PRESTIGE AGENCIES LTD vs. FEMS INTERNATIONAL LTD (NO 3) [1992]DLCA4889

Date	1992-06-18
Suit No.	[1992-93] 2 G B R 839 – 843
Citation No.	[1992]DLCA4889

ESSIEM JA

ADJABENG JA

LUTTERODT JA

AMARTEIFIO FOR THE APPLICANT.

MATANAWUI FOR THE RESPONDENT.

<p class="mb-5" id="contentDlCitation"  hidden>[1992]DLCA4889</p>
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;color:#00B0F0">PRESTIGE AGENCIES LTD<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;color:#00B0F0">FEMS INTERNATIONAL LTD
(NO 3)<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">[COURT
OF APPEAL, ACCRA]<o:p></o:p></span></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" style="text-align:justify;line-height:115%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">MATANAWUI
FOR THE RESPONDENT.<o:p></o:p></span></p>

</div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">CORAM:<o:p></o:p></span></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" style="text-align:justify;line-height:115%;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">ESSIEM
JA, ADJABENG JA, LUTTERODT JA<o:p></o:p></span></p>

</div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">LUTTERODT JA. <o:p></o:p></span></b></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">The
plaintiff-respondent took out a writ of summons against the defendant-applicant
for a number of reliefs. The latter, on being served with the writ and statement
of claim, entered conditional appearance and applied subsequently to have both
the writ and the claim set aside on the ground that the action was
statute-barred. At the hearing, counsel for the applicant raised a preliminary
legal point that I do not think, for our purposes, it is necessary to state.
Suffice it to say that on stating his objections, the matter was adjourned for
the respondent's counsel to answer the points so made and the matter was
thereafter adjourned for ruling. The ruling that was delivered subsequently,
almost a month after arguments had been heard on the preliminary legal points,
dealt not only with the legal points that the applicant had dealt with but also
the substantive application itself on the merits. It went against the
applicant.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">The
dissatisfied applicant did not only appeal against the said ruling, but moved
the court at a subsequent date to have the proceedings in the substantive
matter before the High Court stayed until his appeal had been dealt with. The
learned trial judge however turned down the application for stay.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">In
this motion, therefore, the applicant has repeated the application for stay of
proceedings and implored us to exercise our discretion in its favour and to
grant the order, which it failed to obtain in the court below. The applicant’s
reason is that the appeal has such a very high chance of success that the
interest of justice would be met by a grant rather than a refusal. In an
attempt to demonstrate that its claim to victory was not a mere figment of
imagination or a mere bluff, counsel argued one of the main grounds he is
likely to argue when the appeal comes up for hearing. It was that the trial
judge, without hearing arguments on both sides, gave the ruling complained of.
In support of this argument a record of the proceedings which culminated in the
said ruling was tendered. On the part of the respondent, the argument was that
the said motion was fully argued on 11 February and 10 March 1992 respectively.
The respondent counsel’s argument therefore is that even though this court has
the discretion to stay proceedings, the appeal, contrary to the applicant’s
claim, has not the slightest chance of success, and since in any case the
applicant has not shown any special circumstance warranting a grant of the
order sought, the same ought to be refused.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">One
of the hurdles the applicant’s counsel had to clear was to demonstrate that
this court had jurisdiction to grant the order and so naturally, he sought to
show under what rule the application was being brought. The argument was that
this court derived its jurisdiction from rule 27(1) of the Court of Appeal
Rules 1962 (LI 218) as amended by rule 2 of the Court of Appeal (Amendment)
Rules 1975 (LI 1002). He contended that the draftsman did make a mistake by
omitting the word “or” in the provision under LI 1002 as follows: “an appeal
shall not operate as a stay of execution of proceedings”. He argued that if we
looked at the previous rule we would come to no other conclusion than that “of”
in LI 1002 was an error and should have read “or”. He urged us therefore not to
wring our hands in despair and lament that we can do very little about the
matter, but to be bold and correct the error by replacing “of” with “or” to
enable us give a meaningful effect to the law.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">His
argument, as I understand him, is that when we have succeeded in effecting
these changes we will find that indeed rule 27, as amended, empowers the Court
of Appeal, in the exercise of its jurisdiction, not only to grant orders of
stay of execution but also order stay of proceedings.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">Counsel
was not the first to have argued along these lines. When a similar argument was
put up in the Supreme Court in the case of Takyi v Ghassoub (Ghana) Ltd
[1987-88] 2 GLR 452 the court flatly refused to accede to the request and held
that:<o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><i><span style="font-size:12.0pt;line-height:
115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">“It was a canon of construction of
statutes that the legislature must be presumed to intend what they had written,
and to have used the desired words and language. One could not presume a word
was wrong unless its presence made a whole phrase absurd or meaningless. If the
clause read with the word complained of, could be interpreted (even by
stretching it) to make some sense, it was not the province of the court to
alter the language of the legislature. The court should not assume a mistake in
an Act of Parliament. In the instant case, it was trite knowledge that in order
to put a judgment into effect certain proceedings were requisite. In land
cases, for example, a writ of possession might have to be applied for, prepared
and issued ... Since all those would be proceedings under the judgment, i.e.
proceedings which had fallen to be taken as a result of the judgment, the
provision of rule 27 as amended only meant that none of the proceedings should
stop simply because an appeal had been filed. The execution, i.e. the carrying
out, of those proceedings should go on or until the court ordered the contrary.
Accordingly it was possible to make sense out of the rule without changing 'of'
to 'or’.”<o:p></o:p></span></i></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">The
court thus held that the proper construction to be placed on the rule
complained of was that “a stay of proceedings for execution of the judgment”
had the same meaning as a stay of execution of proceedings under the judgment
and in both the proceedings were proceedings after the judgment, not before the
judgment. The matter in respect of which the order for stay was being sought
was not a proceeding being taken by the respondent to put the ruling complained
of into effect. On the contrary the applicant intended that by this order the
learned trial court should suspend further hearing of the action pending before
the court until the appeal was heard and determined on its merits.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;">In
the circumstances this court cannot assume jurisdiction under rule 27 (1) of
the Court of Appeal Rules, as amended by LI 1002, to grant the order sought,
the simple reason being that the rule does not provide for an order for stay of
proceedings. Had any such provision been made, then the appellant could have,
when the application for stay of proceedings to the court below was refused,
repeated the application before this court. This, the applicant would have been
entitled to do by virtue of rule 28 of LI 218, which reads as f</main>