IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
ACCRA - A.D 2019
THE REPUBLIC - (Plaintiff)
DR NII KOTEI DZANI AND OTHERS - (Respondent)
EX PARTE: PROF COLLINS FOSU - (Applicant)
DATE: 16TH JULY, 2019
JUDGES: DR. RICHMOND OSEI-HWERE, J
KWASI AFRIFA FOR AMA ASENSO FOR THE APPLICANTS -
JAMES MARSHALL BELIEB FOR PROSPER NYAHE FOR RESPONDENTS -
This is an application for stay of proceedings in respect of the instant contempt application pending before this court.
On 31st May, 2019 during the hearing of the contempt application, counsel for the respondents, Archie Danso Esq. raised a preliminary legal objection against the propriety of the contempt application. After hearing both counsel the court overruled the preliminary legal objection on that ground that “Counsel's submissions are with all intents and purposes, a defence to the substantive allegation and that does not in any shape or form pass the test of a preliminary legal argument that can bring the application to a halt.”
Aggrieved by the decision of the court, the Respondents/Applicants (hereinafter called Respondents) have appealed against the decision of the court per a Notice of Appeal filed on 12/06/2019. On the same day the Respondents filed a Motion on Notice for stay of proceedings pending the determination of the appeal.
The main ground of the application is that since this is a contempt proceeding and there is the possibility of imprisonment resulting from it. It is necessary that the Court of Appeal determines their objection else their possible incarceration will render the success of the appeal nugatory. Counsel for the Respondents cited the case of Ghana National Trading Corporation v Baiden (1987/88) 2GLR 163, Holding 3 and argued that the danger of the Respondents suffering injustice if the proceeding is not stayed constitutes a special circumstance which warrants the grant of stay of proceedings.
The Applicant/Respondent (hereinafter called the Applicant) is opposed to the application. It has demonstrated the basis of his opposition in an affidavit in opposition to the motion filed on 14/06/2019. It is Applicant’s contention that the appeal is not likely to succeed and that the instant application is aimed at stultifying the hearing of the contempt application. The Respondent also contends that the application is incompetent not having been filed by the Lawyer on record who at all times material has been Archie Martin Danso (Jnr) Esq. of Archie Danso & Associates rather than the present Lawyer who practices from an entirely different law firm. Counsel for the Applicant submitted that the matter before this court is the contempt application and that the said Prosper Nyahe Esq. who has filed the instant application is not known to this court and in this matter.
On the substantive application, counsel for the Applicant cited the case of Republic v Committee of Inquiry (R T Briscoe Ghana Ltd); ex parte R T Briscoe (Ghana) Ltd (1976) 1 GLR 166, Holding 2 and submitted that an application for stay of proceedings must demonstrate that the appeal has an excellent chance of success and the Respondents have failed to demonstrate that fact, in the instant case.
Motion for stay of proceedings is filed where the applicant desires that the trial or hearing should be stopped while he pursues an aspect of the case in an appellate court or the same court. However, the mere fact that the applicant has appealed against a ruling or order of the court in an interlocutory matter during a civil trial shall not entitle him or her to stay of proceedings. The Court of Appeal held in Garrett v Garrett  2GLR 366, CA as follows:
“It is our view that while a party who is aggrieved by a ruling of a court has a right to appeal, that appeal should not automatically justify an order staying proceedings before that court pending the determination of the appeal. We think such an order should be made in very exceptional circumstances such as where there is a likelihood that the subject matter of the dispute may be irretrievably lost before the determination of the appeal”.
It is entirely within the discretion of the court to grant or refuse an application for stay of proceedings. In determining the application for stay of proceedings, the court must ensure that there are special circumstances warranting a stay. In Republic v Committee of Inquiry (R T Briscoe Ghana Ltd); ex parte R T Briscoe (Ghana) Ltd (1976) 1 GLR 166 the court held that the mere allegation that there had been misdirection or series of them would not be deemed special circumstances to grant a stay of proceedings pending appeal. The court was of the opinion that those alleged errors could be fully canvassed when the merits of the appeal are gone into at the appropriate time committee.
I have assessed the affidavit evidence before me and submissions by both counsel and I hold that the Respondents have not canvassed the requirement of special circumstances to warrant the stay of proceedings.
On the competence of Prosper Nyahe Esq, to file this application, it is clear that the Respondents did not reengage Archie Danso Esq. to represent them at the Court of Appeal in the interlocutory appeal but they rather engaged Prosper Nyahe Esq. In such a situation, because “a notice of appeal is an originating process that may be likened to a writ of summons” a notice of change of representation is not required to be filed at the Court of Appeal under the law. See Tindana v Chief of Defence Staff  1 SCGLR 732
The situation is, however, different when it comes to this court and the proceeding herein. Since Archie Danso Esq. has not withdrawn his representation of the Respondents in the contempt application before this court, no lawyer can file a process relating to the pending contempt application. Order 75 rule 3 expresses the position of the law as follows:
“Where a party changes the party’s representation under rule(1),(2) or (3), the party or the lawyer, if any, school
(a) File a notice of the change at the registry of the appropriate Court; which notice shall indicate the number and the date of the current practicing licence of the lawyer; and
(b) Send a copy of the notice, indorsed with a statement that the notice has been duly filed in the registry, to the former lawyer, if any, and to every other party who is not in default as to filing of appearance.
(2) A notice of intention to act in person shall contain an address for service of the party giving the notice.”
Thus the instant application is incompetent and unmeritorious. It is for these reasons that I dismiss the application.
Costs of GHC 3,000.00 awarded against the Respondents.