GARRETT vs. GARRETT [1991]DLCA2238

Date	1991-07-10
Suit No.
Citation No.	[1991]DLCA2238

ESSIEM JA

OFORI-BOATENG JA

ADJABENG JJ.A.

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

ENOCH KOM S.A.G. (WITH HIM HAYIBOR AND KUADA) FOR THE RESPONDENT.

[1991]DLCA2238
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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 366<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><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ENOCH
KOM, S.A.G. (WITH HIM HAYIBOR AND KUADA) FOR THE RESPONDENT. <o:p></o:p>

ESSIEM,
OFORI-BOATENG AND ADJABENG JJ.A. <o:p></o:p>

</div>JUDGMENT
OF ESSIEM J.A.<o:p></o:p>This is
an application to stay proceedings before the High Court, Accra (coram Brobbey
J.) pending the hearing and determination of the appeal from the ruling of the
said court. That ruling is dated 6 December 1990 and by it the court dismissed
an application by the applicant to strike out the respondent’s writ and
pleadings. The reason for the application was that the respondent, at the time
he instituted the action, had no capacity to initiate any proceedings since he
was an undischarged bankrupt. Admittedly, at the time the respondent initiated
these proceedings he had been declared a bankrupt under the provisions of the
English Bankruptcy Act, 1914 (4 &amp; 5 Geo, c. 59).<o:p></o:p>Among
other arguments, counsel for the applicant argued that if the court below was
not stopped from proceeding with the hearing of the action then pending before
it, the appeal, if it succeeded, would be rendered nugatory. He also expressed
fear that if the court below went ahead to hear the case and gave judgment in
favour of the respondent, the respondent might well dispose of the properties
involved in the litigation before any appeal was determined. Mr Kom, counsel
for the respondent, allayed counsel’s fears by giving an undertaking before us
that even if the respondent won the case before the High Court, he would not
dispose of the properties while any appeal involving the properties was
pending. We have considered the argument of counsel for both parties and we are
of the view that no harm will be done if the case is heard to a finish by the
court below. For one thing, there is the undertaking by the respondent’s
counsel already referred to above. Also the point of the lack of capacity of
the respondent can be raised again on appeal if the applicant loses the case.<o:p></o:p>It is our
view that while a party who is aggrieved by a ruling of a court has a right to
appeal, that appeal should not automatically justify an order staying
proceedings before that court pending the determination of the appeal. We think
such an order should be made in very exceptional circumstances such as where
there is a likelihood that the subject matter of the dispute may be
irretrievably lost before the determination of the appeal.<o:p></o:p>We have
been guided in arriving at our decision in this matter by the case of Seldon v.
Davidson [1968] 1 W.L.R. 1083, C.A. which was followed by Osei-Hwere J. (as he
then was) in Brutuw v. Aferiba [1979] G.L.R. 566 at 570.<o:p></o:p>In the
Ghanaian case of Brutuw v. Aferiba (supra), the High Court refused an
application for a stay of proceedings pending the determination of an appeal
against a ruling in an interlocutory application. Osei-Hwere J. (as he then
was) dealt with the principles applicable to such applications. After examining
both the principles and authorities on the point he concluded his ruling at 570
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">“In my
view Edmund Davies L.J. does not only utter the last word but he also inflicts
the coup de grace to the application when he said in Seldon v. Davidson [1968]
1 W.L.R. 1083 at p. 1089, C.A:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:1.0in;text-align:justify;mso-pagination:none;border:none;
mso-padding-alt:31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">‘If, ... whenever a judge makes a
ruling ... the party against whom that ruling is given [has the right to have
the case adjourned for the ruling to be tested in the Court of Appeal], it may
well be that a chaotic state of affairs would arise. And this is what the
courts must forestall.”<o:p></o:p>We adopt
these words and apply them to the instant application. We think that no special
circumstances have been established before us to justify an order staying
proceedings in the case before the court below. We, accordingly, dismiss the
application.<o:p></o:p>JUDGMENT OF OFORI-BOATENG J.A.<o:p></o:p>I agree.<o:p></o:p>JUDGMENT OF ADJABENG J.A.<o:p></o:p>