LABONE WEAVERS ENTERPRISES LTD. vs. BANK OF GHANA [1977]DLHC1348

Date	1977-03-18
Suit No.
Citation No.	[1977]DLHC1348

EDUSEI J.

NII ODOI ANNAN FOR THE APPLICANTS.

DR. K. DATE-BAH FOR THE RESPONDENTS.

[1977]DLHC1348
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													<main id="main" class="content" style="min-height: 60rem" >LABONE WEAVERS ENTERPRISES LTD. <o:p></o:p>vs. <o:p></o:p>BANK OF GHANA <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1977] 2 GLR 156<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
18 MARCH 1977<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

NII ODOI ANNAN FOR THE APPLICANTS.<o:p></o:p>

DR. K. DATE-BAH FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

EDUSEI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDUSEI J.<o:p></o:p>The
defendants, judgment debtors herein, have applied to this court for a stay of
execution and payment of the judgment debt by instalments. Counsel for the
plaintiffs, judgment creditors, Dr. Date-Bah, has raised an objection to the
propriety of the application on two grounds, namely: (a) that this court has no
jurisdiction to entertain the application but rather it is the Court of Appeal
that has jurisdiction since it was the latter court that dismissed the appeal
lodged by the defendants, judgment debtors, and (b) that Aboagye J. in a ruling
ordered the registrar of the High Court not to accept any papers for filing
from the judgment debtors herein, and therefore the present application filed
by them is in breach of the court’s order, and it cannot therefore be
entertained by this court.<o:p></o:p><o:p>&nbsp;</o:p>I will
deal with the order of Aboagye J. first. The question to ask is this—was
Aboagye J. justified in law in making the order he made, an order that
precluded any person, natural or legal, from coming to court to vindicate his
or its right? I am of the view that every person has an unimpeded access to the
law courts of this country, and this basic and fundamental right can only be
taken away by express provision of a Decree or an Act of Parliament if that Act
does not run counter to any provisions of the Constitution that the country may
have. The only provision that can be employed to prevent a person from coming
to court to vindicate his rights is stated in section 69 of the Courts Act,
1971 (Act 372), and this section runs as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“69. If,
on an application made by the Attorney-General, the High Court is satisfied
that any person has habitually and persistently and without any reasonable
ground instituted vexatious legal proceedings in any Court, and whether against
the same person or against different persons, the High Court may after hearing
that person or giving him an opportunity of being heard, order that no legal
proceedings shall, without the leave of the High Court or a Judge thereof be
instituted by him in any Court, and such leave shall not be given unless the
High Court or Judge is satisfied that the proceedings are not an abuse of the
process of the Court and that there is prima facie ground for the proceedings.”<o:p></o:p><o:p>&nbsp;</o:p>There is
no evidence before me that Aboagye J. considered any application from the
Attorney-General before making his order. There is not even an oblique
reference to this matter in the affidavit evidence of the Bank of Ghana, the
respondents herein. And indeed the High Court in considering the Attorney-General’s
application, if any, must be satisfied that the person proceeded against “has
habitually and persistently and without any reasonable ground instituted
vexatious legal proceedings in any Court.” This provision that gives power to
the High Court to bar a person from a court of law must be strictly and
jealously guarded in order to maintain the elementary and basic right of every
person of his free access to the law court for the ventilation of his
grievances. For any court to prevent any person from coming to the court
without due consideration of the provisions of section 69 of Act 372 would be
doing that person a great harm or injustice and a senses of injustice is a
grievous thing. This would be unthinkable in our courts, and even so at this
time when the present military administration has on a number of occasions
expressed its abiding faith in the rule of law. I think that the attention of
Aboagye J. was not directed to section 69 of the Courts Act, 1971. His order
therefore was given per incuriam and this court can rightly ignore it. This
ground of Dr. Date-Bah therefore fails.<o:p></o:p><o:p>&nbsp;</o:p>I now
come to consider the other ground—that the proper forum for the application is
the Court of Appeal and not the High Court. Where an appeal is pending in the Court
of Appeal the proper forum to consider applications is the Court of Appeal: see
rule 21 of the Court of Appeal Rules, 1962 (L.I. 218). See also my decision in
Nyaasemhwe v. Afibiyesan [1975] 2 G.L.R. 448. But where the Court of Appeal has
dismissed an appeal it is tantamount to confirming the judgment of the trial
court—High Court or circuit court. Rule 36 of the Court of Appeal Rules, 1962,
however, states:<o:p></o:p>“When the
Court directs any judgment to be enforced by another Court, a certificate under
the seal of the Court and the hand of the presiding Judge setting forth the
judgment shall be transmitted by the Regi</main>