ATTORNEY GENERAL& ANOR. vs. APAADE LODGE LIMITED [2008]DLSC2451

Date	2008-12-10
Suit No.	SUIT NO CM J8/44/2008
Citation No.	[2008]DLSC2451

AKUFFO (MS) J.S.C (PRESIDING)

DATE-BAH J.S.C

ADINYIRA (MRS) J.S.C

OWUSU (MS) J.S.C.

DOTSE J.S.C

THADDEUS SORY FOR THE APPLICANT

MOHAMMED SAHNOON FOR THE RESPONDENT

[2008]DLSC2451
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													<main id="main" class="content" style="min-height: 60rem" >ATTORNEY GENERAL&amp; ANOR.<o:p></o:p>vs.<o:p></o:p>APAADE LODGE LIMITED<o:p></o:p>[SUPREME
COURT]<o:p></o:p>SUIT
NO CM J8/44/2008<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: 10th December, 2008.<o:p></o:p>

</div>COUNSEL<o:p></o:p>THADDEUS
SORY 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">

MOHAMMED
SAHNOON FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

AKUFFO
(MS) J.S.C (PRESIDING), DATE-BAH &nbsp;J.S.C, ADINYIRA
&nbsp;(MRS) J.S.C, OWUSU (MS) J.S.C., DOTSE
J.S.C<o:p></o:p>

</div><o:p>&nbsp;</o:p>RULING<o:p></o:p>&nbsp;ADINYIRA (MRS),J.S.C:<o:p></o:p>The
facts briefly are that on 3 March 2006, the Plaintiff/respondent (hereinafter
respondent) commenced an action at the High Court Accra against the Attorney
General as 1st defendant and the Ghana Football Association as the 2nd
defendant (hereinafter applicant) jointly and severally, for the recovery of
the sum of ¢422, 148,026 with interest being debt owed in respect of hotel and
restaurant services provided by the plaintiff to the Ministry of Education,
Youth and Sports and the applicant. The 1st defendant entered appearance but
failed to file a defence, and the applicant herein did not enter any
appearance. On 4 April 2006, upon an application by the respondent, the High
Court entered judgment against the defendants, jointly and severally, in
default of defence and appearance respectively. The respondent took steps to
execute the judgment, and then the applicant applied to the High Court to set
aside the default judgment on the main ground that it was not liable for the
debt, as the understanding was that it was the 1st defendant who was to settle
the bills. The High Court refused to set aside the judgment. The applicant
therefore appealed to the Court of Appeal against this refusal but was again
unsuccessful by a judgment dated 22 May2008. The applicant filed an appeal
against the judgment of the Court of Appeal and then applied for a stay of
execution of the default judgment of the High Court dated 4 April 2006. The Court
of Appeal refused the application on the ground that the applicant had not
appealed against the said judgment. <o:p></o:p>The
applicant has now brought a repeat application before us and has urged upon
this Court to stay the judgment of the High Court dated 4 April 2006. Counsel
for the applicant conceded in his submissions that the judgment of the Court of
Appeal dated 22 May 2008 against which he had lodged an appeal was
non-executable and therefore cannot be stayed. He further conceded that he had
not appealed against the judgment of the High Court dated 4 April 2006 but
argued that this failure does not mean this Court has no jurisdiction to
entertain his application. The basis of his argument is two fold, namely : 1)
The Supreme Court has jurisdiction under Article 129(4) of the 1992
Constitution and the Courts Act 1993 (Act 459) to stay the judgment and 2) that
procedurally one cannot legitimately appeal against a default judgment and
therefore in the interest of justice and pursuant to the inherent jurisdiction
of the Court, a stay of execution against a default judgment could be granted
to ensure that there is no failure of justice in the likelihood event that the
appeal is successful.<o:p></o:p>We
will now deal with these points seriatim.<o:p></o:p>The
Inherent Jurisdiction of the Supreme Court under Article 129 (4) of the 1992
Constitution <o:p></o:p>The
applicant has brought a repeat application before us and has urged upon this
Court to stay the judgment of the High Court dated 4 April 2006 by the exercise
of our inherent jurisdiction under Article 129(4) of the 1992 Constitution
(similar&nbsp; provision under section 2 (4)
of the Courts Act&nbsp; 1993, Act 459), which
provides as follows:<o:p></o:p>“For the purposes of hearing and
determining a matter within its jurisdiction and the amendment, execution or
the enforcement of a judgment or order made on any matter, and for the purposes
of any other authority, expressly or by necessary implication given to the
Supreme Court by this Constitution or any other law, the Supreme Court shall
have all the powers, authority and jurisdiction vested in any court established
by this Constitution or any other law.”<o:p></o:p>This
invitation by the applicant is in effect asking this Court to depart from
well-laid rules and procedures with regard to application for stay of execution
pending appeal. It is beginning to become a fashion for applications to be
brought to this&nbsp; Supreme Court
ingeniously inviting us to depart from well laid rules and procedures clearly
defined under the Constitution&nbsp;&nbsp; and
other enactments as well as case law, to assume concurrent jurisdiction with
the High Court and other adjudicating tribunals under the ambit of our inherent
jurisdiction and /or in the exercise of our supervisory jurisdiction, where in
those instances the applicants are met with difficulties arising from wrong
procedural steps they have taken.&nbsp; It is
worthwhile to refer to a few instances. <o:p></o:p>In
the case of Edusei (No.1) v. Attorney General and Anr. [1996-97] SCGLR 1, the
Supreme Court by a majority decision dismissed an action brought by the
applicant for the enforcement of his fundamental right to freedom of movement.
The brief facts are that, in 1992, the applicant who was said to have engaged
with others in espionage on behalf of the United States of America was allowed
to leave the country. But before he left his Ghanaian passport was seized. In
1994 he wanted to return to the country he therefore wrote to the Minister of
Foreign Affairs for the return of his old passport to enable him to apply for a
new one. He received no response. He therefore instituted an action in the
Supreme Court and claimed inter alia that as a citizen of Ghana by birth he had
the constitutional right to enter Ghana and a fortiori to a passport to enable
him exercise and enjoy that right.&nbsp; In
their statement of case the defendants contended inter alia that since the
plaintiff was seeking an enforcement of his right of freedom of movement- a
fundamental human right, the court has no jurisdiction to determine the claim
because under articles 33 (1) and 130(1) of the 1992 Constitution, it was the
High Court and not the Supreme Court that had the exclusive jurisdiction to
entertain that suit. The Supreme Court by a majority decision upheld the
submission by the defendants and dismissed the plaintiff’s action.
Subsequently, in an application for a review reported in the case of Edusei
(No.2) v. Attorney General [1998-99] SCGLR 753 the ambit of Article 129(4) of
the 1992 Constitution was considered in the respective judgments of their
Lordships Kpegah and Atuguba JJSC.<o:p></o:p>