NOTICE ON MOTION FOR AN ORDER FOR STAY OF PROCEEDINGS PENDING APPEAL

i.          Introduction

[1] This is an application by the 1st and 3rd Defendants/Applicants/Appellants praying this Court to stay proceedings in the instant suit pending the final determination of an appeal filed against an earlier ruling of this Court and pending at the Court of Appeal.

[2] It recalls that on the 4th day of February, 2019 the 1st and 3rd Defendants/Applicants filed a Notice of Motion titled “Motion on Notice for an Order for the Court to Decline Further Jurisdiction in this Action - Order 3 Rule 1(5) of C.I. 47 & the Inherent Jurisdiction of the Court”. The Applicants sought the following orders stated below from the Court;

i. An order to decline further jurisdiction in this action against the 1st and 3rd Defendants on the basis of forum non-convenience.

ii. And for any further order(s) as this Honourable Court shall deem fit and necessary to make.

[3] At the hearing of the application Counsel for the Applicants reiterated the depositions in the affidavit which she had deposed that the Applicants are of the firm belief that “although this Honourable Court is competent to hear any issue bordering on the claim as endorsed on the writ and statement of claim, in this particular matter this Court has to decline jurisdiction to hear and determine this matter on the basis of forum non conveniens and that there is a more convenient forum in the United States of America where the 1st and 3rd Defendants/Applicants are amenable to.”

[4] The Applicants further contended that it is obvious that the rules of Court specifically Order 1(2) of C.I. 47 shall be defeated if the case is entertained in this forum. According to the Applicants the 1st Defendant/Applicant is a newspaper/magazine publisher incorporated under the laws of USA and conducts its business in the USA. They also contended that the article which is the subject matter of the present complaint and action was also printed and published in the USA. Making the case for the 3rd Defendant/Applicant, it was submitted that although he is a Ghanaian, he is ordinarily resident in the USA and has been so for over twenty years and conducts his business there. In effect the Applicants opined that the Courts of the United States of America was the proper forum because they do not live and conducts business in Ghana and that if the Plaintiff wished he should institute his action in the USA against them.

[5] The Plaintiff opposed the application and filed affidavits in opposition to same. This Court heard oral arguments of Counsel on February 27, 2019 and delivered a bench ruling to dismiss the application. I note that in dismissing the application the Court reasoned among others that the premise of the application itself is with respect flawed and incompetent because Order 3 Rule 1(5) of C.I. 47 and the rules of Court use of region is in respect of ‘Region(s) within the Republic of Ghana and not the State of New York or the city of New York’. To that extent I held that New York State cannot by any stretch of imagination constitute a region within the purview of Order 3 Rule 1(5) of CI 47 as submitted by counsel for the Applicant. The Court also reasoned that it ought to be noted that “in this technology world/age carrying on business is not limited to living in brick and mortar houses because business can be done online without a physical office and therefore the time has come for us all to disabuse our minds of the 20^th century business models where an office was limited to a building”. This was after the Court found that from page 6 of the 2016 Edition of the Magazine which contained the impugned article, the 1st Defendant itself provided both a New York address and a Ghana address.

[6] Now, by the instant application the Applicants contend that being dissatisfied with the Court’s ruling they have filed an appeal at the Court of Appeal and they “have been served with Form 2 to settle the Record of Appeal”. The grounds upon which the application is premised are catalogued in a 12 paragraph supporting affidavit accompanying the motion paper and sworn to by Counsel, Effiba Amihere. According to the Applicants “the nature of the appeal is questioning the very foundation of this suit and if successful, although interlocutory, is capable of dismissing the entire suit”. The Applicants further contend that if the proceedings in this Court is not stayed it will put “the 1st and 3rd Defendants/Applicants through unnecessary expense, time and effort and render the appeal nugatory”. It is further deposed that “it is imperative, respectfully for an order to stay the proceedings of this Honourable Court while the Court of Appeal determines the matter on appeal to avoid the situation as stated above”.

