The Great Somersault in Ex Parte Ecobank Ghana Limited.

A: Introduction
On 18^th January, 2022, the Supreme Court gave its ruling in Ex Parte Ecobank Ghana Limited[1] and reserved its reasons for a later date. The main issue for determination in the application was whether C.I 132[2] has taken away the High Court’s jurisdiction to hear applications filed after an appeal is lodged against a High Court’s decision. Many were those who waited for the Supreme Court’s decision and the reasons thereof with bated breath. The new amendments introduced into the Court of Appeal Rules by C.I 132 had given many lawyers and judges anxious moments. This article sets out the basis for the application in Ex Parte Ecobank Ghana Limited. It discusses the genesis of the problem the parties encountered in the High Court that ended in the application for judicial review before the Supreme Court. The article posits that the conclusion reached by the Supreme Court that C.I 132 did not take away the High Court’s inherent jurisdiction to entertain applications pending appeal, is great and a welcome development[3]. But the question that remains to be answered is whether the reasons given by the Supreme Court in support of its ruling is grounded in law. The article concludes by suggesting that C.I 132 only came to create problems where none previously existed and the Rules of Court Committee must do the needful and restore the revoked provisions. That way, the Supreme Court may be saved the head-scratching task of dealing with another application cast in the mold of Ex Parte Ecobank Ghana Limited.

B: The case: Ex Parte Ecobank Ghana Limited

The case involved a simple set of facts. The High Court (Commercial Division), Accra handled a suit between the interested parties as plaintiff and defendant. The plaintiff, as judgment-creditor, went into execution and instituted garnishee proceedings against two banks, that is, Ecobank Ghana Limited (the applicant) and another bank. The High Court made a garnishee order absolute against only the applicant for the payment of the whole of the judgment debt. The applicant was unhappy with the Court’s decision and so, filed an appeal against the order to the Court of Appeal. The applicant applied to the Court of Appeal for stay of execution pending appeal. The Court of Appeal refused the application. The applicant then went back to the High Court with an application under the Court’s inherent jurisdiction for an order to suspend the garnishee order absolute and stay the proceedings of execution pending the determination of the appeal. Then, Counsel for the judgment-creditor raised a preliminary objection to the hearing of the application by the High Court arguing that, the power of the High Court to stay execution of its judgment or order that has been appealed against has been taken away by C.I.132. The learned High Court judge agreed and upheld the objection and declined to hear the application for stay of execution on the merits. The application was, therefore, dismissed in limine as being incompetent. The garnishee, that is, the applicant herein, then filed a motion before the Supreme Court for an order of certiorari to quash the High Court’s ruling on grounds of blatant error of law apparent on the face of the record and further, for an order of mandamus compelling the trial High Court judge to hear and determine the application on the merits.

The Supreme Court held that, the applicant was right in filing the application for stay of execution before the High Court. Therefore, the trial judge fell in error when she ruled that she had no jurisdiction to hear the application. The Supreme Court quashed the trial judge’s decision and further granted an order of mandamus directed at the trial judge to hear and determine the application on its merits.

C: Was C.I 132 necessary?
The Supreme Court’s decision that the applicant was right in filing its application for stay of execution pending appeal at trial High Court instead of the Court of Appeal is most commendable. The question that arises from the Supreme Court’s ruling is this: was C.1 132 necessary if applications for stay of execution and proceedings pending appeal are still to be made to the lower court (High Court or Circuit Court) and not the appellate court (Court of Appeal)? In giving its ruling in Ex Parte Ecobank Ghana Limited, the Supreme Court relied heavily on Rule 21 of C.I 19.[4] Rule 21 is on “control of proceedings during pendency of appeal” and that is why the Rule opens by saying “After the record of appeal has been transmitted from the court below to the Court, the Court shall be seised of the whole of the proceedings as between the parties and every application shall be made to the Court and not to the court below, but any application may be filed in the court below for transmission to the Court.” (Emphasis supplied)

