ABED NORTEY vs. AFRICAN INSTITUTE OF JOURNALISM & COMMUNICATION & 2 ORS [2013]DLSC6123

Date	2013-04-15
Suit No.	CIVIL MOTION No. J8/49/2013
Citation No.	[2013]DLSC6123

BENIN J.S.C.

KWAME YENKYERE FOR THE APPLICANT.

CHARLES HAYIBOR FOR THE 2ND AND 3RD RESPONDENTS

[2013]DLSC6123
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													<main id="main" class="content" style="min-height: 60rem" >ABED NORTEY<o:p></o:p>{PLAINTIFF/RESPONDENT/APPELLANT/APPLICANT}<o:p></o:p>vs.<o:p></o:p>AFRICAN INSTITUTE OF JOURNALISM &amp; COMMUNICATION &amp; 2 ORS<o:p></o:p>{DEFENDANT/
DEFENDANT/APPELLANT/RESPONDENT}<o:p></o:p>[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
MOTION 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; &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: 15TH
APRIL, 2013<o:p></o:p>

</div>COUNSEL:<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>

</div>CORAM:
<o:p></o:p>BENIN J.S.C. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>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. A repeat application
to this court was struck out as withdrawn with costs of GH¢2,000.00, 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>The instant application
was not brought before the court below in the first place; it was brought
directly to this court. By virtue of Rule 16(1) the applicant did not have the
right to come directly to this court when the court was not seized with the
appeal.<o:p></o:p>For the foregoing reasons,
it is my view that the application is incompetent. It cannot be saved by the
fact that the court is now seized with the appeal, what is material to consider
is that at the time of filing the court was not seized with the appeal. There
is thus no reason to go into the merits of the application. The application is
accordingly dismissed with costs of GH¢1,000.00 against the applicant in favour
of the 2nd and 3rd respondents.<o:p></o:p><o:p>&nbsp;</o:p>