The Arguments for and Against the Application:

[7] Arguing in support of the motion, learned Counsel relied on the averments in the affidavit and submitted that what the Applicants are seeking is fundamental and therefore should the matter proceed in this Court while the appeal is pending any decision given by the Court of Appeal shall be rendered nugatory. Ms. Amihere further submitted that “per a Supreme Court decision this is the Court of first Instance for the Applicant to come for such an application”. Suffice to say that Counsel did not cite the name of the case and citation to the Court.

[8] Counsel’s next argument was that should this matter proceed to trial her clients could incur costs defending the matter while the appeal is pending at the Court of Appeal. Based on all of the above Ms. Amihere prayed the Court to grant the application and stay the proceeding pending the determination of the appeal.

[9] Counsel for the Plaintiff/Respondent was only permitted to oppose the application on legal grounds because no affidavit in opposition was filed by the Respondent. The sole argument made was that the instant application should be dismissed on the grounds that the Applicants have failed to demonstrate any exceptional circumstance for the grant of the application. Ms. Yahaya prayed the Court to dismiss the application and award punitive costs against the Applicants.

The Court’s Opinion & Analysis:

[10] I start my analysis by noting that the application did not indicate which rule of Court it was premised and also Counsel in her submission did not indicate orally the rule of procedure the application was premised on. Be that as it may, I am presuming that the Applicants are invoking the inherent jurisdiction of the Court because it is common knowledge that there are two (2) categories of jurisdiction in Ghanaian jurisprudence, the general and the inherent jurisdiction. The general jurisdiction of the High Court is conferred on it by the 1992 Constitution, Article 140 whereas the inherent jurisdiction is by its nature, imbedded in the power of the court to do justice. That power stems not from any particular statute or legislation but from its residual powers to control its proceedings and also meant to provide the court with the requisite agility and flexibility to do justice where there are no statutory or conventional alternatives.

[11] Now, dealing with the application, I wish to state from the outset that the threshold test for granting a stay of proceedings is a high one, requiring the demonstration of extraordinary or exceptional circumstances. I also need to reiterate that, as a general rule, a court has an unfettered discretion under its inherent power to either grant or refuse an application for stay of proceedings and in exercising the discretion several factors are taken into consideration. But, the overriding consideration has always been whether special circumstances exist to warrant any stay of proceedings and on a balance of convenience and hardship.

[12] In IN RE YENDI SKIN AFFAIRS; YAKUBU II v ABUDULAI (1984-86) 2 GLR 226 the Court of Appeal stated the principle that the court had a discretion as to whether to grant or refuse an application for stay and in exercising the discretion a lot of factors must be taken into consideration.

[13] The case R v COMMISSIONER OF INQUIRY (R. T. BRISCOE GH LTD); EXPARTE R.T. BRISCOE (GH) LTD (1976) 1 GLR 166 and ALI YUSUF ISSA (No 2) v THE REPUBLIC (No2) [2003-2004] SCGLR 174 are also the legal authority for the proposition that the court’s discretion to grant a stay of proceedings would only be exercised if there were special circumstances warranting it.

[14] To my mind, the foregoing structures the relative autonomy or discretion that this court is afforded in coming to a decision on the case at bar. With the above legal criteria in mind I propose to answer the vexed issue whether or not to grant the instant application by posing a single question, and it is

a) Whether or not the Applicants have demonstrated that special circumstances exist to warrant an order of stay of proceedings;

[15] Applying the principles enunciated supra to the facts at bar and having exercised the inherent power to scrutinize the pleadings and to determine whether or not the instant application is procedurally sustainable, I hold the respectful view that despite the Applicants high regard for their appeal, to my mind it is much ado about nothing because in my view the appeal does not have the slightest chance of success. That aside with regards to the present application, I am of the view that the Applicants have not demonstrated that there exist any special circumstance for the grant of the application. The following are the reasons for my position.

