution was earlier dismissed by this court. The Respondent does not deny the fact deposed to by the applicant that Civil Form 6 dated 16th June 2015 issued after 8th June 2015 when this court dismissed the application for stay of execution. Thus by virtue of Rule 21 of C.I.19, this court is seized with jurisdiction to consider the present application.
That said, the important issue is whether this application has merit or is an abuse of process.
I believe that the applicable Rule to resolve this issue is Rule 31 which sets out the general powers of the Court of Appeal. Rule 31(e) provides that this court may “make an interim order or grant an injunction which the Court below is authorised to make or grant”.
The question therefore is whether the court below is authorized to grant an interlocutory injunction of its final judgment. The answer has to be “No”. The general principle is that a trial judge becomes functus officio after final judgment is delivered except for applications like Stay of execution which are specifically permitted by the Rules.
I agree with the submissions of Respondents’ counsel that the proper procedure to challenge a judgment is to file an appeal, and if it is necessary to prevent the successful party from enforcing any order, it is by an application for Stay of execution which is granted on settled principles different from the principles on which an application for interlocutory injunction are considered and granted.
If the trial court cannot injunct its own final j