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BENIN, JSC:-
The application before us raises a very small issue which should not have travelled this far if the rules of this court had been properly appreciated as we shall shortly demonstrate. The issue is whether a party who has appealed to this court following a dismissal of his appeal by the Court of Appeal should make an application for a stay of execution to the High Court from which the case originally emanated.
The facts are not in dispute. The plaintiff, applicant herein, obtained a default judgment against the defendant Bank of Ghana, interested party herein. The defendant applied to the High Court to set aside the default judgment but the court refused the application. The defendant then appealed against the refusal to set aside to the Court of Appeal. At the same time the defendant invoked the supervisory jurisdiction of this court to vacate the default judgment dated 12th July 2012. In a reasoned ruling delivered on 10th April 2013, this court rejected the application for certiorari, but made an order staying execution of the said judgment pending the hearing and determination of the appeal then pending before the Court of Appeal.
The present record shows that the Court of Appeal has since heard and dismissed the appeal. Following the dismissal of the appeal the defendant went back to the High Court and filed an application for a stay of execution and for an order to set aside the default judgment. It is to prevent the High Court from hearing the application that the plaintiff, applicant herein, has brought this application invoking this court’s supervisory jurisdiction by way of an order of prohibition against the High Court.The ground for the application is this:
‘The High Court Judge is completely ‘functus officio’….and therefore legally lacks jurisdiction pursuant to Rule 21 of the Court of Appeal Rules, 1996 (C.I. 19) to entertain the Interested Party’s repeated motion for stay of execution and for a further order setting aside the substantive default judgment of the High Court dated the 16th day of July 2012 when the Supreme Court…….had previously granted a stay of execution of the same judgment of the High Court pending the final determination of the Interested Party’s appeal at the Court of Appeal and the Court of Appeal had heard the said appeal and had unanimously and finally dismissed the appeal upon determination.’
The issue of setting aside the default judgment has been dealt with by both the High Court and the Court of App