THE REPUBLIC vs. DR NII KOTEI DZANI AND OTHERS EX PARTE: PROF COLLINS FOSU [2019]DLHC6855

Date	2019-07-16
Suit No.
Citation No.	[2019]DLHC6855

DR. RICHMOND OSEI-HWERE J

KWASI AFRIFA FOR AMA ASENSO FOR THE APPLICANTS

JAMES MARSHALL BELIEB FOR PROSPER NYAHE FOR RESPONDENTS

[2019]DLHC6855
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>DR NII KOTEI DZANI AND
OTHERS EX PARTE: PROF COLLINS FOSU<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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&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: 16TH&nbsp; &nbsp;JULY,
2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWASI
AFRIFA FOR AMA ASENSO FOR THE APPLICANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JAMES
MARSHALL BELIEB FOR PROSPER NYAHE FOR RESPONDENTS<o:p></o:p>

</div>CORAM:<o:p></o:p>DR.
RICHMOND OSEI-HWERE, J<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;line-height:115%;
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</div>This
is an application for stay of proceedings in respect of the instant contempt application
pending before this court.<o:p></o:p>On
31st May, 2019 during the hearing of the contempt application,
counsel for the respondents, Archie Danso Esq. raised a preliminary legal
objection against the propriety of the contempt application. After hearing both
counsel the court overruled the preliminary legal objection on that ground that
“Counsel's submissions are with all intents and purposes, a defence to the
substantive allegation and that does not in any shape or form pass the test of
a preliminary legal argument that can bring the application to a halt.”<o:p></o:p>Aggrieved
by the decision of the court, the Respondents/Applicants (hereinafter called
Respondents) have appealed against the decision of the court per a Notice of
Appeal filed on 12/06/2019. On the same day the Respondents filed a Motion on
Notice for stay of proceedings pending the determination of the appeal.<o:p></o:p>The
main ground of the application is that since this is a contempt proceeding and
there is the possibility of imprisonment resulting from it. It is necessary
that the Court of Appeal determines their objection else their possible
incarceration will render the success of the appeal nugatory. Counsel for the
Respondents cited the case of Ghana National Trading Corporation v Baiden
(1987/88) 2GLR 163, Holding 3 and argued that the danger of the Respondents
suffering injustice if the proceeding is not stayed constitutes a special
circumstance which warrants the grant of stay of proceedings.<o:p></o:p>The
Applicant/Respondent (hereinafter called the Applicant) is opposed to the
application. It has demonstrated the basis of his opposition in an affidavit in
opposition to the motion filed on 14/06/2019. It is Applicant’s contention that
the appeal is not likely to succeed and that the instant application is aimed
at stultifying the hearing of the contempt application. The Respondent also
contends that the application is incompetent not having been filed by the
Lawyer on record who at all times material has been Archie Martin Danso (Jnr)
Esq. of Archie Danso &amp; Associates rather than the present Lawyer who
practices from an entirely different law firm. Counsel for the Applicant
submitted that the matter before this court is the contempt application and that
the said Prosper Nyahe Esq. who has filed the instant application is not known
to this court and in this matter. <o:p></o:p>On
the substantive application, counsel for the Applicant cited the case of
Republic v Committee of Inquiry (R T Briscoe Ghana Ltd); ex parte R T Briscoe
(Ghana) Ltd (1976) 1 GLR 166, Holding 2 and submitted that an application for
stay of proceedings must demonstrate that the appeal has an excellent chance of
success and the Respondents have failed to demonstrate that fact, in the
instant case.<o:p></o:p>Motion
for stay of proceedings is filed where the applicant desires that the trial or
hearing should be stopped while he pursues an aspect of the case in an
appellate court or the same court. However, the mere fact that the applicant
has appealed against a ruling or order of the court in an interlocutory matter
during a civil trial shall not entitle him or her to stay of proceedings. The
Court of Appeal held in Garrett v Garrett [1991] 2GLR 366, CA as follows: <o:p></o:p>“It is our view that while a party who
is aggrieved by a ruling of a court has a right to appeal, that appeal should
not automatically justify an order staying proceedings before that court
pending the determination of the appeal. We think such an order should be made
in very exceptional circumstances such as where there is a likelihood that the
subject matter of the dispute may be irretrievably lost before the
determination of the appeal”.<o:p></o:p>It
is entirely within the discretion of the court to grant or refuse an
application for stay of proceedings. In determining the application for stay of
proceedings, the court must ensure that there are special circumstances
warranting a stay. In Republic v Committee of Inquiry (R T Briscoe Ghana Ltd);
ex parte R T Briscoe (Ghana) Ltd (1976) 1 GLR 166 the court held that the mere
allegation that there had been misdirection or series of them would not be
deemed special circumstances to grant a stay of proceedings pending appeal. The
court was of the opinion that those alleged errors could be fully canvassed
when the merits of the appeal are gone into at the appropriate time committee.<o:p></o:p>I
have assessed the affidavit evidence before me and submissions by both counsel
and I hold that the Respondents have not canvassed the requirement of special
circumstances to warrant the stay of proceedings.<o:p></o:p>On
the competence of Prosper Nyahe Esq, to file this application, it is clear that
the Respondents did not reengage Archie Danso Esq. to represent them at the
Court of Appeal in the interlocutory appeal but they rather engaged Prosper Nyahe
Esq. In such a situation, because “a notice of appeal is an originating process
that may be likened to a writ of summons” a notice of change of representation
is not required to be filed at the Court of Appeal under the law. See Tindana v
Chief of Defence Staff [2011] 1 SCGLR 732<o:p></o:p>