Introduction
[1] In most cases when there is an interlocutory decision in both civil and criminal cases, the party against whom the decision was given may appeal against the decision. Thereafter, the party may file an application for a stay of proceedings before the trial court. Where the application is refused by the trial judge, the party may file a repeat application before the appellate court. On the other hand, it sometimes happens that a person may file an application for certiorari and/or prohibition before the High Court or the Supreme Court and pray for, or expect the trial court to stay proceedings pending the determination of the certiorari and/ or the prohibition application.
[2] This article therefore seeks to answer two questions in our legal jurisprudence:
- Whether a repeat application for a stay of proceedings before the Court of Appeal or High Court, which has not been moved, automatically stays proceedings before the trial court?
- Whether the pendency of an application for certiorari and or prohibition before the High Court or the Supreme Court automatically stays proceedings before the trial Court until the determination of the application?
Stay of proceedings
[3] A stay of proceedings connotes a temporary halt to legal proceedings. An application for stay of proceedings is usually filed to suspend the hearing of a matter until certain steps have been taken. Stay of proceedings is granted or allowed in exceptional circumstances. It is settled law that stay of proceedings is predicated on any of these three sources. These are the Court’s inherent jurisdiction, the rules of Court if any as provided by statute and the provisions of a particular statute. For example, an arbitration statute.
[4] In Atkins Encyclopaedia of Court Forms in Civil Proceedings, (2nd ed.), Vol. 35, it is stated at page 150 as follows:
“A stay of proceedings arises when by an order of the Court, proceedings which are pending in that court are brought to a halt at the stage which they have reached, so that while the stay is in operation the parties are precluded from taking any further step in the proceedings”.
It continues on the same page as follows:
“For this reason, a stay of proceedings is always a very serious and grave step for its consequences may be of far-reaching importance for the parties. The general rule of procedural law is that a litigant is entitled to have his claim to the relief or remedy which he seeks tried on the substantive merits of the case, and therefore a stay of proceedings is a discretionary jurisdiction which ought to be very sparingly exercised and only in very exceptional cases.” See: Eric Tei Akwetey Siaw & Ors. v Tetteh Siaw Sappore & Ors. [2017] 109 GMJ 153 SC
Fenu & Ors. v Dredging International Ltd. [2017-2020] 2 SCGLR 125
[5] It is settled law that the mere fact that an interlocutory appeal is pending before an appellate court does not compel a court to grant a stay of proceedings. See: Isa v The Republic [2003-2004] 1 GLR 792 SC
[6] In applications for stay of proceedings, the Court will grant the application if there are exceptional circumstances to warrant it being granted and that would depend on the circumstances of the case. However, the mere allegation that there had been a misdirection or a series of misdirection is, on the authorities, not deemed to be such a “special circumstance” for the grant of stay of proceedings. See: Republic v Committee of Inquiry (R. T. Briscoe (Ghana) Limited) Ex parte R. T. Briscoe (Ghana) Limited [1976] 1 GLR 166 CA
[7] Where a property in issue would be lost and cannot be retrieved upon the applicant being successful on appeal, then stay of proceedings may be granted. In the case of Garret v Garrett [1991] 2 GLR 366 CA, it was held 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.”
[8] In Brutuw v Aferiba and Another [1979] GLR 566, an application for stay of proceedings was refused notwithstanding the argument that the application:
(a) raised important questions of law;
(b) it might succeed, and if successful, would be rendered nugatory if the action were to continue; and,
(c) it would be convenient to order a stay of proceedings and there would also be savings of time and money.
[9] A stay of proceedings will however, be granted where the proceedings against the applicant are oppressive and vexatious. See: Sandah v Asante and Another [1971] 1 GLR 14
[10] In an application for stay of proceedings, the burden is on the applicant to show by available materials that there are grounds for its grant to allow a court to put a temporary halt to the proceedings. See: Amidu (No. 8) v Attorney-General, Waterville Holdings (BVI) Ltd. & Woyome (No. 6) [2017-2020] 2 SCGLR 421
Whether a repeat application for stay of proceedings before the Court of Appeal or High Court, which has not been moved, automatically stays proceedings before the trial court?
[11] The law is settled that the fact that an application for stay of proceedings has been filed or is pending before the Court of Appeal or the High Court, in either civil or criminal case does not operate to stay proceedings in the trial court, unless the trial court itself so directs by virtue of its inherent jurisdiction or the Court of Appeal or an appellate court so directs in the interim.
[12] The Court of Appeal Rules, 1997 (C.I. 19) as amended by the Court of Appeal (Amendment) Rules, 1998 (C.I. 21) particularly rules 27 and 27A which have been substituted and/or revoked by Rules 1 and 2 of the Court of Appeal (Amendment) Rules, 2020 (C.I.132) do not say that the filing of an application for Stay of Proceedings before the Court of Appeal in either civil or criminal case automatically stays proceedings before the High Court or Circuit Court in a civil case.
[13] I wish to reproduce rules 27 of C.I. 19 and 27A of C.I. 21 and juxtaposed them with Rules 1 and 2 of C.I. 132 to put them in proper perspective.
