Published November 4, 2024
Charles Quansah is a legal practitioner currently serving as a Senior Associate at Kulendi@Law
The Supreme Court of Ghana on Friday, 18th October 2024 delivered its ruling on an ex parte application for Stay of Execution of the ruling of the Speaker of Parliament rendered on 17th October, 2023 pending the determination of SUIT NO. J1/01/2025 (Alexander Afenyo-Markin v Speaker of Parliament and Attorney General)
Before delving into the a discussion of the ruling of the Supreme Court, we are inclined to state with literary illumination, the concurring opinion of Sophia Akuffo JSC (as she then was) in the case of Republic v High Court, Koforidua; ex parte Eastern Regional Development Corporation [2003-2004] 1 SCGLR 21 where she highlighted the basic characteristics of civil procedure as follows: complementary by functioning “as a vehicle for the actualisation of substantive law”; protective by promoting “order, regularity, predictability and transparency”; and remedial or practical by facilitating “sound management of litigation and process efficiency”.
Amidst the conundrum of issues raised by some member of the legal fraternity regarding the propriety of the application and the orders made thereto, we venture to consider the nature of the application and the propriety of the procedure adopted by the Supreme Court in reaching the decision on the ex parte application. In doing so, it is crucial to order our thoughts under the following broad aspects of procedural law:
Ex parte Application
Application for Stay of execution
EX PARTE APPLICATIONS
Ex parte is a Latin phrase which means “by or for one party”. In effect, an ex parte application is an application that is mounted or filed by one party in a suit without notice to the other party who by ordinary procedure ought to be notified and be heard on the matter before a decision is given by the Court.
It is important to underscore that civil procedure in our jurisdiction is guided, managed and determined by rules of court or established practices which are not at variance with the law of Ghana in particular, the 1992 Constitution. Below are the rules which govern civil proceedings in the various courts:
Supreme Court – C.I 16;
Court of Appeal – C.I 19
High Court & Circuit Court – C.I 47
District Court – C.I 59
To commence a suit in the Supreme Court, the matter ought to be one which comes within the jealously reserved ambits of the original jurisdiction of the Supreme Court as provided for by a combined effect of articles 2(1) and 130 of the 1992 Constitution.
After commencement, the progression of a lawsuit through the stages laid down by the applicable rules of court is mostly by applications. Under Order 19 of C.I 47, the cardinal principle of applications is that every application must be made by motion and every motion shall be on notice to the other party unless the rules specifically provide otherwise or in circumstances which the Court considers proper to permit an ex parte application. The Court, however, seldom permits ex parte applications where the rules do not make provision for such. The effect therefore is that every ex parte application must be specifically provided for in the Rules of Court at whatever level a suit pends unless the Court considers the circumstances proper to hear an application without notice.
The Supreme Court Rules do not have any provision to this effect. In these circumstances, where there is no rule in the Supreme Court Rules to guide a particular procedure, Rule 5 of CI 16 mandates the Court to prescribe the procedure to be adopted. The said rule reads;
“Rule 5 of the Supreme Court Rules, 1996.
Matters not expressly provided for
Where provision is not expressly made by these Rules regarding the practice and procedure which shall apply to a cause or matter before the Court, the Court shall prescribe the practice and procedure that in the opinion of the Court the justice of the cause or matter requires.”
[See Tony Adams v Anang Sowah (2009) Civil Appeal No; J8/2/2009 delivered on 14th January, 2009, Atuguba, J.S.C.]
Case law shows that the Supreme Court in civil matters adopts the relevant provisions applicable in the High Court Civil Procedure Rules for the circumstances at hand.
This stands to reason that the elementary principle and direction on how applications are made in the Courts, i.e. “every application shall be made by motion and every motion shall be on notice to the other party, unless the rules expressly provides”, is applicable in the Supreme Court.
The jurisprudence underlying the requirement for applications to be made on notice is simply to ensure that one of the basic tenets of the rules of natural justice – audi alteram pattem – is duly complied with. This is especially so where the relief sought by bringing that application affects the rights of the other party who, as of juridical necessity, ought to be heard before an order of that nature is made. This is more so where the suit before the Court and for that matter the reliefs sought are highly contentious. In non-contentious matters and for incidental ones, the practice has been that even an oral application in Court may suffice. But in matters and for reliefs that do not ordinarily flow from such inconsequential state of affairs, the law has always required the benefit of the case of all parties before an appropriate decision is made.
Much dwelling is made in this article on rule 3 of Order 19 of CI 47 which provides the exception to the general rule on notice of applications. The rules provide as follows;
“(1) Subject to rule 1 subrule (3), an application by motion may be made ex-parte where any of these Rules provides or where, having regard to the circumstances, the Court considers it proper to permit the application to be made.
