BEDSTUY LTD vs. PHOENIX-POWER & ANOR
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
    ACCRA - A.D 2019
BEDSTUY LIMITED - (Plaintiff/Respondent)
PHOENIX POWER - (Defendant/Respondent)
MR. TAREK NASSER - (2nd Defendant/Applicant)

DATE:  9TH JULY, 2019
SUIT NO:  GJ/872/2016
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  ANDREW KHARTEY FOR NANA AGYEI BAFFOUR AWUAH FOR THE PLAINTIFF/ APPLICANT
MR. OSMAN A. GYAN FOR THE 2ND DEFENDANT/ APPLICANT
RULING

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

 

Introduction:

(1) This is an application by the 2nd Defendant/Applicant/Appellant praying this Court to stay proceedings in the instant suit pending the final determination of an interlocutory appeal filed against an earlier ruling of this Court and pending at the Court of Appeal.

 

(2) It recalls that on the 18th day of April, 2019 the Applicant here in’s motion for Misjoinder was dismissed by this Court and cost of GH¢ 3,000 was awarded against Applicant. I note that the Court in that decision concluded that having considered the affidavit evidence and the submission of both Counsel it is evident that, Mr. Tarek Nasser, the Applicant herein is a necessary party to a suit. Now, by the instant application the Applicant contends that being dissatisfied with the Court’s ruling he has filed an appeal at the Court of Appeal and he has been advised that he is not a necessary party to the instant proceedings and therefore any further step taken by the Applicant in these proceedings will be in abject futility in the likely event of his Appeal succeeding.

 

Affidavit Evidence & Counsel’s Arguments:

(3) The grounds upon which the application is premised are catalogued in a 33 paragraph supporting affidavit accompanying the motion paper and sworn to by one Peter Marfo, a Law Clerk in the service of the Law Firm, Agyemang and Associates where Counsel, Mr. Osman Gyan works. The deponent rehashes the facts of the case and stated at paragraph 6 that pursuant to an application by the Plaintiff/Respondent for Amendment of the Writ of Summons and the Statement of Claim, the Court granted the Plaintiff leave to amend the title of the suit to include the Applicant as a party and “thereby effectively joining him as a party”. It is also deposed that the application was made without notice to the Applicant.

 

(4) The affidavit further speaks to how Mr. Gyan came into the matter and the application he filed which culminated in the ruling for which he has filed an appeal at the Court of Appeal. Exhibits named as ExhibitsTN” to “TN5” were attached to the application. According to the Applicant the appeal is not frivolous and has a greater chance of success since the grounds of appeal raises weighty matters of law and facts for determination by the Court of Appeal. It is the case of the Applicant that the Court fell into fatal error when it relied on the search results attached to the Respondent’s Affidavit in Opposition filed on March 4, 2019.

 

(5) The Applicant further contend that the “1st Defendant was a registered business name and a subsidiary of ABBA Group Limited, which facts the Respondent concede to, it was wrongful for the Honourable Court to have concluded that the Applicant herein was its proprietor”. Also, according to the Applicant “should the instant suit proceed to conclusion whilst the Appeal remains pending for determination by the Court of Appeal, same will have the likely effect of prejudicing the outcome of the Appeal and by extension jeopardising the legitimate concerns and interest of the Applicant”.

 

(6) The Applicant has further deposed that he has been advised that there exist exceptional circumstances warranting the exercise of the Court’s discretion in granting a stay of proceedings pending appeal as prayed. It is also the case of the Applicant that he will stand financially liable should the Respondent succeed in its claim against him in these proceedings and therefore it is imperative that the proceedings is stayed pending the determination of the appeal. The other depositions of the Applicant are contained in the affidavit is support filed.

 

(7) Arguing in support of the motion, learned Counsel for the Applicant relied on the averments in the affidavit and submitted that the Applicant is praying that the proceedings be stayed pursuant to Rule 27 of the Court of Appeal Rules and the inherent jurisdiction of this Court. Learned Counsel further submitted that it is the case of the Applicant that “he is challenging his capacity to be sued in the appeal filed”. According to Counsel since the Applicant is protesting his capacity to be sued, this Court should not proceed with the matter. For the capacity argument, Counsel quoted and relied on the case of ASANTE-APPIAH v. AMPONSA ALIAS MANSAH (2009) SCGLR @ 90. In the words of Mr. Osman Gyan “it will be inimical for this Court to proceed when the Applicant’s challenge to his capacity has not been determined”.

 

(8) Counsel’s next argument was that due to the nature of the appeal and what is being sought, same constitute an exceptional circumstance in this case and so this Court should consider same. Counsel quoted and relied on the case of AWUDOME STOOL v. PEKI STOOL [2003-2005] 2 GLR 158 @ 168. Counsel relied on the statement of the law by Ansah JA (as he then was) to submit that the principle stated by the Court of Appeal ought to be applied in this case.

