Injunctions Pending Appeal: When and How To Invoke The Jurisdiction Of Appellate Courts

1. Introduction

Injunction applications are very common before trial courts. In litigation over land, the Plaintiff often files an injunction application almost at the same time that she files the Writ of Summons and Statement of Claim. 

The High Court’s jurisdiction to entertain injunction applications pending the final determination of a matter raises is without dispute. An injunction application could be made ex parte, culminating in the grant an injunction for an interim period of 10 days. In practice, the injunction application may be repeated on notice: after which the trial judge may grant the application on terms pending the final outcome of the matter. 

The procedure for applying for an order of injunction is set out plainly in Order 25 of the High Court (Civil Procedure) Rules, 2004, CI 47. Order 25 rule 1 provides as follows

 (1) The Court may grant an injunction by an interlocutory order in all cases in which it appears to the Court to be just or convenient to do so, and the order may be made either unconditionally or upon such terms and conditions as the Court considers just.

(2) A party to a cause or matter may apply for the grant of an injunction before, or after the trial of the cause or matter, whether or not a claim for the injunction was included in the party’s writ, counterclaim or third party notice.

(3) The applicant shall attach to the Motion paper and supporting affidavit, a Statement of Case setting out fully arguments, including all relevant legal authorities, in support of the application.

(4) A respondent who desires to oppose the application shall file an affidavit in opposition as well as a Statement of Case containing full arguments and the legal authorities to be relied on.

(5) Whenever possible, a draft of the order sought (copies of which may be obtained from the Fast Track High Court) should be filed with the application to facilitate speedy preparation and sealing of the order.

(6) The application may be considered on the basis of the papers filed and the court may direct, where necessary, the lawyer address it on specific points of law and facts.

(7) In case of urgency, a party may make the application ex-parte supported by an affidavit

(8) An application made ex-parte under subrule (3) shall not be granted unless the applicant gives sufficient reasons for making it ex-parte and specifies some irreparable damage or mischief which will be caused to the plaintiff if the plaintiff proceeds in the ordinary way.

(9) Where an order is made pursuant to an application made ex-parte under subrule (3) it shall not remain in force for more than ten days.

(10) If no application is made on notice to extend the order it shall lapse after the expiration of ten days from the making of the order unless the Court otherwise directs.

(11) The Court may upon application by any party affected set aside an order made ex-parte under subrule (7) on such terms as it considers fit.

(12) The plaintiff shall not make such an application before the issue of the writ.

There is no doubt that the grant of an injunction is at the discretion of the Judge. However, it is trite that judicial discretions are to be exercised in accordance with well known acceptable legal principles. 

The learned jurist Anin Yeboah JSC, in setting out what a judge should look out for in considering an injunction application,  held in 18^th July Ltd v Yehans International Ltd^[2] that “Even though an interlocutory injunction was discretionary, a trial court in determining an interlocutory application must be guided by the following principles: 

• Consider whether the case of the applicant was not frivolous and had demonstrated that he had a legal or equitable right which a court should protect;
• Ensure that the status quo was maintained so as to avoid any irreparable damage to the applicant pending the hearing of the matter and
• consider the balance of convenience and should refuse the application if its grant would cause serious hardships to the other party.

We have taken pains to set out the background to an application for injunction pending appeal to enable us appreciate the issue to be addressed in this paper.

2. Why Injunctions Pending Appeal?

When a judgment or a ruling is delivered, an unsatisfied party has the right to appeal against the decision.  Where the judgment or ruling is one which can be enforced using any of the known means of execution, the party filing the appeal has the right to file an application for stay of execution of the judgment or ruling pending the determination of the appeal.  Again the jurisprudence on an application for stay of execution pending appeal is without much controversy and same will not be explored in this paper. 

Now, it has come to be accepted that there could situations where there would be a need for the status quo to be maintained even after judgments and pending appeals.  The dilemma previously has been what options are available to a party seeking to maintain the status quo after the delivery of an unfavourable judgment but pending the determination of the appeal in the circumstances where the judgment or order of the court is not executable.

In the case of Merchant Bank Ltd v. Similar Ways Ltd^[3], the Supreme Court offered some insight into the reason behind the need for the Court to adopt a procedure to maintain the status quo pending the determination of an appeal against a non-executable order or judgment. It was held at pages 448 – 449 of the report that: 

“If a stay of execution cannot lie other remedies may lie.  One of such remedies can be the suspension of the entry of judgment.  In that event the effect of the judgment itself is temporarily frozen and incidental processes such as execution can’t fly not because execution thereof is stayed but that the life of the judgment itself is in coma.  This measure will prevent the eventual success of the applicant’s appeal beingrendered nugatory. This measure will protect the applicant from being injured by the prima facie default of the trial court having delivered its judgment without notice to the applicant, pending the determination of its appeal”.

