THE REPUBLIC v. THE HIGH COURT, CAPE COAST EX PARTE: GHANA COCOA BOARD
March 11, 2009
SUPREME COURT
CORAM
- WOOD(MRS), CJ (PRESIDING)
- BROBBEY, JSC
- DOTSE, JSC
- ANIN YEBOAH, JSC
- BAFFOE-BONNIE, JSC
Areas of Law
- Civil Procedure
March 11, 2009
SUPREME COURT
CORAM
AI Generated Summary
The Supreme Court, per Anin Yeboah JSC, considered an application by Double Crown Investment Ltd seeking to invoke supervisory jurisdiction to quash a High Court, Commercial Division order dated 30/10/2008. In suit BDC 31/07 between Granada Hotel Ltd and Double Crown, a consent judgment required payment of USD 1,950,000 plus interest and GH250,000 costs in installments with a default clause. After Double Crown defaulted, Justice Kwofie, as vacation judge, granted stay of execution and set two installment dates, staying attachment. Granada perceived ambiguity and attempted review, which Justice Tanko Amadu refused under Order 42 Rule 4 but invited a variation application. He then granted variation affirming the two payment dates and refused a self-help execution clause. Distinguishing RE GM Holdings and Ghana National Trading Corp v Baiden, the Supreme Court held no wrongful assumption of jurisdiction and dismissed the certiorari application.
ANIN YEBOAH, JSC:-
The applicant herein is by this application invoking the supervisory jurisdiction of this court to quash an order of the High Court, commercial Division, Accra, dated the 30/10/08. The facts leading to this application do not appear to be in controversy and could be deduced from the exhibits and the affidavits filed in this application. The applicant was a defendant in
suit № BDC 31/07:
GRANADA HOTEL LTD
VS.
DOUBLE CROWN INVESTMENT LTD.
The applicant , by a consent judgment dated the 30/07/2008 was adjudged to pay to the interested party (plaintiff) in the said case an amount of $1,950,000 together with interest and cost of GH¢250,000. In the judgment after trial to enforce the judgment, it appears that the judgment debt and costs were to be paid by installments with the usual default clause permitting the interested party herein (as the judgment /creditor) to proceed to levy execution upon default on the part of the applicant herein. The applicant defaulted and when the interested party commenced execution processes, the applicant on the 15/09/2008 filed an application to stay execution and payment for the judgment debt by installments. When the application was argued before His Lordship Mr. Justice Kwofie, he on the 26/10/2008 granted the application as prayed for, in the following terms;
“BY COURT: The motion on notice for stay of execution and payment by installment is granted as prayed. The outstanding judgment debt shall be paid in 2 installments as proposed in the affidavit in support subject to the usual default clause. The attachment of the property is therefore stayed forthwith.”
From the record before this court, Justice Kwofie who granted the application for stay of execution and payment by installments sat on the matter as a vacation judge. The interested party thought that there was an ambiguity in the order as regard the default clause which ought to be clarified. They filed a motion for review which was fixed for hearing on 17/10/2008. When the motion was listed, Mr. Justice Kwofie had proceeded on leave so it was placed before Mr. Justice Tanko Amadu. The learned judge had some misgivings about the propriety of the application and made this formal order:
“BY COURT: the court is unable to entertain the application by reason of the provisions of Order 42 Rule 4 of the Rules of Court. Counsel may withdraw the application and come by way of variation. The application for review is struck out as having been withdrawn