(2) The Court may make an order ex-parte on such terms and subject to such undertaking as it considers just where it is satisfied that delay caused by proceeding in the ordinary way would or might entail irreparable damage or serious mischief.
(3) The Court shall not grant an application made ex-parte under subrule (2) unless the applicant shows to the satisfaction of the Court good reason for making the application ex-parte and the precise nature of the irreparable damage or serious mischief which will be occasioned by proceeding in the ordinary way.”
The thrust of the provisions of sub-rule (1) having been summarised above, the provisions of sub-rule (2) which permits judicial discretion on allowing ex parte motions deserves attention. Such orders are only made on terms and subject to undertakings considered by the Court as just in the circumstances of the action. The elements discernible from order 19(3)(2) are that;
- There is a motion ex parte
- An illustration that proceeding in the ordinary way would cause irreparable damage or cause serious mischief
- Motion is on terms
- Motion is subject to an undertaking
Satisfying the Court with these facts, the Court may grant the Applicant audience on the substance of the motion.
It is a prudent practice that in a motion ex parte, where the relief sought affects the absent party, the Court in order to avoid injustice to the other party ought to be satisfied on facts, not on conjectures, that some irreparable damage or serious mischief will be occasioned.
It is on this score that from the relevant paragraphs of the affidavit in support cited in the ruling of the Supreme Court, it is noted that it is not of a fact that the complained ‘serious mischiefs’ were bound to happen. They consisted of mere conjecturing allegations that the Supreme Court ought not to have indulged in the hearing of the motion ex-parte. As required under rule 3(3), the applicant must demonstrate the precise nature of the serious mischief that WILL be occasioned. The language does not permit suspicions but of incidental and necessarily unavoidable implications.
In paragraph 8(ii) of the affidavit supporting the stay application, the Applicant contended that the temporary loss of Parliamentary representation for the four constituencies in question, caused by the Speaker’s actions, constituted a special circumstance justifying the ex-parte filing. The Supreme Court’s agreement with this argument marks a notable departure from its previous rulings in cases such as Michael Ankomah Nimfah v. James Gyakye Quayson & 2 Ors, where, despite the clear impact on constituent representation, the Court nonetheless restrained the MP from presenting himself as a Member of Parliament pending the case’s final resolution.
In the Gyakye Quayson case, the Supreme Court adopted the view that, although the allegations against the MP were yet to be definitively established, the potential for an unconstitutional occupation of a parliamentary seat represented a far greater constitutional harm than the temporary deprivation of representation for certain constituents. The Court emphasized that the preservation of constitutional integrity outweighed the immediate concern of unrepresented constituencies. Yet, in the present matter, when faced with a comparable risk of unconstitutional occupancy, the Court has, paradoxically, opted to prioritize the avoidance of a lapse in representation, effectively accepting the very constitutional peril it previously sought to prevent. This shift in judicial approach highlights a marked inconsistency in the Court’s treatment of constitutional risks.
It is also unclear whether the applicant also met the requirement of an undertaking under the applicable rule. From the feverish and rushed process as of when the Application was filed and heard, it is abundantly clear, even from the ruling that no order was made in respect of an ‘undertaking’. Admittedly, the concise form and modalities for the undertaking is not set out under the Rules of Court, however, without delving deep into the nature of the undertaking required, inference could be made to the undertaking requirement as exists under order 25 of C.I 47 when the court is injuncting a single party from taking an action which may be inimical to the interest of the other.
APPLICATION FOR STAY OF EXECUTION
An application for Stay of Execution in simple terms is an application to the Court, whether original/trial or appellate, to halt the enforcement of an order of that court due to some special circumstances. In the other words, it is a temporary suspension of an order of a court. The Supreme Court in the case of SETHI BROTHERS GHANA LIMITED v REGENCY ALLIANCE INSURANCE LIMITED (2019) JELR 67474 (SC) adopted the definition of Adade JSC in the case of Oppan v. Frans and Co Ltd [1984-86] 1 GLR 281 CA at page 286;
“…staying execution means suspending the enforcement of a judgment under the procedure prescribed by law for enforcing judgments i.e. in the case of the High Court, Order 42 of LN 140 A”.
With the Supreme Court in particular, the jurisdiction for stay of execution is found in rule 20 of the Supreme Court Rules, 1996 (CI 16) which provides as follows;
“20. Effect of appeal
(1) A civil appeal shall not operate as a stay of execution or of proceedings under the judgment or decision appealed against except in so far as the Court or the Court below may otherwise order.
(2) 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 may repeat the application before the Court for determination.”
Suffice to say that applications for stay of execution are ones which the rules require the applicants to file on notice to the other party. For emphasis, it is a mandatory procedural requirement as far as rules of procedure are concerned.