Earlier, Adade JSC had held in Re Yendi Skin Affairs; Yakubu Ii V Abdulai^[4]that: 

“It is relevant to observe that these courts have consistently operated on the principle that where two parties are litigating, every care must be taken to ensure that the party who eventually wins does not find his judgment useless in his hands. Hence, at first instance, there are rules for interim preservation of the subject of litigation, and for injunctions to prevent waste. At the same time the courts try to hold the balance evenly between the parties so that one does not take undue advantage of the other during the course of the litigation. These principles are applied, subject to the balance of convenience in a particular situation and to the hardship, which the making or the refusal of an order may have on one or other of the parties. The same considerations apply when appeals are pending. The ideal situation will be to have the appeal heard quickly and disposed of so that one party, be he the appellant or the respondent as the case may be, does not have much opportunity to turn a delay into an advantage. Where, however, an appeal has to delay from one cause or another, either party is entitled, by applying to the court, to seek such interim remedies as will protect his interests if he should eventually win the appeal.”

3. Sources of Court’s Jurisdiction to Entertain an Application for Injunction Pending Appeal

3.1. High Court 

It is trite that when an appeal is filed, all applications (in relation to the appeal) must be filed at the registry of the trial court until the Form 6 is issued to signify the transmission of the record of appeal from the trial court to the appellate court.^[5]Hence, prior to the issuance of Form 6, the application for injunction pending appeal must be filed at first instance at the trial court. The trial Judge will have the jurisdiction to entertain the application for injunction pending appeal at first instance, if the Form 6 has not been issued yet and the order or judgment is one which is not executable. 

The provisions of Order 25 rule 1 (2) is the first point of call when it comes to looking for the source of the jurisdiction of the trial court to entertain an application for injunction pending appeal. Order 25 rule 1(2) provides that:

(2) A party to a cause or matter may apply for the grant of an injunction before, or after the trial of the cause or matter, whether or not a claim for the injunction was included in the party’s writ, counterclaim or third party notice.

The jurisdiction of the High Court to entertain an application for injunction after trial and pending appeal is however not in doubt, same having been confirmed by the provisions of the rules of civil procedure of the High Court. 

3.2 Court of Appeal and Supreme Court: Inherent Jurisdiction or Statutory Jurisdiction

There is divergence on the source and nature of the jurisdiction of an appellate court to entertain an application for injunction pending appeal; particularly after a similar application has been unsuccessful before the trial court. The aim of the author of this paper is to discuss the various legal issues which have arisen thus far in an application to either the Court of appeal or the Supreme Court for injunction pending appeal against a non-executable judgment or order of a High Court. 

The jurisdiction of the Court of Appeal and the Supreme Court is first set out in the 1992 Constitution. 

Article 129 (4) of the 1992 Constitution provides:

“For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgmentor order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and Jurisdiction vested in any court established by this Constitution or any other law.”

Article 137 (3) of the 1992 constitution also provides as follows:

 “For the purposes of hearing and determining an appeal within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any appeal, and, for the purposes of any other authority expressly or by necessary implication given to the Court of Appeal by this Constitution or any other law, the Court of Appeal shall have all the powers, authority and jurisdiction vested in the court from which the appeal is brought.”

 Unlike the Supreme Court, the Court of Appeal only has appellate jurisdiction. The jurisdiction of the Supreme Court which will be useful for the purpose of this discussion is its appellate jurisdiction. 

As indicated earlier, a party not satisfied with a decision of a court is entitled to appeal against the decision. Where the decision is not executable and the party who has filed an appeal desires to maintain the status quo pending the outcome of the appeal, that party may file an application for injunction pending appeal. Before the Form 6 is issued, that application can only be filed at the High Court which delivered the judgment.

If the application for injunction pending appeal is unsuccessful before the High Court, what options does the unsuccessful applicant have?

It is trite that if the application before the High Court was that of a stay of execution pending appeal, the unsuccessful party has the right to repeat that application before the Court of Appeal, whether or not the Form 6 has been issued^[6].

With applications pending appeal, the Court of Appeal and the Supreme Court have not been very consistent when it comes to invoking their respective jurisdictions to entertain applications for injunctions pending appeal. While there is unison of opinion that once the Forms 6 are issued (in the case of both the Court of Appeal and the Supreme Court respectively), the jurisdiction of the Appellate Court to entertain an application for injunction pending appeal is not in doubt; the Appellate Courts have however been slow to admit jurisdiction to entertain an application for injunction pending appeal when no Form 6 has been issued.  

