GARRETT vs. GARRETT [1991]DLCA2236

Date	1991-06-06
Suit No.
Citation No.	[1991]DLCA2236

ESSIEM JA

OFORI-BOATENG JA

ADJABENG JJA

NANA AKUFO-ADDO (WITH HIM ADDISON) FOR THE APPLICANT.

ENOCH KOM SAG (WITH HIM KUADA) FOR THE RESPONDENT.

[EDITORIAL NOTE. DECISION GIVEN PER INCURIAM WITHOUT REFERENCE TO THE SUPREME COURT’S DECISION IN TAKYI V GHASSOUB (GHANA) LTD. [1987-88] GLRD 92. SEE ALSO A CONTRARY DECISION IN REPUBLIC V ASHANTI REGIONAL HOUSE OF CHIEFS; EX PARTE KODUAH III [1989-90] GLRD 46].

[1991]DLCA2236
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													<main id="main" class="content" style="min-height: 60rem" >GARRETT<o:p></o:p>vs.<o:p></o:p>GARRETT<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 174<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">

</div>COUNSEL:<o:p></o:p>NANA
AKUFO-ADDO (WITH HIM ADDISON) FOR THE APPLICANT.<o:p></o:p>ENOCH
KOM, SAG (WITH HIM KUADA) FOR THE RESPONDENT.<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">

[EDITORIAL
NOTE. DECISION GIVEN PER INCURIAM WITHOUT REFERENCE TO THE SUPREME COURT’S
DECISION IN TAKYI V GHASSOUB (GHANA) LTD. [1987-88] GLRD 92. SEE ALSO A
CONTRARY DECISION IN REPUBLIC V ASHANTI REGIONAL HOUSE OF CHIEFS; EX PARTE
KODUAH III [1989-90] GLRD 46]. <o:p></o:p>

</div>JUDGMENT
OF ADJABENG JA.<o:p></o:p>By the
suit numbered 1190/89, the plaintiff-respondent, the husband, took action
against the defendant-applicant, the wife, in the High Court, Accra - laying
claim to real property owned by the couple in Ghana. The plaintiff-husband had
in fact been declared bankrupt in England in 1985, ie before the commencement
in 1989 of the action in the High Court, Accra. After the institution of that
action, the applicant herein filed a motion praying the court to strike out the
respondent’s writ of summons and the pleadings. Her ground was that the
respondent “who was an undischarged bankrupt when he initiated these
proceedings, had as a matter of law no capacity to litigate over properties
that were subject to the receiving order in bankruptcy.” The effect of that
application would, in my view, be that if it succeeded that would be the end of
the action. The application however failed. In other words, the trial judge
refused to grant it and to strike out the action. Dissatisfied with the trial
court’s refusal, the applicant appealed to this court against the refusal of
the trial court to strike out the action. The applicant then applied to the
trial court for an order staying proceedings in the action pending the
determination of the appeal to this court as to whether the trial court was
right in refusing to strike out the respondent’s action. That application was
also dismissed. The applicant then filed the present application before us,
which is a repetition of his last one before the trial court, asking us to
order a stay of proceedings in the trial court pending the determination of the
appeal. The ground upon which this application is based is contained in
paragraph (5) of the affidavit in support of the application. It reads:<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">“5 That
it is my respectful contention that if the proceedings before this court (i.e.
High Court) are not stayed and the petitioner-applicant is successful on appeal
it will render the entire proceedings in this court a nullity, especially as
the issue to be determined on appeal goes to the competence of the respondent
to issue a writ.”<o:p></o:p>At the
hearing of the application before us, counsel for the respondent, Mr. Kom,
raised a preliminary objection. He contends that the application is, in his own
words, “in law misconceived as being premature.” This is because, according to
counsel, the application violates rule 21 of the Court of Appeal Rules, 1962
(LI 218) as an appeal has not been entered in this court for the court to be
seised of the matter to enable it entertain the application. Counsel also
submitted that the application could not be brought under rules 27 and 28 of LI
218 as it is not an application for stay of execution but of proceedings.
Counsel cited in support the cases of Shardey v Adamtey and Shardey v Martey
(Consolidated) [1972] 2 GLR 380, CA, and the recent decision in Republic v High
Court, Ho; Ex parte E P Church of Ghana [1991] 1 GLR 323, SC. Counsel further
submitted that rule 31 of LI 218 and the case of Republic v Committee of Inquiry
(R T Briscoe (Ghana) Ltd.); Ex parte R T Briscoe (Ghana) Ltd. [1976] 1 GLR 166,
CA were not applicable in this matter as was submitted by the applicant’s
counsel, Nana Akufo-Addo.<o:p></o:p>My
understanding of rule 21 of LI 218 is as expressed in the High Court decision
of Agyeman II v Hima Dekyi XIII, High Court, Sekondi, 15 November 1984;
digested in [1984-86] GLRD 117. In that case, Adjabeng J (as he then was) held,
as stated in the headnote, that:<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">“[A]ccording
to rule 21 of the Court of Appeal Rules, 1962 (LI 218), the Court of Appeal
would become seised of the whole of the proceedings ‘after an appeal has been
entered,’ i.e. entered in the cause list of the Court of Appeal and that could
not be done until the record of appeal had been transmitted by the registrar of
the court below to the Registrar of the Court of Appeal as required by rule
15(2) of LI 218. It was only when an appeal had been so entered as aforesaid
that ‘every application therein shall be made to the Court and not to the Court
below’ as provided by rule 21. In the interim, i.e. before the appeal was
entered in the cause list of the Court of Appeal, it was the court below which
had power in the first instance to deal with all the interim applications in
the matter especially applications that concerned the preservation of the
subject-matter of dispute. In the instant case, since the record of appeal and
all the relevant documents had not been transmitted to the Court of Appeal, the
High Court had jurisdiction in the first instance to entertain the defendants’
application for interim injunction. Ampong v Frempong [1965] GLR 350 at 353, SC
applied.”<o:p></o:p>The
decisions in the cases </main>