An application for Stay of Execution of Judgment previously struck out, can only be relisted by an application based on grounds contained in a solemn deposition.
Supreme Court, 21st January, 2015 (Civil Motion: NO.JS/41/2014)
Coram: ATUGUBA, JSC. (PRESIDING), AKUFFO (MS) JSC., BAFFOE-BONNIE, JSC., GBADEGBE, JSC., AKOTO-BAMFO (MRS) JSC.
The Interested Parties in this case obtained a relistment of their motion for stay of execution which had been struck out for want of prosecution. The application for relistment was done orally and the motion for stay of execution was respectively argued and opposed by Counsel for the parties. Upon the grant of the motion for stay of execution, the interested parties applied to the Supreme Court for an order of Certiorari against the decision of the High Court. The Applicants abandoned their relief for Prohibition and limited their application for judicial review to Certiorari. In granting same, the Supreme Court, through Gbadegbe JSC and by a 4:1 majority (Atuguba JSC dissenting), held among others thus:
First, “… as the application for stay was previously struck out, it could only have been restored to the list by an application based on grounds contained in a solemn deposition by the Respondent herein. In our view, it was wrong for the learned trial judge to allow counsel for the Respondent herein to utter from the Bar matters that required proof in a case that was being contested and on the basis of such utterance reverse his earlier decision, particularly when the facts on which his decision was based were contrary to the record of proceedings for that date. In this regard, we do not think that even if … counsel for the Applicant herein had not objected to the relistment of the application, it would have had the effect of conferring jurisdiction on the court as in point of fact there was no such pending application on the docket.”
Second, “… when a court acts in a manner not sanctioned by the settled practice of the court, having regard to the adversarial nature of proceedings in our jurisdiction, it is indeed, an instance or miscarriage of justice as the person affected by the order made consequent upon the said non-compliance is deprived of the benefit of having a reasonable opportunity to answer the application mounted against a regularly obtained order of the court.”
The court also observed that “ … the current unhappy trend in our courts whereby proceedings are conveniently conducted without due regard to the settled practice of the Courts, in a misapplication of the policy of promotion of timely disposal of cases, must be resisted by us in order to ensure compliance with due process requirements.”
In his dissenting opinion, Atuguba JSC referred to Hanna Assi (No.2) v Ghana Refrigeration and Household Products Ltd (No. 2) [2007-2008] SCGLR 161, among others, and held that the application was brought per incuriam of the several decisions of the Supreme Court upholding substantial justice over and above procedural niceties.