Rule 27 of C.I. 19 provides:
“27. Effect of appeal
(1) An appeal shall not operate as a stay of execution or of proceedings under the judgment or decision appealed against except where the court below or the Court otherwise orders-
(a) in the case of the court below, upon application made orally or by motion on notice to it; and
(b) in the case of the Court, upon application made to it by motion on notice, and except as provided in this rule no intermediate act or proceedings shall be invalidated.
(2) When an application is pending for determination under sub-rule (1) of this rule any proceedings for execution of the judgment or decision to which the application relates shall be stayed.
(3) There shall, in any case, be a stay of execution of the judgment or decision, or of proceedings under the judgment or decision appealed from-
(a) for a period of seven days immediately following the giving of the judgment or decision; and
(b) for a period of seven days immediately following the determination by the court below or any application under sub-rule (1)(a) of this rule where the application is refused by the court below.”
Rule 27A of C.I. 21 also provides as follows:
“27A Interlocutory appeals-
“The Court may in any interlocutory appeal, civil or criminal before it. grant stay of proceedings pending the determination of the interlocutory appeal subject to such terms as the Court considers fit."
[14] Rule 1 of C.I.132 provides: “The Court of Appeal Rules 1997(C.I.19) referred to in this enactment as the “principal enactment” is amended in rule 27 by
(a) the substitution for subrule (1), of
(1) An appeal shall not operate as a stay of execution under the judgment or decision appealed against unless the Court otherwise orders on an application made to the court by motion on notice.”
(b) the insertion after subrule (1) of
“(1A) Unless otherwise provided in this rule, an intermediate act or any other proceedings subsequent to an application under subrule (1) shall not be invalidated.” and
(c) the substitution for subrule (3), of
(3) There shall be a stay of execution of the judgment or decision, appealed against for a period of seven days immediately following the giving of notice of the judgment or decision.”
Rule 2 of C.I. 132 also provides:
“2. The principal enactment is amended by the revocation of rule 27A.”
[15] It can be seen that Rule 27(2) of C.I.19 has not been amended or substituted under C.I. 132. However, Rule 27(2) of C.I. 19 is predicated upon Rule 27(1) of C.I.19 which has been substituted by Rule 1(a) of C.I. 132, and it only mentions stay of execution but does not mention stay of proceedings. Again, it can be observed that Rule 1(c) of C.I. 132 only mentions stay of execution. It does not mention stay of proceedings unlike the old Rule 27(3) of C.I.19.
[16] As stated above, the whole of rule 27(1) of C.I. 19 has been replaced by Rule 1(a) of C.I. 132. It only mentions stay of execution and not stay of proceedings, unlike the amended Rule 27(1) of C.I.19 which mentioned stay of execution and stay of proceedings. Rule 2 of C.I. 132 has also revoked Rule 27A of C.I. 21. Therefore, Rules 1 and 2 of C.I. 132 have made major inroads in our legal jurisprudence in respect of stay of proceedings. The former situation where the filing of a repeat application before the Court of Appeal amounted to automatic stay of proceedings before the lower court until the application had been heard under Rule 27 (2) and (3) of C.I. 19 has been taken away under Rules 1 and 2 of C.I. 132.
[17] And if the framers of C.I. 132 wanted the filing of a repeat application for stay of proceedings to operate as automatic stay of proceedings before the lower court, they would not have even omitted stay of proceedings from C.I.132. This discussion is in respect of both civil and criminal cases.
[18] Therefore, the mere filing of a repeat application for stay of proceedings before the Court of Appeal does not operate as an automatic stay of proceedings before the lower court. Unless the lower court stays its own proceedings or the appellate court makes a specific order to that effect. Consequently, it is only stay of execution for which a repeat application pending before an appellate court would automatically stay execution of the judgment but not stay of proceedings.
[19] From the above rendition, the question as to whether the mere filing of a repeat application before the Court of Appeal for stay of proceedings will automatically stay proceedings in the substantive case before the trial court until the motion before the Court of Appeal has been heard is answered in the negative. See: Erdmac Company Ltd. v Zenith Bank Ghana PLC. and Another, CM/OCC/0701/2022, dated 2nd February, 2023.
[20] It seems to me that even before the promulgation of C.I.132, the pendency of an application for a stay of proceedings in a case was not even a bar to the hearing of the substantive case or any other application in the case before the trial court.
[21] In the case of Republic v High Court (Commercial Division A) Tamale, Ex parte Kaleem (Substituted by Alhassan) (Dawuni-Interested Party) [2015-2016] 2 SCGLR 1332, the Supreme Court stated per holding (4) of the headnote as follows:
“Unless restrained or prevented by any law or rule of practice, a High Court judge could not be denied the right to hear a case or an application in proceedings the way and manner he deems fit. Thus, unless a court has directed in the interim or heard the application for stay of proceedings and granted same, the fact that an application for stay of proceedings was pending did not operate to stay proceedings. Therefore, the bare fact that an application for stay of proceedings has been filed did not operate as an automatic stay, so no party has the privilege to stay away from the proceedings, as the applicant did at the court below.”