———————————————————————————————-
LEGAL ANALYSIS ON THE JURISDICTION OF THE SUPREME COURT TO ENTERTAIN SUCH APPLICATIONS
From the above, it could be deduced that the EX PARTE APPLICATION for STAY OF EXECUTION OF THE RULING OF THE SPEAKER OF PARLIAMENT delivered on 17th October, 2024 pending the determination of SUIT NO. J1/01/2025, ALEXANDER AFENYO MARKIN VRS SPEAKER OF PARLIAMENT AND ATTORNEY GENERAL was filed in grave error.
Reasons for this conclusion are not complex
First, a Parliamentary action cannot be subjected to the Court’s jurisdiction by way of a stay of execution. According to the Rules of Court guiding the Supreme Court, the jurisdiction of the Supreme Court for stay of execution applies in the context of appeals from lower courts. This is discernible from the language of Order 20 of CI 16 as quoted above.
It is on this note that the application by effectively metamorphosing a parliamentary procedure into a judicial determination of a lower Court to procure an order of stay of execution stands incompetent and grossly erroneous. In plain language, the actions of the Speaker of Parliament, which was neither a decision nor ruling, but merely an act of “informing” the floor of Parliament of the vacancy in the seats of the four (4) MPs in question, is not a judgment of a Court to make it amenable to orders of stay of execution by any court.
Also, order 21(2) of CI 16 is to the effect that an application for stay SHALL be made to the ‘Court’ below before same would be repeated in the Supreme Court if refused. It is by this reasoning that the Supreme Court is generally not the forum for a first-time application for stay of execution as done by the present application. [See STANDARD CHARTERED BANK GHANA LTD. V. WESTERN HARDWOOD LTD, FARROUK BARRAKEH (2009) JELR 68449 (SC) where Atuguba, JSC in dismissing an application for stay of execution not previously put before the Court of Appeal stated that “This (Supreme) court is, however, a court of law and not a court of arbitrariness.” There is no obliviousity to the fact that if the Supreme Court itself gave an executable order, an application for stay of execution could be filed before the Supreme Court.
In fact, despite the homonymity in terminology regarding the decisions of a Court and the decisions of the Speaker of Parliament, the latter cannot be deemed subsumed by the former because of its lack of judicial power; all of which is vested in the Judiciary and exercised independently by the courts by virtue of article 125 of the constitution, 1992.
Second, the substantive suit, on the back of which the application was brought, is not an appeal to the Supreme Court for which the court has powers to stay proceedings under Order 20 of its rules. The action is an invocation of the original interpretative jurisdiction of the Supreme Court which would, if successful, have a bearing on the state of affairs in Parliament. Nevertheless, to no extent of butchery of legalese does the action amount to an appeal of the decision of the Speaker of Parliament. To note, appeals being a creature of statute, the exercise of an appellate jurisdiction even by the apex Court ought to be grounded in a specific statute. [See Wulensi Parliamentary Election dispute case]. Having inspected the statutes in operation in Ghana, none of such supports the exercise of the appellate jurisdiction of the Supreme Court over the actions of the Speaker of Parliament.
Should it be the position that the Supreme Court by virtue of article 129 may purport to stay execution of judgments or proceedings which are not subject of appeals before the Court, it must be pointed out that the Supreme Court has resiled from that position when it was held in the case of Anang Sowah v Adams [2009] by Atuguba, JSC at page 115 that;
“In recent times there have been dicta in this court that by reason of Article 129(4) of the Constitution and also the alternative part of rule 20(1), a stay can be ordered by this court of proceedings that do not relate to execution of the judgment appealed from. On reflection, we respectfully think that is possible but such proceedings should be in respect of proceedings that stand to be taken by reason of the terms of the judgment appealed from…”
By this, the exercise of jurisdiction by the Supreme Court to stay execution or proceedings which are not presently before that Court is still confined to decisions of Courts and not of non-judicial bodies. As argued supra, the office of the Speaker of Parliament does not constitute a Court for its decisions to be subject of an appeal to the Supreme Court.
Third, from a reading of the ruling of the Supreme Court, the conclusion of the Court’s reasoning based on which the orders staying execution was made is quoted above;
“On the balance of the law, exhibits and facts placed before us, we are satisfied that the duly elected representatives in question were not heard on the extremely critical issue raised and therefore we make the following orders”
At law, by the use of the legalese “were not heard on” on a matter, such reasoning without a doubt refers to the denial of a fair hearing. Regarding this posturing, the Court seems to have assumed judicial review of the parliamentary procedure. Assuming any such decisions are amenable to judicial review of the Supreme Court, the invocation of the supervisory jurisdiction of the Supreme Court in such matters finds no basis in the present architecture of the present application in the face of the substantive suit. The present application brought on the back of a writ invoking the original jurisdiction of the Supreme Court poses great surprise as to how the Court is invited by this application to exercise a purported supervisory jurisdiction in the same breadth.
