JOHN BANDOH vs. INDAMINA COMPANY LTD. [2007]DLCA6414

Date	2007-02-16
Suit No.	CIVIL MOTION H3/233/2006
Citation No.	[2007]DLCA6414

KANYOKE J.A. [PRESIDING]

KUSI-APPIAH J.A.

APALOO J.A.

MR. JOE ATTIPOE FOR THE RESPONDENT/APPELLANT

MR. GEORGE SARPONG FOR PETITIONER/RESPONDENT

[2007]DLCA6414
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													<main id="main" class="content" style="min-height: 60rem" >JOHN BANDOH<o:p></o:p>(PETITIONER/RESPONDENT)<o:p></o:p>&nbsp;vs.<o:p></o:p>INDAMINA COMPANY LTD.<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
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MOTION H3/233/2006 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 16TH FEBRUARY 2007<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. JOE ATTIPOE FOR THE
RESPONDENT/APPELLANT <o:p></o:p>

MR. GEORGE SARPONG FOR
PETITIONER/RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KANYOKE J.A. [PRESIDING],
KUSI-APPIAH J.A., APALOO J.A.<o:p></o:p>

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

</div>APALOO
J.A.: <o:p></o:p>This
ruling arises from a preliminary legal objection filed in this Court pursuant
to Rule 16 of C.I. 19 of the Court of Appeal Rules as amended. The objection
taken by the Respondent to the hearing of the appeal and or motion stated as
follows: <o:p></o:p>1.
As an appeal has been lodged in this Court against the decision of the High
Court, an application for stay of proceedings ought to have been brought at
first instance to the High Court before a repeat application can be made to
this Court. <o:p></o:p>2.
The present motion is simply a repeat of an earlier one brought by the
Respondent Company and dismissed by the High Court and pending an Appeal before
this Court. Hearing this motion will therefore amount to determining the appeal
summarily. <o:p></o:p>3.
The present application has been filed out of time. We ordered arguments to be
filed in respect of the preliminary objection for our determination and noted
with concern that both Counsel went beyond the scope of the objection the
Respondent had raised. <o:p></o:p>We
gathered from the facts that the Court below dismissed a motion for stay of
proceedings filed at the instance of the Appellant/Respondent. Being
dissatisfied with the refusal to stay proceedings at the Court below, the
Appellant appealed the ruling to this Court and subsequently brought a motion
for stay of execution which was also dismissed by the lower Court. <o:p></o:p>In
his submissions to this Court, Counsel for the Respondent argued that what is
before this Court is a motion on notice for stay of proceedings for winding up
of Indamina the Respondent herein. Counsel submitted that since an appeal has
already been lodged, an application for stay of proceedings pending appeal
ought to have been brought at first instance in the High Court, then in the
event of a failure of the application at the High Court, a repeat application
can then be lodged in this Court to invoke this Court's jurisdiction.<o:p></o:p>&nbsp;Counsel stressed that the appellant rather
filed an application for stay of execution pending appeal at the Court below
which was dismissed. <o:p></o:p>From
the facts it is not in dispute that the application for stay of proceedings was
dismissed by the Court below on 7th February 2006 and that resulted in the
appeal which was filed on 8th February, 2006. A motion for stay of execution
pending appeal was equally dismissed on 27th February 2006 by the Court below
and on 1st March 2006 appellant filed a motion for stay of proceedings in this
Court. <o:p></o:p>From
the dates recited herein there is no doubt that the appellant's interlocutory appeal
was filed within the 21 days envisaged in the rules for such appeals. We
therefore hold that the interlocutory appeal was filed within time. <o:p></o:p>Counsel
for the Respondent's reliance on the Supreme Court's case of Takyi vrs Ghassoub
[1987-88] 2 GLR 452 is unfortunate and quite misleading. The Court of Appeal
[Amendment] Rules, 1998 C.I. 21 which came into force on 27th May, 1998
subsequent to that Judgment enlarged the jurisdiction of the Court of Appeal.
By Rule 27A of C.I. 21 the Court of Appeal was vested with jurisdiction to
grant stay of proceedings pending appeal. The words in the Constitutional
Instrument are unambiguously clear and I quote the same for their full effect; <o:p></o:p>"R
27A: the Court may in any interlocutory appeal, Civil or Criminal before it,
grant stay of proceedings pending the determination of the interlocutory
appeal, subject to such terms as the Court considers fit". <o:p></o:p>Indeed
Rule 27A of C.I. 21 reversed the Supreme Court's decision in Takyi vrs:
Ghassoub [supra].<o:p></o:p>It
is noted that the interlocutory appeal having been properly filed after the
lower Court had refused to stay proceedings, there was no need for the
appellant to bring a fresh application before the lower Court again for stay of
proceedings as a condition for invoking the Jurisdiction of the Court of Appeal
as suggested by Counsel for the Respondents. Counsel</main>