Owusu v. Addo: An Unnecessary Hurdle In The Pursuit Of Justice

Summary: The author considers the impact of the Supreme Court’s strained and narrow interpretation of the word “judgment” in Article 131 in Owusu v Addo on the pathways for appealing against decisions to the Supreme Court. As the decision provides, special leave is required in appealing against decisions not “judgments” from the Court of Appeal to the Supreme Court. The author considers this interpretation as imposing an undue burden on litigants.

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1.Introduction

Appeals are creatures of statute. Unless a statute confers a right of appeal, no litigant can lawfully assert same. In cases where the right of appeal is subject to the fulfilment of conditions, those conditions must be fulfilled before a party can invoke the appellate jurisdiction of the court.

In our jurisprudence, a party against whom an executable decision has been given by the Court may apply for stay of execution of that judgment. The application for stay of execution must be filed at the trial court and if unsuccessful, the application may be repeated at the appellate court. Where the trial court is the High Court, the party seeking to stay execution of the decision of the court must first file a Notice of Appeal against that decision and then bring an application for stay of execution at the High Court. If the application for stay of execution is unsuccessful at the High Court, that person may repeat the application at the Court of Appeal.

This article discusses the litigant’s right of further appeal to the Supreme Court concerning the Court of Appeal’s refusal of its application for a stay of execution, in the context of the judgment by the Supreme Court in the case of Owusu v Addo[1]

 2.Facts in Owusu v Addo

The relevant facts of this case were succinctly set out in the judgment of the Supreme Court and is captured as follows: On 5th September 2012, the Fast Track Division of the High Court, Accra, delivered judgment in favour of the Plaintiffs/Respondents (Respondents), inter alia, for declaration of title to a parcel of land at Achiaman, near Amasaman, damages for trespass, recovery of possession, and perpetual injunction restraining the Defendant/ Defendants/Appellants (Appellants) “their grantees, licensees, workmen, servants, successors in title and privies whatsoever from entering, remaining on or in any way encumbering the land or any part thereof or undertaking any construction or other work thereon inconsistent with the absolute ownership, possession and / or enjoyment” of the Respondents.”

Being dissatisfied with the decision, the Appellants promptly lodged an appeal against it to the Court of Appeal. Their applications for stay of execution of the said judgment to the trial High Court, and the subsequent repeat application to the Court of Appeal, were however dismissed by the respective courts. The Appellants therefore filed an appeal against the decision of the Court of Appeal on the stay of execution and proceeded to file an application for stay of execution pending the determination of that appeal at the Supreme Court.

At the hearing of the application for stay of execution pending appeal, the Supreme Court suo motu asked the Counsel for the Parties to address it on the competence of the appeal in the light of the provisions of Article 131 of the Constitution and Section 4 of the Courts Act, 1993, Act 456.  The Supreme Court stated as follows:

“However, it is the procedural imperatives that govern appeals of this kind that has engaged our minds. We had in the past glossed over a critical legal gateway that all appellants must first satisfy and assumed jurisdiction without questioning the competence of appeals filed which have not fulfilled this important pre-condition which we are about to discuss.”

 3.Decision by Supreme Court

The Supreme Court, per Georgina Woode CJ, held that:

“The right to appeal to this court in respect of an order of the Court of Appeal, dismissing a repeat application for stay of execution, is not an automatic right but one carefully circumscribed by article 131 (2) of the 1992 Constitution and s.4 (2) of the Courts Act, 1993, Act 459. It is a right exercisable by special leave, as the appellants counsel honourably conceded when at a further hearing, we invited him to address us on whether the right to appeal is of right or subject to the grant of this court’s special leave as pertinently provided under s. 4 (2) of  Act 459.”

After applying the position of the law to the facts before her, the learned Judged concluded as follows “It follows that appellants ought to have first obtained special leave, per s. 4 ss (2) of Act 459 before proceeding to submit their appeal to this forum.”

We will proceed to analyse this decision in the light of the relevant provisions of the law and generally accepted principles of constitutional and statutory interpretation.