Now, if the Rules of Court Committee was aware that Rule 21 of C.I 19 required that all applications pending appeal must be made first, to the court below, then why did they choose to revoke only Rules 27(A) and 28 in C.I 132? At any rate, it is difficult for one to agree with the Supreme Court’s position that since Rule 21 is still in operation, applications for stay of execution and proceedings pending appeal could properly be made under Rule 21. The fact is that, before an appeal will be deemed to be pending before the Court of Appeal, that is, before the record of appeal is transmitted to the Court of Appeal, Rule 21 will not be the applicable rule under which the parties will bring applications before the Court of Appeal. As stated in the preceding paragraph, Rule 21 kicks in and becomes operational only “after the record of appeal has been transmitted from the court below” to the Court of Appeal. It was for that reason that the old Rules 27(A) and 28 were specifically enacted to deal with interlocutory applications that may be filed by parties before the record of appeal has been transmitted from the court below. In other words, the old Rules 27 (A) and 28 regulated interlocutory applications pending appeal until the appeal was ripe for hearing, and then Rule 21 will take over from there, literally speaking.

The revoked Rule 28 provided for the court to which application should be made when a case is on appeal thus: “Subject to these Rules and to any other enactment, where under any enactment an application may be made either to the court below or to the Court, it shall be made in the first instance to the court below, but if the court below refuses to grant the application, the applicant shall be entitled to have the application determined by the Court.”[5] This provision accorded the best guide to applicants, lawyers and Judges alike as to the proper forum to file applications relating to appeals. If, as the Supreme Court admits in Ex parte Ecobank Ghana Limited, “Rule 28 codified a settled practice of the courts, [and] its revocation does not take away the right of an applicant whose application for stay of execution has been refused by the lower court to repeat same in the Court of Appeal even if the record of appeal has not yet been transmitted to the Court of Appeal,” then, the multi-million cedi question is: why did the Rules Of Court Committee revoke such a provision that had graciously ‘codified a settled practice’ only to supplant it with ‘settled practice and inherent jurisdiction?[6]

Interestingly, in spite of the great pains the Supreme Court took to make the amendments in C.I 132 look fine, their Lordships could not advance a single policy, practice or other tangible reason to explain why such amendments were made. Ex parte Ecobank Ghana Limited is the best example yet of the practical problems C.I 132 has visited on the entire judicial system; parties, lawyers and Judges. As the Supreme Court rightly notes, even the applicant’s lawyer initially laboured under the impression that C.I 132 had taken away the High Court’s jurisdiction to hear applications for stay of execution pending appeal and that was why the initial application for stay was filed at the Court of Appeal. The Court of Appeal panel saw through the danger in assuming jurisdiction over such an application under C.I 132 and rightly declined the invitation. One can only imagine the frustration and trepidation with which the applicant had to change its mind and go back to the High Court with a different song on its lips. As it happened, the High Court was not enamoured with the new song and threw the applicant out. Finally, the Supreme Court came to the applicant's rescue, but not without its own fits and falls. Thus far, C.I 132 has brought us.

D: The Road to perdition
Perhaps, the most telling aspect of the Supreme Court’s ruling in Ex parte Ecobank Ghana Limited is their Lordships’ reference to, and reliance on, the execution processes set forth in Order 43 rule 11 and Order 45 rule 15 (1) of C.I 47.[7] This is what the Supreme Court said: “…a close reading of the language of the original Rules 27 and 28 together, will reveal that the rules do not purport to confer jurisdiction on the lower court to hear applications for stay of execution pending appeal but only made reference to existing jurisdiction of the lower court in that regard. That existing jurisdiction of the lower court is to be located in the settled practice of the High Court that has been stated in the High Court (Civil Procedure) Rules, 2004 (C.I.47) in Rule 11 of Order 43 and Rule 15 (1) of Order 45 which deal specifically with stay of execution in the High Court. … Order 43 Rule 11 … is a very general power to grant stay of execution by means of any process of execution or to grant other form of relief from the legal consequences of any decision of the High Court for justifiable (sic) reason of a matter occurring after the judgment. The filing of an appeal is certainly one matter that may occur after a judgment and can ground an application for stay of execution or of proceedings under Order 43 Rule 11. Similarly, an appeal can also warrant an application for stay of execution under Order 45 Rule 11 (sic)[8] if it raises special circumstances for the consideration of the court.”[9] (Emphasis supplied)

