RULING

AMADU J.A

On the 21^st day of July 2017, the High Court (Commercial Division) Accra, granted an application filed by the Plaintiff Respondent/Respondent herein (hereinafter referred to as ‘Respondent’) for leave to levy execution. The application before the High Court, according to the Respondent was consequent upon a judgment of the Supreme Court of 13^th February 2008 which had determined in finality the rights of the parties.

In the ruling aforesaid, the High Court, held inter alia as follows:

“The application is granted. Leave is hereby granted the Applicant to levy execution jointly and severally against the Respondent and the Government of Ghana for the sum of U$9,201,815.29 or its Cedi equivalent being the foreign exchange losses incurred by the Applicant as a result of delayed payment of the judgment debt.

Interest shall be paid on the said amount at the Bank of Ghana Dollar rate from 20^th of December 2016, (when the solicitors of the Applicant wrote to Respondent demanding payment of the agreed sum of U$9,201,815.29 up to date of final payment”.

On the 24^th August 2017, the Respondent/Appellant/Applicant (hereinafter referred to as the ‘Applicant’) appealed from the ruling to this court. Consequent upon the said notice of appeal, the Applicant filed an application for extension of time to file its written submission. The Respondent opposed the application per an affidavit in opposition in which a fundamental issue with respect to the propriety of the Applicant’s notice of appeal has been raised in that, the ruling of the High Court being an interlocutory decision, the Applicant’s notice of appeal having been filed after the expiration of twenty-one days (21) from the date of the ruling appealed from as provided under Rule 9(1)(a) of [C.I.19] (as amended), no proper appeal lies before this court with the result that, the Applicant’s application for extension of time is spent.

The Applicant has vehemently opposed the Respondent’s contention. We need place on record that both parties to the application have filed exhaustive affidavits with copious documents to support their respective positions. The issue which has emerged from the Respondent’s affidavit is a threshold issue which goes to the jurisdictional competence of this court to entertain an application founded upon a notice of appeal which in the Applicant’s view is a nullity. The Applicant has deposed to factual matters contradicting the Respondent’s assertion. At the hearing of the application, both counsel addressed the court on the sole question which this court has been invited to answer and which is whether the ruling of the High Court of 21^st July 2017, is final or interlocutory. If we hold that it is interlocutory, then the Applicant’s motion fails in limine. If we hold otherwise, then this court may proceed to hear the Applicant’s substantive motion seeking extension of time to file written submission.

The issue we have been invited to determine is not novel to our jurisprudence. It has confronted the courts over the years and our case law jurisprudence on the subject has developed the approach in determining whether an order or judgment is final or interlocutory. This has been settled by a plethora of judicial authorities.

In the case of NKAWIE STOOL VS. KWADWO [1957] I WALR 241 the court endorsed the nature of the judicial approach in determining whether a decision is final or interlocutory to be “the nature of the order” test as distinct from “the nature of the application” test. This has been followed by a number of decisions on the attitude of the courts in determining the question, the most recent of which is the judgment of the Supreme Court in Civil Appeal No.J4/57/2017 dated 25/10/2017 in the case of AMARKAI AMARTEIFIO VS. ANANG SOWAH. In both decisions above as in other cases between them the courts in our jurisdiction have consistently endorsed the “nature of the order” test as against the “nature of application” test. Therefore, in deciding whether an order of a court is final or interlocutory, the proper judicially acceptable test is not the form of the application which resulted in order, but the order itself. We shall therefore resolve the issue arising from the instant application before us by relying on the guidelines contained in several case law authorities which are binding on this court.

In POMAA & ORS. VS. FOSUHENE [1987-1988] I GLR 244-256. The Supreme Court delivered itself on the issue in the following words: “An inference whether a decision or order was final or interlocutory was dependent essentially on the nature of the decision or order and consequently an the answer to the question whether the decision or order finally disposed of the rights of the parties or the matter in controversy. An interlocutory decision did not assume finally to dispose of the rights of the parties. It was an order in procedure to preserve matters in status quo until the rights of the parties could be determined. The test was not to look at the nature of the application but the nature of the order made”.