4.Appraisal

4.1 Right of Appeal

As stated in the introduction, an appeal is a creature of statute. Where a statute confers a right on a party, that right cannot be taken away unless by express provision in the statute. We will reproduce the provisions on appeals to the Supreme Court from the Court of Appeal.Article 131 of the 1992 Constitution provides as follows:

(1) An appeal shall lie from a judgement of the Court of Appeal to the Supreme Court-

(a) as of right in a civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction; or

(b) with the leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest.

(2) Notwithstanding clause (1) of this article, the Supreme Court may entertain application for special leave to appeal to the Supreme Court in any cause or matter, civil or criminal, and may grant leave accordingly.

Section 4 of the Courts Act, 1993, (Act 459) also provides that:

(1) An appeal shall lie from a judgment of the Court of Appeal to the Supreme Court—

(a) as of right, in any civil or criminal cause or matter in respect of which an appeal has been brought to the Court of Appeal from a Judgment of the High Court or a Regional Tribunal in the exercise of its original jurisdiction;

(b) with the leave of the Court of Appeal, in any other cause or matter, where the case was commenced in a court lower than the High Court or a Regional Tribunal and where the Court of Appeal is satisfied that the case involves a substantial question of law or is in the public interest;

(c) as of right, in any cause or matter relating to the issue or refusal of writ or order of habeas corpus, certiorari, mandamus, prohibition or quo warranto.

(2) Notwithstanding subsection (1) of this section, the Supreme Court may entertain an application for special leave to appeal to the Supreme Court in any cause or matter (including interlocutory matter) civil or criminal, and may grant leave accordingly.

One will notice that the provisions of Section 4 of Act 459, reproduced above is almost a reproduction of the constitutional provision save the inclusion of (including interlocutory matter) in section 4 (2) of the Act 459.The decision in Owusu v. Addo appears to turn on the distinction between a judgment and order as given by the High Court. The Court stated thus:

“An even cursory examination of this instant appeal and indeed others that have arisen from orders flowing from repeat applications to the Court of Appeal, particularly dismissal orders, demonstrates clearly that these decisions, or orders, are neither judgments of the High Court nor Regional Tribunal in the exercise of their original jurisdiction.”

The author humbly submits that if the Supreme Court had relied on the definition of an “order or judgment” in the Courts Act, the Court would not have adopted a construction which imposes “a critical legal gateway that all appellants must first satisfy”.

Article 295 of the Constitution, 1992 defines ‘JUDGMENT’ to include ‘an ORDER’ or ‘DECREE’ of the court. The word ‘judgment’ as used in Article 131 (1)(a) therefore applied mutatis mutandis to an ‘order’ or a ‘decree’. No distinction was made with regard to the nature of the order or decree in question.

Judgment is also defined in Section 99 of Act 459 as “a judgment or order given or made by a court in any civil proceedings or judgment, or order given or made by a court in any criminal proceedings for the payment of a sum of money in respect of compensation or damages to an injured party;

Again, Section 99 defines “judgment given in the High Court” to include judgment given on appeal against that judgment”.

The definition of “judgment” in Act 459 will therefore mean any decision made by a High Court or Court of Appeal in respect of any civil proceedings, interlocutory or final, before it.

From the two provisions discussed above, a Party has an automatic right of appeal against the decision of the Court of Appeal to the Supreme Court in respect of a judgment from the High Court. In other words, if a Party is dissatisfied with the decision of a High Court, whose original jurisdiction was invoked in a matter and that party appeals to the Court of Appeal, that Party has a right (without seeking leave) to appeal to the Supreme Court against the decision of the Court of Appeal.

It can be observed from the reading of subsection 2 of section 4 of Act 459 that it is that provision which introduces the requirement of special leave to appeal to the Supreme Court. Section 4(2) begins with the words “notwithstanding subsection (1)…”. A careful reading of subsection (1) will indicate that only paragraph (b) deals with appeal from a judgment of the Court of Appeal to the Supreme Court with leave of the Court of Appeal. The entire provision of section 4(1) is intended by the legislature to be “in accordance with Article 131 of the Constitution”. Does the interpretation the Court gave to section 4(2) in Owusu v. Addo accord with the substantive right of parties to appeal as of right from a decision of the Court of Appeal to the Supreme Court which emanated from the High Court in the exercise of its original jurisdiction?