With all due respect to the Supreme Court, the reference to Order 43 rule 11 and Order 45 rule 15 (1) of C.I 47 as being provisions that afford appellants the opportunity to file applications for stay of execution or proceedings pending appeal, is misconceived. These High Court rules have nothing to do with cases in which appeals have been filed against a trial court’s judgment as will be demonstrated presently. There are different ways of applying for stay of execution of a judgment of a court. First, there is application for stay of execution pending appeal. This application may be filed before the trial court and if it is dismissed, it may be repeated at the appellate court. This kind of application for stay of execution falls under the Court of Appeal Rules in cases on appeal from the Circuit Court or High Court. Such applications for stay of execution pending appeal were for several years made under the old Rules 27 (A) and 28 (revoked by C.1 132). Such an application would be made to the trial court in the first instance. If the trial court refused the application, then the applicant could repeat it at the Court of Appeal.[10] A typical example of such an application is what transpired in Ex parte Ecobank Ghana Limited.

Secondly, a party may apply for stay of execution under Order 43 rule 11 of C.I 47. This application for stay of execution is not dependent on an appeal. Under this rule, the judgment debtor may apply for stay of execution where he has not appealed against the judgment given by the trial court but can demonstrate to the trial court that some events that have happened since the judgment was given justifies a stay of the execution of the judgment. Order 43 rule 11 provides that “a party against whom a judgment or order has been given or made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant the relief, on such terms as it thinks just.”[11] (Emphasis added) This provision is without prejudice to Order 45 rule 15, which we will examine shortly. Order 43 rule 11, therefore, is a special type of stay of execution that a party can apply for on the basis of new developments that have taken place since the judgment was given. The application is made to the trial court that gave the judgment or made the order. Typical examples are applications for stay of execution and to set aside a default judgment or for variation of a court’s previous orders. It could be a judgment in default of appearance, default of defence, non-attendance in court, or non-compliance with the rules or a court order. In Republic v High Court (Commercial Division) Accra; Ex parte Double Crown Investment Ltd (Granada Hotel Ltd Interested Party)[12] the Supreme Court held that the application for variation of the order made after the consent judgment was entered was in order. The application for variation of the order did not need to be premised on an appeal. In London Permanent Benefit Building Society v de Baer,[13] Plowman, J. held that the power to grant relief under the rule (the analogous provision of Order 43 rule 11 in the English Rules) was to be exercised on the basis of matters that have occurred since the date of the judgment or order, that is, matters that would have prevented the order being made or would have led to a stay of execution if they occurred at the date of the order.

Now, a third method of staying execution of a judgment or order is under Order 45 rule 15 (1). It relates solely to stay of execution by writ of fieri facias (fi: fa) where the judgment or order is for payment of money. Where a judgment is given or an order is made for the payment of money by a party, and the party (judgment debtor) is able to satisfy the court (a) that there are special circumstances which render it inexpedient to enforce the judgment or order;[14] or (b) that the applicant is unable from any just cause to pay the money, the court may grant an application for stay of execution. Under this rule too, there is no requirement that an appeal must be pending before the judgment debtor can apply for stay of execution.

