VANDERPUIJE v. AKWEI

JUDGMENT OF HAYFRON-BENJAMIN J.

This is an application against an order of this court that the proceedings in this case should be continued notwithstanding an appeal by the plaintiff to the Court of Appeal from a ruling of this court dismissing an application by him for judgment on alleged admissions by the defendant.

Rule 27 of the Supreme Court Rules, 1962 (L.I. 218), as amended by the Court of Appeal (Amendment) Rules, 1969 (L.I. 618), provides that an appeal against any judgment or decision shall operate as a stay of execution or of proceedings under the judgment or decision appealed from except so far as the court below or the court may otherwise order.

This legislative instrument came into force at a time when appeals against interlocutory judgments and orders were by special leave, and the High Court therefore had some control over appeals in such matters, and consequently some control over proceedings pending before them. With the coming into force of the Constitution, 1969, the position, it is suggested, has altered considerably. Article 110 (2) of the Constitution provides that, "Save as otherwise provided in this Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court of Justice to the Court of Appeal in any cause or matter determined by the High Court of Justice." By article 172 of the Constitution a judgment includes an order or decree.

[p.245]

The matters for initial consideration here are (a) whether the ruling appealed against was made in a cause or matter determined by this court or merely a ruling made in a cause or matter pending in this court for determination; (b) if it is a ruling made in a cause determined by this court, whether it is a judgment or decision so as to come within the provisions of the Court of Appeal (Amendment) Rules, 1969 (L.I. 618), or is merely an order, and (c) whether an interlocutory appeal operates as a stay of proceedings of the whole substantive case, or merely proceedings under the decision itself, e.g. where there is a grant of interim injunction and an appeal is lodged against that order, whether the whole trial comes to a halt or only proceedings and court processes under that decision granting the interim injunction. Order 1, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), defines "cause" as including any action, suit or other original proceedings between plaintiff and defendant and "matter" as including every proceeding in cou