On the other hand, where the matter is commenced in a court lower than the High Court, any person dissatisfied with the decision of the Court of Appeal on the matter, will need leave of the Court of Appeal before that person can exercise his right to appeal against that decision to the Supreme Court. This is applicable for example in :

  1. Civil cases commenced in the District Court and for which the appellate jurisdiction of the High Court has been invoked.
  2. Criminal Cases commenced in the Circuit Court and for which the appellate jurisdiction of the High Court has been invoked.
  3. Cases commenced before other adjudicating fora like the National Labour Commission for which an appeal lies to the Court of Appeal.

Where a civil action is commenced in the Circuit Court, a right of appeal lies in the Court of Appeal and not the High Court. In such instances, the provisions of section 11 of Act 459 will apply thus:

(4) A person aggrieved by a judgment of a Circuit Court in a civil cause or matter may appeal against the judgment to the Court of Appeal.

(5) A person aggrieved by any interlocutory order or decision made or given by a Circuit Court may appeal to the Court of Appeal against the order or decision with the leave of the Circuit Court and upon a refusal with the leave of the Court of Appeal and the Court of Appeal shall have jurisdiction to hear and determine any such appeal.

From the foregoing, the only instance where the term special leave is used is in Article 131 (2) and Section 4 (2). We will now proceed to profer our interpretation of the phrase special leave.

4.1 When Will Leave Be Special?

As has been stated, where a statute confers a right on a Party, that right should not be deemed to have been taken away in the absence of clear words in a statute to that effect. The right of Parties to appeal to the Supreme Court has been clearly set out in the applicable laws provided above. Where the framers of the law intended that the leave of the Court of Appeal must be sought before an appeal is filed to the Supreme Court, the framers would have been very clear on that requirement.

When then will special leave be required?

In interlocutory decisions from the Circuit Court, the leave must first be sought from the circuit court and if refused, the leave could be sought from the Court of Appeal.

It can be observed from the provisions of law reproduced above that there is no room for a Party to seek “another leave” from the Supreme Court, in the event that the Court of Appeal refuses that person leave. Should we conclude then that the framers of the law intended that where the Court of Appeal refuses leave, a party has no other avenue to seek leave?

It is our humble opinion that that would not be the case since it will mean that the jurisdiction of the Supreme Court as the final appellate court in all matters except as expressly provided by law, will be undermined.

The author, therefore, posits that the “special leave” required from the Supreme Court before an appeal could be filed against the decision of the Court of Appeal, should only come to play in situations where the appeal to the Supreme Court itself required the leave of the Court of Appeal and when the Court of Appeal refuses to grant leave, a Party may apply to the Supreme Court for the special leave to appeal to lodge an appeal from the decision of the Court of Appeal.

The requirement of special leave should therefore not be required, as held in the Owusu v Addo case, to cases where no leave of the Court of Appeal is ordinarily needed to lodge an appeal to the Supreme Court.

This proposition is fortified by the fact that it has always been the practice that Parties did not need leave of the Court of Appeal to appeal against a decision of the Court of Appeal when the matter emanated originally from the High Court. There is a presumption against interpreting statutes to jettison well settled practice except in clear circumstances of contrary statutory prescription. In the case of Ohene – Mensah v Subin Timber Ltd[2], it was held that “There has always been a presumption against the changing of existing law in the absence of clear and unambiguous provision to that effect in a statute”.

5.The Decision in NDK Financial Services Ltd v Ade Coker[3]

The Supreme Court in the NDK Case had another opportunity to reconsider   its earlier decision in Owusu v Addo and the law generally on the special leave.

The facts were that after a judgment had been delivered, the Parties entered into terms of settlement which compromised the said judgment. The Terms of Settlement was subsequently adopted as a consent judgment. However, the Judgment Debtor defaulted in paying the debt arguing that the interest had been wrongly calculated. The High Court Judge subsequently ordered the Parties to appear before the Registrar of the Court to calculate the interest accruing on the judgment debt. The Respondent, dissatisfied with the ruling of the High Court Judge, successfully appealed to the Court of Appeal. The Appellant therefore appealed to the Supreme Court against the decision of the High Court.

