ABED NORTEY vs. AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION, STEPHEN NARTEY AND DANIEL NARTEY [2013]DLSC2694

ABED NORTEY vs. AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION, STEPHEN NARTEY... [2013]DLSC2694

Date	2013-04-15
Suit No.	CIVIL APPEAL NO. J8/49/2013
Citation No.	[2013]DLSC2694

BENIN J.S.C.

KWAME YENKYERE FOR THE APPLICANT.

CHARLES HAYIBOR FOR THE 2ND AND 3RD RESPONDENTS.

[2013]DLSC2694
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													<main id="main" class="content" style="min-height: 60rem" >ABED NORTEY<o:p></o:p>vs.<o:p></o:p>AFRICAN
INSTITUTE OF JOURNALISM &amp; COMMUNICATION, STEPHEN NARTEY AND DANIEL NARTEY<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL
APPEAL NO. J8/49/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 15TH APRIL, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KWAME
YENKYERE FOR THE APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CHARLES
HAYIBOR FOR THE 2ND AND 3RD RESPONDENTS.<o:p></o:p>

BENIN
J.S.C., SITTING AS A SINGLE JUSTICE OF THE SUPREME COURT<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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JUDGMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>BENIN, JSC:-
<o:p></o:p>The
plaintiff/respondent/appellant/applicant, hereinafter called the applicant,
brought the present application to this court seeking an order of injunction
pending appeal to restrain all the parties by themselves, servants, agents,
workmen, assigns or otherwise dealing with the land in any way till the final
determination of the appeal pending before this court.<o:p></o:p>The
facts giving rise to this application are briefly stated as follows. The
applicant sued the three defendants before the High Court claiming declaration
of title to a piece of land described in the writ, among other reliefs. The
applicant got judgment at the High Court. Dissatisfied with the decision of the
High Court, the defendants appealed to the Court of Appeal which overturned the
judgment of the High Court, by its judgment dated 14th June 2012.
The applicant appealed against the entire judgment of the Court of Appeal on
the sole ground that the judgment is against the weight of evidence. <o:p></o:p>The
applicant applied to the Court of Appeal to stay execution pending appeal to
this court, but the court below dismissed the application for stated reasons. &nbsp;A repeat application to this court was struck
out as withdrawn with costs of GHC2,000.00, according to the court’s record
dated 11th December 2012. The effect of this order is that there was
no stay in force, but the applicant could come back to this court with a
similar application in the same proceedings.<o:p></o:p>However,
the applicant did not file another application for stay of execution but rather
filed the present application for interlocutory injunction. The grounds for
this application are deposed to in an affidavit in support, particularly
paragraphs 8 to 16 thereof. Briefly stated, the applicant complains that
despite the pendency of the appeal, the land is being disposed of and developed
at a fast rate. It will be in the interest of justice and the parties that all
parties be restrained, according to the applicant.<o:p></o:p>The
2nd and 3rd defendants/appellants/respondents,
hereinafter called the respondents, opposed the application. Among other
grounds, the respondents raised what appears to be a legal objection to the
application. Counsel for the respondents cited Rule 16(1) of the Supreme Court
Rules, (1996) C.I. 16, and submitted that the application was incompetent in so
far as the court was not seized with the appeal at the time the application was
filed.<o:p></o:p>Rule
16(1) provides that ‘After the
transmission of the record of appeal from the court below to the court, the
Court shall be seized of the appeal and any application relating to the appeal
shall subsequently be made to the Court’.<o:p></o:p>The
meaning of this Rule is clear and it is this: the court below should not hear
any aspect of the case once the record of appeal has been transmitted to this
court; hence all applications shall be addressed to this court.<o:p></o:p>This
Rule should be considered alongside Rule 20(2) which reads thus: ‘Subject to these Rules and to any other
enactment governing appeals an application for stay of execution or of
proceedings shall first be made to the court below and if that court refuses to
grant the application, the applicant shall be entitled to repeat the
application before the court for determination’.<o:p></o:p>Whereas
Rule 20(2) applies where the record of appeal has not been transmitted to this
court, Rule 16(1) applies from the moment the record is transmitted to this
court. The application for stay of execution which was made to the court below
which that court dismissed as well as the repeat application to this court
which was withdrawn were both made under Rule 20(2). What of the instant
application? At the time the present application was filed, the record of
appeal had not yet been transmitted to this court. It followed that this court
was not seized with the appeal, therefore all interlocutory applications, not
only those for stay of execution and stay of proceedings, should first be made
to the court below, before a repeat application could be brought before this
court. This is because the court is not acting within its original jurisdiction
and is not seized with the appeal yet. Hence the court below should have the
benefit of having a first look at all the interlocutory applications in the
case, since by rules of court the matter is still pending in that forum until
the record has been transmitted to this court. <o:p></o:p><</main>