[16] It is now fairly settled law that an application such as the one at bar ought to be anchored on an appeal challenging the judgment/ruling. This is to enable the Court considering the application to do so by looking at the affidavit evidence as well as the Notice of Appeal in order to make an informed decision. The Notice of Appeal and the affidavit evidence enable the Court to assess the application and if satisfied upon the affidavit or facts provided that the Applicant has filed the appeal not bona fide to test the rightness of the ruling/judgment but for some collateral purpose then the application for stay is to be refused.

[17] In this case apart from the deposition and the submission of Counsel that an appeal is filed and a notice has been served for the settling of the record, a copy of the Notice of Appeal itself was not attached to the instant application. Therefore I have no way of knowing the grounds of appeal and to assess the strength and legal basis of the said appeal. With that in mind, I can only reiterate and adopt the rule enunciated by Osei-Hwere, J. (as he then was) in BRUTUW v AFERIBA & ANOTHER (1979) GLR 566 to the effect that the court would not stay proceedings in the hope that an appeal might succeed; neither will proceedings be stayed without strong reasons where an appeal was tested on a question of law.

[18] Further I note that though in the original application the Applicants conceded that this Court has the requisite jurisdiction to deal with the matter but said this forum is not the convenient forum, they are now contending that this Court lacks jurisdiction to deal with the matter at all because the magazine which published the impugned article has no link to Ghana and the Applicants shall incur costs to litigate the matter here in Ghana. This is certainly very strange and to my mind disingenuous.

[19] In the opinion of this Court the overarching rule is that a bare submission that an appeal has a high chance of success does not constitute exceptional circumstance. In my opinion, the Court in assessing the exceptional circumstances ought to look at the affidavit evidence, the ground of appeal filed vis–à–vis the reasons proffered for the stay of proceedings. As I understand the Applicants their main ground of appeal is that the 1st Defendant is a registered Company based in the United States and the 3rd Defendant is also ordinarily based in the USA. They also say coming to Ghana to contest and defend this suit shall cost them financially.

[20] The Court’s response to the argument that the 1st and 3rd Defendants/Applicants do not do business in Ghana because they are not registered in Ghana and therefore they are not amenable to the jurisdiction of this Court is to only repeat what was said in the earlier ruling to the effect that at page 6 of the Magazine published in May 2016 the Ghana Office address was provided by the Publishers as follows:

“GHANA OFFICE:

Liberty Media Concepts

P.O.Box CT 8054

Cantonments, Accra

Tel: 030-702-0030/030-702-0040”.

[21] Further, I wish to refer and again rely on the British Columbia (Canada) Court of Appeal Decision of EQUUSTEK SOLUTIONS INC. v. GOOGLE INC. 2015 BCCA 215 (Can Lii) where Google made a similar jurisdiction argument on the grounds that as an American registered Company the British Columbia (Canada) Court had no jurisdiction over it and therefore it was wrong for the Court to have granted an injunction against it when it was not a party to the suit. Further, Google contended that the injunction ought not to have been granted because the application against Google did not have a sufficient connection to the Province to give the Supreme Court of British Columbia competence to deal with the matter. Both the Supreme Court and the Court of Appeal of British Columbia Courts concluded that because Google carried on business in the Province of British Columbia through its advertising and search operations, it was sufficient to establish the existence of in personam and territorial jurisdiction over it. The Supreme Court of Canada affirmed the decision when Google Inc. appealed against the decision. See GOOGLE INC. V. EQUUSTEK SOLUTIONS INC. [2017] 1 SCR 824.

[22] Even though the above decision is only persuasive I see no justifiable reason why I should not adopt same from another Common Law jurisdiction. I am persuaded by the reasoning and I adopt same. In this case apart from my conclusion that the Applicants have an office here in Ghana it is also my finding that it gathers information from and disseminates information to Ghana and has a Ghana Cedi price for its sales etc. To my mind the Applicants carry on business in this country as with other African jurisdictions.

[23] Based on the above analysis I answer the question posed above that the Applicants have failed to demonstrate that special circumstances exist in the instant case to warrant the grant of the application.