In considering the regularity of the appeal process, Appau JSC stated the issue for the court’s consideration as follows:

“The issue that surfaces for determination in the instant matter is; whether or not the appeal that was filed as of right in this Court by the appellant is a civil cause or matter in respect of which an appeal has been brought to the Court of Appeal from a judgment of the High Court in the exercise of its original jurisdiction. If the appeal is a civil cause or matter in respect of which an appeal had been brought to the Court of Appeal from a judgment of the High Court in the exercise of its original jurisdiction, then as counsel for the appellant rightly contended, he did not require any leave of the Court of Appeal or the special leave of this Court to appeal as provided under article 131 (2) of the Constitution and section 4 (2) of the Courts Act, 1993 [Act 459] but rather he could appeal as of right as provided under article 131 (1)(a). However, if the appeal to this Court is not a civil cause or matter in respect of which an appeal had been brought to the Court of Appeal from a judgment of the High Court in the exercise of its original jurisdiction, then the appellant should have sought the special leave of this Court as provided under article 131 (2) of the Constitution, section 4 (2) of the Courts Act, 1993 [Act 459] and rule 7 (4) of the rules of this Court [C.I. 16].

The learned Judge went on to hold as follows:

“Having carefully perused the record before us, it is our firm conviction that though the appeal before us is a civil cause or matter, it is not one in respect of which an appeal had been brought to the Court of Appeal from a judgment of the High Court in the exercise of its original jurisdiction as provided under article 131 (1)(a) of the Constitution.”

The Supreme Court thus concluded that “Clearly, the appeal to the Court of Appeal against the post-judgment ruling of the High Court in respect of the compromised judgment entered into by the parties is not in respect of an appeal brought against the judgment of the High Court in the exercise of its original jurisdiction so the appellant could not have appealed as of right. This is one of the causes or matters envisaged under Article 131 (2) of the Constitution and Section 4 (2) of the Courts Act which demand that leave be sought first from the Court of Appeal and upon refusal, special leave from this Court as provided under rule 7 (2) of C.I. 16 or to apply for special leave directly from this Court without necessarily applying for leave of the Court of Appeal as provided under rule 7 (4) of C.I. 16. Having failed to comply with the constitutional and statutory provisions re-called supra, the appeal cannot be sustained as our jurisdiction has not been properly invoked by the appellant.”

Though the Supreme Court in the NDK case referred to the decision in the Owusu v Addo case, the Supreme Court did not expressly state whether it was upholding or departing from the ratio in the Owusu v Addo case. Appau JSC only sought to distinguish the facts in the Owusu v Addo case from the facts of the NDK case. It is humbly submitted that the ratio in the NDK case, to the extent that it held that post judgment orders by a High Court (which will include stay of execution orders) such as ordering Parties to appear before a Registrar of the Court for reconciliation,  were not made in the exercise of the ordinary jurisdiction of the High Court, did not lessen the burden of parties faced with the hurdle imposed on them by Owusu v Addo.

6.Conclusion

The difficulty with the effect of the decision in Owusu v Addo was not lost on the Supreme Court. The learned Judge in arriving at that conclusion held “Understandably, this places on them a rather onerous burden, given that they have to convincingly argue the likely success of their intended appeal within the special leave application process.”.

The author is of the opinion that,  had the Supreme Court adverted its mind to all the other principles of statutory interpretation outlined in this article, it would not have placed this burden on litigants and their Counsel as such. It is apparent that the Supreme Court’s construction of section 4(2) of Act 459 to impose “a critical legal gateway that all appellants must first satisfy”, did not take into account the Court’s own caution in Republic v. Fast Track High Court, Accra, Ex parte Daniel[4], where Kludze JSC held that

“even in the area of statutory interpretation, we cannot amend a piece of legislation because we dislike its terms or because we suppose that the law giver was mistaken or unwise. Our responsibility is greater when we interpret the Constitution. We cannot and must not substitute our wisdom for the collective wisdom of the framers of the Constitution.”

Photo by Aaron Burden on Unsplash

[1] [2015-2016] 2SCGLR 1481

[2] [1982-83] GLR 601 at page 605

[3] Suit No J4/15/2018

[4] [2001-2002] SCGLR 620


The Writer is the Lead Consultant with Robert Smith Law Group, a boutique law firm based in Accra and assists with the teaching of Civil Procedure at the Ghana School of Law, Makola Campus-Accra. He is also Fellow of the Chartered Institute of Arbitrators.