March 11, 2009
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Atuguba JSC (presiding) and Date-Bah JSC, granted Ghana Cocoa Board’s application for certiorari, quashing High Court, Cape Coast orders made on 10 and 17 September 2008 in litigation brought by Nana Kwaku Apotoi III against the Attorney-General and Ghana Cocoa Board. The Court held that the Court of Appeal’s stay of execution (20 January 2007) remained in force because the applicant had complied with its conditions and the “urge” clause was merely exhortatory; record preparation lies with the Registry. The High Court’s garnishee proceedings against Ghana Cocoa Board’s National Investment Bank account were thus without jurisdiction and a nullity. The Court also held that the parties’ 2007 terms of settlement were too vague—deferring permanent transfer pending a valuation—and did not supersede the judgment or appeal. Finally, the Court affirmed that appeal and certiorari are not mutually exclusive and exercised its supervisory jurisdiction to quash the orders.
R U L I N G
ATUGUBA, J.S.C:
The facts of this matter have been masterly related by my able brother Dr.
Date-Bah J.S.C. and I would repeat them only where necessary.
This application is “for an Order of Certiorari to quash the decisions of the High Court, Cape Coast, presided over by His Lordship V.G.K AYIMEY given on the 10th September, 2008 and 17th September, 2008 in the matter NANA KWAKU APOTOI III VRS. THE ATORNEY GENERAL AND GHANA COCOA BOARD, SUIT NO. L 48/2002”
The applicant further states that “the grounds for this application are as follows:-
That the High Court Cape Coast had no jurisdiction to hear an application for and grant an order of garnishee against the Applicant when there was an order for Stay of Execution by the Court of Appeal in force at the time.
That the orders of the High Court Cape Coast, directing the Manager of National Investment Bank, Head Office, to pay GH¢1,100,000.00 OUT OF Applicant’s account to the interested party was made without jurisdiction since there was a valid order for stay of execution from the Court of Appeal in force at the time.
That the High Court, Cape Coast, had no jurisdiction to make an order awarding interest to the interested party, on the judgment debt against which there was a valid order for Stay of Execution from the Court of Appeal”
Two important issues fall to be addressed in order to determine this application. The first is whether at the time the impugned orders of V.G.K. Ayimey J. were made there was an order of Stay of Execution made by the Court of Appeal. The second is whether the stay of execution, if any, was superseded by a mutual agreement of the parties.
The Stay of Execution by the Court of Appeal
There was a stay of execution by the Court of Appeal of the trial court’s judgment. It is dated 20/1/2007 and is in these terms:
“BY COURT:- We have carefully given thought to the arguments of both counsel in this application and it is our considered decision that the application be granted subject to conditions. We therefore order that the applicant pay within twenty one days from today all that is outstanding of the Costs awarded in the trial Court. Consequent upon the said payment, the judgment and orders of the trial Court are hereby stayed pending the appeal herein. Further more we take cognizance of the fact that execution is already in process. We order therefore that execution should stop and all that has been done so far, including the attachment be reversed forthwith.