Later in time in determining a similar issue before it in the case of FRANCIS ASSUMING & 48 ORS. VS. DIVESTITURE IMPLEMENTATION COMMITTEE & ANOR. [2008] 3 GMJ (Part 3) 35 the Supreme Court while in endorsing the nature of the order approach, reviewed several legal authorities on the subject and adopted a passage in the judgment of the Court of Appeal in the case of KARLETSE-PANIN VS. NURO [1979] GLR 194 as follows:-

“In recent years however, the courts, in this country have veered from Lord Esther’s stand which found favour with Lord Denning, to the test laid down by Lord Alverstone C.J in BOZSOM VS. ALTRINCHAM URBAN DISTRICT COUNCIL [1903] IKB 547. That test was applied in STATE GOLD MINING CORPORATION VS. SISALA [1971] I GLR 359, CA. TAWIAH VS. BRAKO [1973] 1 GLR CA, OKUDZETO VS. IRANI BROTHERS [1975] I GLR 96, CA and recently in ATTA KWADWO VS. BADU [1977] I GLR 1, CA where Apaloo JA (as he then was) said at page 4 that: “The criterion for distinguishing a final from an interlocutory order has come before the courts a number of times and the test generally accepted is that the judgment or order to be final, must finally dispose of the rights of the parties”. In the ASSUMING VS. DIC case (supra). Ansah JSC held that: “For Ghana then, the test is not to look at the nature of the application but at the nature of the order made: See also the statement of Dr. Twum JSC in ATTORNEY-GENERAL VS. FAROE ATLANTIC COMPANY LTD. [2005-2006] SC GLR 271.

In another judgment of the Supreme Court in the case of OPOKU & ORS. VS. AXES CO. LTD. [2011] 1 SC GLR 50, the apex court confirmed the acceptable test applicable in our jurisdiction as posited by ATUGUBA JSC in OPOKU VS. AXES CO. LTD. in Civil Motion No.J7/4/2008 dated 15^th November 2011 which was quoted in extenso as follows:- “The best known test for a final judgment is that it disposes of the rights of the parties in relation to the res litiga. In the course of the trial, the res litiga may assume a new dimension wholly or partly depending on the permissible ramifications of litigation. We are wholly unmoved by a contention that, when a part of a claim has been distinctly ascertained and judgment given as to the rights of the parties in relation to it, without the need for further litigation or adjudicatory process regarding same, such a pronouncement of the court is anything but final……………..”.

10) Having established the acceptable judicial test in our jurisdiction as “the nature of the order” test, we have to examine the order of the High Court subject matter of this legal objection and the submissions of counsel by applying the applicable test. In the submission of the Respondent’s counsel on the issue, he has urged us to hold that it is the earlier judgment of the Supreme Court on the Respondent’s claim which had finally disposed of the rights of the parties. Therefore, any other order consequential to the judgment of the Supreme Court is interlocutory and cannot be construed as final. On the contrary, the Applicant’s counsel has argued strongly that the representations made by the Deputy Attorney-General to the Respondent which advised the Applicant to concede to the Respondent’s demand for foreign exchange losses jointly and severally with the Government of Ghana is extraneous to the earlier judgment of the Supreme Court. Further that, the order which emanated from the ruling of the High Court if subjected to the “nature of the order” test, finally disposed of the rights of the parties with respect to the said claim.

11) From our review of all the affidavit evidence, it is undisputed that the agreed debt, arising out of the earlier Supreme Court judgment, which was eventually paid by the Applicants to the Respondent was Gh₡36,153,348.36. This was paid in two installments of Gh₡19,000,000.00 and Gh₡17,153,384.36 on the 20^th of April 2014 and July 2014 respectively. One would have thought that should have fully settled the claims by the Respondent against the Applicant in respect of the Respondent’s claim determined by the Supreme Court in February 2008. But that was not to be, as the Respondent went to the High Court for leave to levy execution for the sum of $9,201,815.29.00 being foreign exchange losses it allegedly incurred as a result of delayed payment after the Supreme Court judgment. The High Court granted leave to go into execution for this amount. Is this leave to go into execution interlocutory or final? It appears to us that the nature of this order makes it final even though the Respondent proceeded by an application supported by affidavit which originating process usually results in interlocutory orders. As cited already above, the case law authorities are to the effect that, the test is not the nature of the application but the nature of the order that determines the finality or interlocutory effect of the order. Furthermore, whether the relief sought by the Respondent for the $9,201,815.29.00 was a fresh claim against the Applicant or incidental to the earlier determination by the Supreme Court in our view makes no difference to the issue. In fact, what the High Court ordered was a final order granted the Respondent to go into execution for that sum.

12. Consequently, the Respondent’s objection to the Applicant’s motion for extension of time to file written submission on the grounds that the Applicant has no competent appeal before this court and therefore this court has no jurisdiction to entertain the application is misconceived and without merit. It is accordingly overruled.