THE REPUBLIC v. DR NII KOTEI DZANI & ORS, EX PARTE: PROF COLLINS FOSU
2019
HIGH COURT
GHANA
CORAM
- DR. RICHMOND OSEI-HWERE, J
Areas of Law
- Civil Procedure
- Criminal Law and Procedure
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Respondents sought a stay of contempt proceedings after their preliminary objection was overruled. They argued that the risk of imprisonment made it essential for the Court of Appeal to first determine their objection, otherwise any success on appeal would be rendered nugatory. The Applicant opposed, contending the appeal lacked prospects, the stay sought to stultify the contempt matter, and the motion was incompetent because it was filed by Prosper Nyahe rather than the lawyer of record, Archie Danso. Applying Garrett v Garrett and R T Briscoe, the court held stays are discretionary, reserved for exceptional circumstances, and require demonstration of special circumstances and strong appeal prospects. Distinguishing Tindana, the court ruled that Order 75 rule 3 governs representation in this court, making the motion incompetent. The application was dismissed with costs of GHC 3,000 against Respondents.
RULING
This is an application for stay of proceedings in respect of the instant contempt application pending before this court.
On 31st May, 2019 during the hearing of the contempt application, counsel for the respondents, Archie Danso Esq. raised a preliminary legal objection against the propriety of the contempt application. After hearing both counsel the court overruled the preliminary legal objection on that ground that “Counsel's submissions are with all intents and purposes, a defence to the substantive allegation and that does not in any shape or form pass the test of a preliminary legal argument that can bring the application to a halt.”
Aggrieved by the decision of the court, the Respondents/Applicants (hereinafter called Respondents) have appealed against the decision of the court per a Notice of Appeal filed on 12/06/2019. On the same day the Respondents filed a Motion on Notice for stay of proceedings pending the determination of the appeal.
The main ground of the application is that since this is a contempt proceeding and there is the possibility of imprisonment resulting from it. It is necessary that the Court of Appeal determines their objection else their possible incarceration will render the success of the appeal nugatory. Counsel for the Respondents cited the case of Ghana National Trading Corporation v Baiden (1987/88) 2GLR 163, Holding 3 and argued that the danger of the Respondents suffering injustice if the proceeding is not stayed constitutes a special circumstance which warrants the grant of stay of proceedings.
The Applicant/Respondent (hereinafter called the Applicant) is opposed to the application. It has demonstrated the basis of his opposition in an affidavit in opposition to the motion filed on 14/06/2019. It is Applicant’s contention that the appeal is not likely to succeed and that the instant application is aimed at stultifying the hearing of the contempt application. The Respondent also contends that the application is incompetent not having been filed by the Lawyer on record who at all times material has been Archie Martin Danso (Jnr) Esq. of Archie Danso & Associates rather than the present Lawyer who practices from an entirely different law firm. Counsel for the Applicant submitted that the matter before this court is the contempt application and that the said Prosper Nyahe Esq. who has filed the instant application is not known to this court and in this matter.
On the substantive application, counsel for the App