The author had the experience of the Supreme Court declining jurisdiction to entertain an application for injunction pending the determination of a certiorari application to quash a ruling of a High Court.^[7]The Supreme Court, in that case, held that the jurisdiction of the Supreme Court to grant an application for injunction can only be invoked where the original jurisdiction of the Supreme Court is invoked and not its supervisory jurisdiction.

The question to be asked is whether or not the inherent jurisdiction of the Appellate Courts could be invoked to entertain an application for injunction pending appeal prior to the transmission of the record of appeal to that appellate Court?

To address this question, it will be apt to refer again to the dictum of Atuguba JSC in the Similar Ways case (supra). He held at page 446 of the report thus 

“Nonetheless the Rules of Court cannot cover every conceivable situation that may arise pending the determination of an appeal.  Clearly, for example, the judgment creditor who has had an application for stay of execution granted against him may, like his counterpart in the In re Yendi case (supra), be faced with certain serious detrimentsfrom the judgment-debtor’s activities.  Yet there is no provision in the current Supreme Court Rules, 1996 (CI.16) offering him relief.  In such a situation, as was held, it is reasonable to grant an injunction to protect his interests pending the determination of an appeal even though no express rule in CI.16 warrants such a course.”

Some other examples of interlocutory reliefs granted though not expressly covered by the Rules of Court are: a suspension of a disciplinary sanction imposed on a lawyer pending the determination of his appeal: see Republic v. General Legal Council Disciplinary Committee; Ex parte Aboagye da Costa^[8]; or the suspension of a fine for contempt pending appeal: see Republic v High Court, Tema; Ex parte Kofi^[9].,Lee v. Walker^[10].  Further examples are a suspension of execution pending the determination of an application for review of an order granting leave to levy execution see Baiden v Ansah^[11], a registrar’s suspension of execution pending the hearing of a pending motion for stay of execution, see Joseph v Jebeile^[12]and Republic v Circuit Court Registrar; Ex parte Arthur^[13]or even stay of proceedings pending appeal in another case, the outcome of which is relevant to the case at hand, see Vanderpuije v. Akwei^[14].

The foregoing instances of power of suspension of execution or of proceedings can be justified in several ways.  They may be settled practices of the court.  They may be inherent powers.  They may be determined or justified under the residual powers of the court under rule7 of the Court of Appeal Rules, 1997 (CI. 19); or under rule 5 of the Supreme Court Rules, 1996 (CI.16) of this court.” 

In the dictum above, the learned justice of the supreme Court, firmly stated the inherent jurisdiction of the court as one of the sources for invoking the jurisdiction of the Appellate Court to entertain an application for injunction pending appeal. 

What then is the inherent jurisdiction of the Court and how can it be invoked by an Applicant with an application for injunction pending appeal prior to the transmission of the record of appeal to the appellate court? 

We will look at a few judicial pronouncements on the scope and nature of the inherent powers of the court in Ghana. 

In the case of The Republic V High Court (Human Rights Division) Exparte Kudjo Anku^[15], the Supreme Court had this to say about the inherent jurisdiction of the court. “Aside of its general jurisdiction, a superior court has an inherent jurisdiction to correct its own errors in order to prevent abuse of processes and to ensure convenience and fairness when such errors are brought to its attention, irrespective of who presides over the court. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.

Hayfron Benjamin J (as he then was) also held in the case of Attoh-Quarshie V Okpote^[16]that 

“Inherent power is an authority not derived from any external source, possessed by a court. Whereas jurisdiction is conferred on courts by constitutions and statutes, inherent powers are those which are necessary for the existence of the court and its due functioning. They spring not from legislation but from the nature and constitution of the court by virtue of its duty to do justice between before it. The scope of inherent powers however cannot be extended beyond its legitimate and circumscribed sphere. The safest guidelines are precedents.”

InDonkor V. Kusi^[17], it was further held that “If there was no rule of court to cover the application, as in the instant case, but the applicant could rely on the court’s inherent jurisdiction to do him justice, then he should be heard.”

The common theme in all these ratio is that the inherent jurisdiction of the court could be invoked where the justice of the case demands. It should not matter whether or not the statutory jurisdiction of the appellate court has been properly invoked. If there is an injustice, the court ought to exercise its inherent jurisdiction to cure same. 

Perhaps, a demonstration of the possibility of such injustice will suffice. 