Indeed, there is yet a fourth instance where a party may apply for stay of execution and for an order to pay the judgment debt by instalment without filing an appeal against the judgment. Applications for stay of execution and payment of judgment debt by instalment is specifically provided for under Order 41 rule 8 (1) of C.I 47[15]. It is worthy to observe that under the old High Court Rules, though Order 42 mentioned payment by instalment, there was nothing to show that it was in relation to stay of execution. Consequently, for many years, our courts were reluctant to recognize such a provision in our Rules for stay of execution and for payment of judgment debt by instalment.[16] But with time, the grant of orders for stay of execution and payment by instalment received recognition under Order 42 rule 16 (1) (b) of L.N. 140A because, as the courts reasoned, an order for payment of a judgment debt by instalments was an order staying execution conditionally.[17]

In Ghana, the notion that an application for stay of execution pending appeal is separate and distinct from the other grounds for applying for stay of execution before a trial court as set out above is trite knowledge. For example, the distinction was established and amplified by E. D Kom as far back as 1990 in his short but concise book on Civil Procedure. Speaking about what came to be included eventually in C.I 47 in 2004 as Order 43 rule 11 and Order 45 rule 15 (1), Kom noted thus:

“[t]he new Rules have introduced two types of stay of execution when the judgment debtor has not appealed or is not challenging the correctness of the judgment”[18]

In his seminal and arguably, the most comprehensive book on the law and practice of Civil Procedure in Ghana to date, the venerable S. Kwami Tetteh states as follows:

“The power of [a] court to stay execution is distinct from the power to stay execution pending appeal; the principles are markedly different and must be observed”.[19]

The learned author then proceeds to treat the various forms of applications for stay of execution under distinct headings regarding stay of execution and payment by instalment under Order 41 rule 8 (1), stay of execution by fi:fa under Order 45 rule 15 (1), stay of execution on ground of matters which have occurred since judgment was given under Order 43 rule 11 and stay of execution pending appeal under C.I 19.[20]

In the light of the foregoing, the Supreme Court’s assertion that applications for stay of execution pending appeal can be made to the High Court under Order 43 rule 11 and Order 45 rule 15 (1), with all due deference to their Lordships, is totally misconceived in law. Applications for stay of execution pending appeal fall under the ambit of the Court of Appeal Rules (C.I 19 as amended) and not the High Court Rules (C.I 47), as noted by Kom and Tetteh. It is submitted that, once the Supreme Court could not locate any peg in the Court of Appeal Rules on which to hang its ruling in Ex parte Ecobank Ghana Limited, the apex Court should have said so and directed the Rules of Court Committee to restore the old Rules 27 (A) and 28 of C.I 19. Opting rather to take a dive into the High Court Rules for rescue only led the Supreme Court on a path to perdition.

E: Conclusion
The learned trial judge who ruled and declined jurisdiction to entertain the applicant’s application for stay of execution pending appeal on the basis of C.I 132 cannot be faulted in any way. To be fair to the learned trial judge, once the old Rules 27 (A) and 28 had been revoked by C.I 132, the learned judge had no option but to decline jurisdiction. The author had earlier anticipated that, with the revocations made in C.I 132, such rulings were bound to come from the courts.[21] In the circumstances, the Supreme Court’s conclusion that the learned judge should have exercised the Court’s inherent jurisdiction and ‘settled practice’ to cloth herself with jurisdiction to entertain the application for stay of execution pending appeal, even in the face of the express revocation of Rules 27 (A) and 28, was a touch unreasonable. Even with the ruling in Ex parte Ecobank Ghana Limited, it is yet to be seen how parties and the Courts will fare under C.I 132 in its current form.

The Supreme Court has tried its best, indeed, somersaulted, to tame the beast unleashed by the revocation of the old Rules 27(A) and 28 of C.I 19. Perhaps, a better and more lasting solution is for the Rules of Court Committee to eat humble pie and restore the old Rules.

FOOTNOTES
[1] The full citation of the case is Republic v High Court (Commercial Division 9), Accra; Ex parte Ecobank Ghana Ltd (Origin 8 Limited & Greater Accra Passenger Transport Executive (Interested Parties) Civil Motion No. J5/10/2022 unreported decision of the Supreme Court dated 18^th January, 2022.