The conditions for the grant of stay of execution have been established by our Courts, including the Supreme Court. In the case of NDK Financial Services v Yiadom Construction & Electrical Works Ltd. [2007-2008] SCGLR 93 the Supreme Court held as follows:
“The principles for considering an application for stay of execution pending appeal were well settled: the main principle adopted by the courts was what the position of the appellant would be if the judgment was to be enforced and the appeal was successful. In effect, the essential point in considering such application was whether the applicant would be returned to the status quo ante should the appeal succeed. Another determining principle was which of the parties would suffer greater hardship should the application be granted or refused”
Therefore, it is not legally permissible for an application for stay of execution to be filed against a decision made by the Speaker of Parliament. The application is legally flawed, unsustainable, defective and erroneous. If this becomes the case, the Supreme Court will eventually become the “supervisor” of parliament, a distinct arm of government, not only in respect of the constitutionality of laws passed but also the regularity of normal proceedings and processes of parliament. This, if not addressed, has the tendency of committing one of the greatest atrocities against the constitutional underpinning of parliament’s procedural independence as well as the sacred doctrine of separation of powers.
Last, the relief granted by the Court exceeds what was sought by the applicant. It is found in the ruling that the said ruling of the Speaker of Parliament “is hereby stayed pending the final determination of this suit …”.
Concerns of its legal propriety are raised. Can a motion made ex parte on terms to repeat same on notice within ten days and in the absence of an undertaking be granted an applicant on the more beneficial terms of an interlocutory stay of execution pending the final determination of the substantive suit?
Having established that the ex parte application for stay of execution of the ruling of the speaker of parliament was improperly before the Supreme Court, we can conclude that the Apex Court lacked the jurisdiction to hear and grant the said application.
The jurisdiction of the Court, as it is known, is to decide right and also to err. However, this kind of error committed by the apex Court of the land is legally unpardonable as it plunges the practice and procedure of civil matters such as this into judicial darkness.
The Courts are servants of statutes as propounded in cases such as Timitimi v Amabebe (1953) 14 WACA 374. Jurisdiction is no more than the power conferred by statute on a court to deal with a matter. Coussey J.A in Timitimi v Amabebe stated that:
“A court is said to be of competent jurisdiction with regard to a suit or other proceeding when it has power to hear or determine it or exercise any judicial power therein”
The jurisdiction of the Supreme Court to entertain such an application is limited to when the Supreme Court has by itself made an order or a lower court has made an order which is threatened to be enforced but some special circumstances require that such order be stayed temporarily. Such jurisdiction does not possess in and of itself a legally elastic mechanism which can clothe the court with jurisdiction over matters in parliament such as to be able to stay rulings of the Speaker.
Complementing the substantive laws on the jurisdiction of the Supreme Court are the rules of court which have themselves not been adhered to. Undoubtedly, the rules of court are not ornamental pieces but to be complied with, and where non-compliance goes to jurisdiction same cannot be waived as a mere irregularity on the strength of the decision – Tindana (No. 2) v The Chief of Defence Staff (No. 2) [2011] 2 SCGLR 732
CONCLUSION
To conclude, the timeless words of Bamford-Addo JSC in the case of Ghana Bar Association v Attorney-General and Another (Abban Case) [2003-2004] 250 at 266 come in handy and are indeed worth reproducing as follows:
“Jurisdiction is simply the power of a court to hear and determine a cause or matter brought before it, lack of which would render any decision taken or order made null and void and of no effect. If jurisdiction is granted a court by statute, then what is already specified therein determines the nature and extent of that jurisdiction so granted to that court which cannot be extended or modified. Where jurisdiction is wrongly assumed, however, all proceedings taken would be a nullity. For this reason, it is the court’s duty to act within the jurisdiction with which it has been clothed”
The analysis of the law and facts explicitly shows that the Supreme Court erred by entertaining the said ex parte application for stay of execution of the ruling of the Speaker of Parliament rendered on 17th october, 2023 pending the determination of suit no. j1/01/2025, Alexander Afenyo Markin v speaker of parliament and Attorney General by assuming jurisdiction it does not have.
Charles Quansah is a highly skilled legal practitioner currently serving as a Senior Associate at Kulendi@Law. Charles is a dispute resolution lawyer in areas such as commercial litigation, telecommunication law, oil and gas and other minerals law. Beyond his professional work, he is passionate about mentorship, dedicating time to guide and support the next generation of legal professionals.