Assuming that a Claimant in an interpleader action fails in his attempt to discharge an immovable property from attachment. The ruling in the interpleader application is delivered at the end of June of the legal year. Since the ruling is non executable, an application for stay of execution pending appeal will not suffice. The Claimant must file an appeal against the ruling on his interpleader and follow same up with an application for injunction pending appeal to prevent the immovable property from being sold at an auction before the appeal is heard. If the ruling on the application for injunction pending appeal is delivered by the High Court in the middle of July, must the Claimant wait for the record of appeal to be transmitted before he can file the application for injunction pending appeal at the Court of Appeal. With experience, we can take for granted the fact that the record of appeal will not be transmitted before the end of the legal year (i.e. July 31^st). If there is nothing to suspend the execution of the judgment, the immovable property would have been sold before the appeal is heard. If the immovable property is sold at the auction, it will be extremely difficult for the Claimant to recover possession and title of the property from a third party who purchased same at the auction sale. 

It is the opinion of the author that under the circumstances narrated immediately above, it will be in the interest of justice for the Court of Appeal to entertain the application for injunction pending appeal even prior to the transmission of the record of appeal from the High Court to the Court of Appeal; since that is the only way the justice of the case will be served. 

Conclusion

We are of the opinion that the jurisdiction of the Appellate Court in granting an application for injunction pending appeal can be invoked both under the inherent jurisdiction of the Court and the statutory jurisdiction of the court.

We would however respectfully wish to state that the Appellate Court’s are careful not to grant applications which will result in the suspension of the execution of the orders or judgments of a trial Court. Application for injunctions are often seen as one means by which dissatisfied litigants seek to frustrate a successful party. Date-Bah JSC in the case of Golden Beach Hotels (Ghana) Ltd V. Pack Plus International Ltd^[18]warned against the trend of suspending the execution of the orders of a trial court. He proceeded to set the limits for the granting of suspension of orders of lower courts as follows:

“logically, the preconditions for triggering orders for suspension of orders of lower courts and stay of proceedings pending under rule 20 of the Supreme court Rules, 1996 (C.I 16), have to be stricter and narrower than those for an ordinary application for stay of execution. Otherwise, this court is likely to wallow in a semantic morass…We would like to re-iterate that the range if such exceptional circumstances would have to be kept narrow in order not to overthrow the rule that there can be no stay of execution of non-executable orders…The defendant-applicant has therefore failed to establish that its appeal, if successful, would be rendered nugatory by this court’s refusal to suspend the order of the court below. This criterion is what is used to determine applications for stay of execution…According to the argument we advanced earlier in this ruling the criterion for suspending an order of a lower court should not be identical with the criterion summarized by Akuffo-Addo JSC in theJebeille Case in relation to applications for stay of execution but should embody an additional element or requirement. The precise nature of this additional element or requirement we would leave to subsequent cases to develop. However, subject to fine-tuning in the light of the facts of subsequent cases, we would propose that a possible test could be the nugatory effect, referred to in the Jebeille Case(supra), combined with the need for exceptional circumstances. If this test of “nugatory effect plus more” is not insisted upon, there would be no point in maintaining the distinction between the two kinds of orders, namely stay of execution and suspensions of orders of lower courts.”

---

^[1]The Author is the lead Consultant at Robert Smith & Adelaide Law and assists with the teaching of Civil Procedure at the Ghana School of Law, Makola Campus

^[2][2012] 1 SCGLR 167-173

^[3][2012] 1 SCGLR 440 – 451

^[4][1984-86] 2 GLR 231 @236

^[5]Republic v High Court, Ho: Ex Parte Evangelical Presbyterian Church of Ghana [1991] 1 GLR 323

^[6]Northern Regional Development Corporation v. Haruna [1989-1990] 1GLR 340 @ 343 where it was held by Benin J (as he then was) thus “An application to the high court for a stay of execution following a rejection of an earlier application by district court is a fresh application as of right and not an appeal.

^[7]The Republic v High Court, Accra Exparte Compu Ghana Ltd; Accra Mall Ltd (Interested Party): Suit No: J5/25/2019

^[8][1989– 1990] 2 GLR 164 C.A

^[9][1999-2000] I GLR 61 C.A

^[10][1985] 1 All ER 781 C.A

^[11][1973] 1GLR 33

^[12][1963] I GLR 387 SC

^[13][1980] GLR 309 C.A at 312, 315

^[14][971] I GLR 242

^[15](SUIT NO: J5/39/2016)

^[16][1972] 2GLR 59 @ 65

^[17][1977] 2 GLR 242-248

^[18][2012] 1 SCGLR 452 – 459