MARTIN ALAMISI AMIDU vs. THE ATTORNEY, WATER VILLE HOLDINGS (BVI) LTD & 2 OTHERS AND ALFRED AGBESI WOYOME [2017]DLSC2626

MARTIN ALAMISI AMIDU vs. THE ATTORNEY, WATER VILLE HOLDINGS (BVI) LTD & 2 OTHERS... [2017]DLSC2626

Date	2017-07-04
Suit No.	CIVIL APPEAL NO. J8/115/2017
Citation No.	[2017]DLSC2626

BENIN JSC SITTING AS A SINGLE JUDGE

KEN ANKU FOR THE APPLICANT

GODFRED ODAME DEPUTY ATTORNEY GENERAL FOR THE RESPONDENT

[2017]DLSC2626
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													<main id="main" class="content" style="min-height: 60rem" >MARTIN ALAMISI AMIDU<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY, WATER
VILLE HOLDINGS (BVI) LTD &amp; 2 OTHERS AND ALFRED AGBESI WOYOME<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;
padding:0in 0in 1.0pt 0in">

CIVIL
APPEAL NO. J8/115/2017&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;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
DATE: 4TH
JULY, 2017<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KEN ANKU 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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GODFRED
ODAME, DEPUTY ATTORNEY GENERAL FOR THE RESPONDENT<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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BENIN,
JSC SITTING AS A SINGLE JUDGE<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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JUDGEMENT<o:p></o:p>

</div>BENIN, JSC:-<o:p></o:p>This
is an application for a stay of proceedings in respect of two orders made by
this court on the 8th of June 2017. The first order granted a
temporary charging order in respect of the shares held by the judgment/debtor,
now applicant, in certain listed companies. That order was made under Order 49
of the High Court (Civil Procedure) Rules, 2004, C.I. 47. The second order
which was made under Order 46 rule 2 of C.I. 47 granted leave to the
judgment/creditor, now respondent, to orally examine the applicant in respect
of matters specified in the order. The applicant was not satisfied with the orders
as made. He has therefore applied on notice to this court, duly constituted by
a panel of three, by virtue of article 134(b) of the Constitution, 1992 to have
another look at the orders and to set same aside. That application is yet to be
determined. For the time being, the applicant is asking the court to stay the
two orders referred to above.<o:p></o:p>The
application for a stay of proceedings has been brought under article 134(b) of
the Constitution and Rule 73 of the Supreme Court Rules, 1996 C.I. 16.&nbsp; Article 134(b) of the Constitution provides
that:<o:p></o:p>A single Justice of the Supreme Court may exercise
power vested in the Supreme Court not involving the decision of the cause or
matter before the Supreme Court, except that-<o:p></o:p>(b) in civil matters, any order, direction or
decision made or given under this article may be varied, discharged or reversed
by the Supreme Court constituted by three justices of the Supreme Court.<o:p></o:p>Rule
73 of C.I. 16 provides:<o:p></o:p>An application made pursuant to article 134 of the
Constitution in respect of any cause or matter, civil or criminal shall be by
motion on notice and shall be served on any party who has an interest in the
cause or matter.<o:p></o:p>Neither
article 134(b) of the Constitution nor rule 73 of the CI 16 even remotely
permits a party to apply to the court for a stay of proceedings. Indeed both
provisions give direction to a person who is aggrieved with a decision rendered
by a single justice of the Supreme Court and who desires a revision by three
justices of the court. Thus an application to stay proceedings cannot be made
under these provisions as they are completely unrelated. &nbsp;&nbsp;<o:p></o:p>At
the hearing which took place on the 29th June 2017 Counsel for the
applicant sought to make amends by saying they were also coming under the
court’s inherent jurisdiction. Since CI 16 has no specific provision that deals
with a stay of proceedings the court may accept an application invoking the
court’s inherent jurisdiction to stay proceedings. Such an application may also
be received by the court under the common law. The correct procedure then is to
state in the motion paper that you are seeking the court to exercise its
inherent jurisdiction in the matter. Here again the applicant did not do so.
The question that arises is whether the court should throw out the application
for the failure to disclose that they were proceeding under the court’s inherent
jurisdiction. I consider that the court’s avowed aim is to do justice if it has
any jurisdiction to hear and determine the cause or matter before it. When we
talk of justice, we look at all the facts and circumstances of the case in
order to decide on the justice of the particular matter. In this case the
applicant wants the court to take a second look at the orders made, so to them
there will be justice if nothing is done to frustrate the said application. To
the respondent justice will be served if no further delay occurs in their
desire to reap the fruits of the judgment made in their favour. In my view
throwing out this application on this technical ground will not achieve justice
because the applicant cannot be debarred thereby from coming back with a
similar application which will have the effect of further delaying proceedings,
which the respondent does not desire. I have therefore decided that, in the
interest of justice to both parties, it is desirable to deal with the
application exercising the court’s inherent jurisdiction.<o:p></o:p>Counsel
for the applicant agrees that an application for stay of proceedings is an
exercise in discretion. Thus the applicant who seeks the court’s discretion
must be forthcoming with grounds to satisfy the court that it is not devoid of
merit. The only point that the applicant argued is the fact that he has applied
for an expanded bench to set aside the orders. He does not complain that the
orders are working any hardship or inconvenience on him. He does not argue that
they will cause him any irreparable damage if they are not stayed. These points
were raised by the learned Deputy Attorne</main>