 

(9) Mr. Gyan further submitted that this Court fell into error as per paragraph 25 of the ruling and therefore the appeal filed is not frivolous. Turning to the affidavit in opposition, Counsel submitted that as per the statement of the law in the Awudome Stool Case supra, the Respondent’s position that there are no exceptional circumstances is unsustainable. Counsel submitted that there are exceptional circumstances in this case and therefore this Court ought to stay the proceedings as the Applicant stands liable for a judgment debt should the Court proceed with the matter and the appeal is successful, same shall be rendered nugatory. According to Counsel the object of this application is to hold the scales evenly between the parties. Based on all of the above Mr. Gyan prayed the Court to grant the application and stay the proceeding pending the determination of the appeal.

 

(10) The Plaintiff/Respondent is opposed to the application and has filed an affidavit in opposition through Naa-Amakuma Barnor, one of the lawyers at the office of the Plaintiff’s Counsel. It is averred that except admitted all the allegations of fact are denied. According to the deponent, the Applicant has failed to prove the existence of exceptional or special circumstances to justify the grant of the instant application. It is further deposed by the Plaintiff/Respondent that “this Court will not stay proceedings on the mere account of the pendency of an appeal or indeed on the Applicant’s estimation that the appeal has a great chance of success”.

 

(11) The Respondent also contends that “indeed, this Honourable Court in dismissing the application for misjoinder, exercised its discretionary power properly by considering all the relevant materials placed before it and also, applying the relevant laws. Hence there is no basis for the Appellate Court to overturning the said decision”. The Respondent has further deposed that even if the appeal has a great chance of success, continuing with the matter will not render nugatory because the suit continued.

 

(12) It is also the case of the Respondent that “it is trite learning that the misjoinder of a party to a suit does not defeat the proceedings and this Court may at any stage of the proceedings, on its own, make an order to have a party improperly joined, or who has ceased to be a necessary party, struck out as a party to the suit”. To that extent it is the contention of the Respondent that should the Applicant succeed with his appeal the effect is that he will be struck out as a party to the suit and also any cost awarded against him shall be struck out.

 

(13) Finally, the Respondent has deposed that the Court should not be impeded in the conduct of the suit by such an interlocutory application because it has the tendency to delay justice to the parties. To the Respondent therefore it is important that the instant application should be dismissed so that the suit continues to its logical conclusion.

 

(14) Arguing for the dismissal of the application, learned Counsel first submitted that the Respondent relies on all of the depositions in the affidavit in opposition and submitted that this case has nothing to do with capacity but rather it is a matter that revolves the issue of misjoinder of a party to a suit. Counsel referred to the case of GARRETT v. GARRETT [1991] 2 GLR 366 and posited that whilst it is true that the AWUDOME STOOL Case referred to by the Applicant is good law he submitted that such an order ought to be made in exceptional circumstances.

 

(15) Counsel further submitted that by paragraph 29 of the affidavit in support the Applicant says there exist special circumstance but it does not demonstrate what constitute the said special circumstance. According to Mr. Khartey the instant application is one of the instances that made Amegatcher, JSC to lament in the case of ATUGUBA & ASSOCIATES v. SCIPION CAPITAL (UK) LTD AND HOLMAN FENWICK WILLIAN LLP CIVIL APPEAL NO. J4/04/2019 delivered April 3, 2019 when he said an interlocutory appeal had travelled to the apex Court when the substantive matter has been comatose for two years at the trial Court adding to the backlog of cases awaiting trial.

 

(16) Based on all of the above, Counsel submitted that the instant application should be dismissed and punitive costs awarded against the Applicant on the grounds that it has failed to demonstrate any exceptional circumstance for the grant of the application.

 

The Court’s Opinion & Analysis:

(17) I start my analysis by noting that according to the Applicant the application is premised on Rule 27 of the Court of Appeal Rules and the inherent jurisdiction of the Court. It is common knowledge that there are two (2) categories of jurisdiction in Ghanaian jurisprudence, the general and the inherent jurisdiction [1]. 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.

 

(18) It is also now a settled law that the court has an inherent power to see to it that its procedures are either not abused or misapplied [2]. It should also be noted that the court also has the power to prevent the improper use of its machinery from being used as a means of vexation and oppression in the process of litigation [3]. The category of cases in which the court may invoke its inherent jurisdiction is at large and cannot be closed, as each case depends upon its own facts. It should be noted however that, the Court’s inherent powers cannot be exercised in direct contravention of clear provisions of a statute and/or the Constitution of the land.

(19) 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.

 

(20) 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. In my view the exercise of discretion is based on the overriding principles of fairness and reasonableness.

 

(21) 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.