[2] The Court of Appeal (Amendment) Rules, 2020
[3] The writer put forth a similar conclusion in her article dated 15^th July, 2021 and titled “For better or for worse? : New changes introduced into the Court of Appeal and Supreme Court Rules.” It is available online: https://fsboateng.com/2021/07/15/new-changes-introduced-into-the-court-of-appeal-and-supreme-court-rules/

[4] Court of Appeal Rules, 1997
[5] The revoked Rule 27 (A) of C.I 19 also provided as follows: “The Court may in any interlocutory appeal, civil or criminal before it, grant stay of proceedings pending the determination of the interlocutory appeal subject to such terms as the Court considers fit.

[6] The members of the Rules of Court Committee that birthed C.I 132 were: Anin Yeboah, CJ, Chairperson; Gloria Afua Akuffo, Attorney-General; Victor Jones Dotse, JSC; Victor Ofoe, JA; Charles Baiden, J.; Brigadier General Gyeke-Asante; Margaret Awuku-Gyekye; Justin Amenuvor and Dennis Armah (all members). The Supreme Court panel that gave the ruling in Ex parte Ecobank Ghana Limited comprised of: Anin Yeboah, CJ (Presiding) Pwamang, JSC, Mariama Owusu, JSC, Honyenuga, JSC and Amadu, JSC.

[7] High Court (Civil Procedure) Rules, 2004
[8] Should have read “Order 45 rule 15 (1)”

[9] Dictum of Pwamang, JSC, who delivered the unanimous ruling of the Supreme Court

[10] See cases such as: Alex Adu v The Commissioner- General, Ghana Revenue Authority, Civil Appeal No. J4/21/2014 unreported decision of the Supreme Court dated 10th April, 2014

[11] This provision is in pari materia with Rule 40.8A of the UK Civil Procedure Rules, 1998

[12] [2009] SCGLR 524
[13] [1968] 1 All ER 372
[14] See Ellis v Scott [1964] 2 All ER 987 where it was held that this was a case where there were special circumstances that warranted that the application must be granted.

[15] Order 41 rule 8 (1) of C.I 47 provides: “Where any judgment or order directs the payment of money, the Court may, for any sufficient reason, order that the amount shall be paid by instalments, with or without interest; and the order may be made at the time of giving the judgment, or at any time afterwards by the same or any other Judge and may be rescinded upon specific cause shown at any time.” For cases where the Courts have granted applications for stay of execution and payment of judgment debt by instalment, see: Guaranty Trust Bank (Ghana) Ltd v Western Steel & Forgings Ltd and Others Civil Appeal No. J4/34/2016 31st May, 2017; KMK Ltd & 2 Ors v Agricultural Development Bank & Kumesh Ltd Review Motion No. J7/11/2014 29th May, 2014, SC (unreported)

[16] High [Supreme] Court (Civil Procedure) Rules, 1954 (L.N. 140A). So, in cases like Standard Bank of West Africa Ltd. v Boaitey [1971] 2 G.L.R. 308 and Amo-Mensah v Owusu [1972]1 GLR 251, it was held that the High Court had no power under its Rules to order payment of judgment debts by instalment.

[17] See: Ghana Commercial Bank v Camb Motors Ltd [1982-83] GLR 489; Fiankuma v Cobbina [1991] 2 GLR 369 where, even under L.N. 140A, the Courts recognized orders for stay of execution and for payment of judgment debt by instalments

[18] See: Enoch D. Kom, CIVIL PROCEDURE, 3^rd Ed., 1990 p. 152. For Kom’s exposition on the subject that supports the author’s view that applications for stay of execution pending appeal are separate, distinct and have no relationship with the provisions in the current Order 43 rule 11 and Order 45 rule 15 (1) of C.I 47, see p. 151 and 152

[19] See: S. Kwami Tetteh, CIVIL PROCEDURE, A PRACTICAL APPROACH, 1^st Ed., (2011) at 1050

[20] Ibid at 1050 – 1051 and Chapter 44.
[21] For the author’s earlier article on the new Court of Appeal Rules introduced by C.I 132, see: “For better or for worse? New changes introduced into the Court of Appeal and Supreme Court Rules” available online at https://fsboateng.com/2021/07/15/new-changes-introduced-into-the-court-of-appeal-and-supreme-court-rules/