 

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

 

(23) 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 should be granted, I am of the view that the Applicant has not demonstrated that there exist any special circumstance for the grant of the application. The following are the reasons for my position.

 

(24) First and foremost I agree with Counsel for the Applicant that it is indeed the settled rule of law that the capacity of a party to mount an action may be challenged at any time, and even on appeal. The case of YORKWA v DUAH (1992-93) GBR 278 C/A illustrates the principle that where a person’s capacity to initiate an action was in issue it is no answer to give him a hearing on its merits even if he had a cast-iron case. See also the Supreme Court case of FOSUA & ADU-POKU v. DUFIE (Deceased) & ADU-POKU MENSAH [2009] SCGLR 310 where His Lordship Dotse JSC opined that “Want of capacity is a point of law which, if raised, goes to the root of the action”.

 

(25) Having reviewed the pleadings and arguments of Counsel and the case law cited, in my respectful opinion, this matter is not about capacity as boldly submitted by Learned Counsel for the Applicant. To that extent I agree with Counsel for the Respondent that the Applicant has misconstrued the issue before the Court. To my mind the issue is whether or not the Applicant, Mr. Tarek Nasser is a necessary party to the suit and whether or not his presence shall assist this Court to effectively and effectually conclude all matters in controversy in this suit and not “a capacity” issue. I have looked at all of the cases cited by Counsel for his capacity argument and they are all cases that dealt with a Plaintiff’s capacity to sue. It cannot be the case that a Defendant lacks the capacity to be sued, but rather whether or not a Defendant is a necessary party to a suit.

 

(26) In this case I have looked at the application filed and also reviewed the submission of Counsel together with the Notice of Appeal filed. In my view the Applicant has just rehashed the arguments made when the 2nd Misjoinder application which is the subject matter of this application was heard by this Court. This Court delivered its opinion and therefore has no basis to speak to the appeal filed, the respected Justices of the Court of Appeal are best suited to deal with it. 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.

 

(27) 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 it, one of the Applicant’s main ground of appeal is that the Court fell into error for relying on the search result conducted by the Plaintiff at the Registrar General. To the Applicant, this Court should not have relied on the search result because the document “was palpably ambiguous on the face of it”. The Court’s response is that the Court of Appeal shall pronounce on the said exhibit as part of its consideration of the appeal.

 

(28) In response to the Applicant’s deposition at paragraph 31 of the affidavit that should the suit proceed it would put the Applicant “to unnecessary expense as well as it being a colossal waste of the time of the Applicant, the Court and the other parties” to the proceedings, I wish to state that in dispensing justice to a party who has come to Court can never be a waste of the Court’s time.

 

(29) Further, I wish to state that the 1st Defendant which is represented separately by another Counsel and the Plaintiff are entitled to have the matter heard timeously. The 2nd Defendant’s desire to pursue the interlocutory appeal ought not to stop the Court from proceeding with the matter for after all the Defendants have not been sued jointly and severally. To my mind, all of the arguments advanced by the Applicant are those made when the application was moved. Therefore, 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.

 

(30) I am not unmindful of the Applicant’s argument that the denial of the application will force it to file responding materials which will arguably result in additional expenses whilst his appeal is pending etc. In my view I have demonstrated quite sufficiently why this application should be refused the Applicant’s arguments withstanding. To my mind it cannot be denied that every litigation is expensive and can be inconvenient but those alone cannot and should not trump over any individual’s right to seek justice in Court. In the same way that the Applicant has the right to pursue his appeal I am of the opinion that the Plaintiff is also entitled to have its claim determined.

Cost of GH 1,000 against the Applicants.

 

 

CASES REFERRED TO

ASANTE-APPIAH v. AMPONSA ALIAS MANSAH (2009) SCGLR @ 90

AWUDOME STOOL v. PEKI STOOL [2003-2005] 2 GLR 158 @ 168

GARRETT v. GARRETT [1991] 2 GLR 366

ATUGUBA & ASSOCIATES v. SCIPION CAPITAL (UK) LTD AND HOLMAN FENWICK WILLIAN LLP CIVIL APPEAL NO. J4/04/2019

IN RE YENDI SKIN AFFAIRS; YAKUBU II v ABUDULAI (1984-86) 2 GLR 226

R v COMMISSIONER OF INQUIRY (R. T. BRISCOE GH LTD); EXPARTE R.T. BRISCOE (GH) LTD (1976) 1 GLR 166

ALI YUSUF ISSA (No 2) v THE REPUBLIC (No2) [2003-2004] SCGLR 174 YORKWA v DUAH (1992-93) GBR 278 C/A

FOSUA & ADU-POKU v. DUFIE (Deceased) & ADU-POKU MENSAH [2009] SCGLR 310.

BRUTUW v AFERIBA & ANOTHER (1979) GLR 566

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