Whether the pendency of an application for certiorari and/or prohibition pending before the High Court or the Supreme Court automatically stays proceedings before the trial Court until the determination of the application?
[22] Certiorari and prohibition come within the supervisory jurisdiction of the High Court and the Supreme Court. One or both remedies can be granted in one application.
Certiorari
[23] It simply means quashing a decision of a lower court or lower adjudicating body or other authority under the supervisory jurisdiction of the High Court or the Supreme Court. Therefore, an order can be granted by the High Court or the Supreme Court in certain cases to quash a decision of a lower court or a lower adjudicating body under certain conditions.
[24] Summary of the grounds for the grant of certiorari
(a) That the decision was made without jurisdiction or lack of jurisdiction. For example, a rape charge which is tried summarily by a District Court or a Circuit Court even by the High Court summarily.
(b) Excess of jurisdiction. For example, a District Court sentencing a first offender to prison term for three years for the offence of stealing contrary to section 124 of Act 29.
(c) Breach of natural justice rule. That is not given the right to be heard.
(d) Where there has been error of law patent on the face of the record in such a way as to render the decision a nullity. For example, where a person’s evidence in a case was not recorded by the judge.
(e) Where an order made is illegal or unreasonable. For example, where a prostitute sues a man in court for payment for her service as a prostitute and the court grants such a relief for the prostitute. This is because person trading in prostitution is a criminal offence under section 274 of Act 29.
See some cases on certiorari
- Republic v High Court Accra, Ex parte Salloun (Senyo Coker- Interested Party) [2011] 1 SCGLR 574
- Republic v High Court Accra; Ex parte Hanawi (Owusu & Owusu-Interested Party) [2013-2014] 2 SCGLR 1169
- Republic v High Court (Fast Track Division) Accra, Ex Parte State Housing Co. Ltd. (No. 2), Koranten-Amoako–Interested Party [2009] SCGLR 185
- In Re Appenteng (Dec’d) Republic v High Court, Accra; Ex parte Appenteng [2005-2006] SCGLR 18
- Republic v High Court, Accra; Ex parte Eyiti (Akan Printing Press and Rajwani-Interested Parties) [2015-2016] SCGLR 388
- Republic v. High Court, Accra, Ex parte Industrialisation Fund for Developing Countries and Another [2003-2004] SCGLR 348
- Republic v. High Court, Accra, Ex parte CHRAJ [2003-2004] 1 SCGLR 312
- Republic v. High Court, Accra, Ex parte Soku [1996-1997] SCGLR 535
- Republic v Circuit Court, Kumasi Ex parte Kwabena Mensah [2019] 132 GMJ 86
- Republic (No.2) v High Court (Land Division) Accra; Ex parte Lands Commission (Nungua Stool & Others-Interested Parties) (No.2) [2017-2020] 1 SCGLR 891
- Republic v. High Court, Sekondi, Ex parte Ampong aka Akrufa Krukoko I (Kyerefo III and Others – Interested Parties) [2011] 2 SCGLR 716
- Republic v High Court, General Jurisdiction 5, Accra Ex parte The Minister for Interior & Another (Ashok Kumar Sivaram – Interested Party) [2018] 122 GMJ 63 SC
- Republic v Court of Appeal; Ex parte Tsatsu Tsikata [2005-2006] SCGLR 612
- Accra Recreational Complex Ltd. v Lands Commission [2007-2008] 1 SCGLR 108
- Republic v Court Appeal; Ex parte Ekuntan II [1989-90]2 GLR 168 SC
- Republic v High Court, Koforidua; Ex parte Otu [1995-96]1 GLR 177 SC
- Republic v High Court, Accra; Ex parte Industrialization Fund for Developing Countries [2003-2004]1 SCGLR 348
- Republic v High Court, Accra; Ex parte Appiah [2000] SCGLR 389
[25] The law is that certiorari lies not only to review and quash a decision taken in the absence of initial jurisdiction, but also in the exercise of excess of jurisdiction as when a court initially clothed with jurisdiction embarks upon a path unwarranted or uncalled for in the disposition of the specific matter before it. See: Republic v High Court, Commercial Division Accra; Ex parte Electoral Commission (Papa Kwesi Nduom- Interested Party) [2017] 111 GMJ 210 SC
[26] It has been repeatedly affirmed by several authorities that the right to be heard in any proceedings is a natural and inalienable right which should not be taken away. It is equally the law that if a party is given an opportunity to be heard and he declines without any excuse, it means he has waived his right to be heard. See: Republic v High Court (Fast Track Division) Accra, Ex parte Ayikai (Akosoku IV–Interested Party) [2015-2016] 1 SCGLR 289
[27] In Republic v Cape Coast District Magistrate Court II; Ex Parte Amoo [1979] GLR 150 Apaloo CJ (as he then was) observed in relation to the remedy of certiorari and stated as follows:
“As is well known, the remedy of certiorari is a useful tool in aid of justice and ought to be used to correct defects of justice whether they arise from illegality, fraud, breach of the rules of natural justice, error on the face of the record and the like. I am not even prepared to say that the category of cases in which this useful remedy can or should be used is closed. There is no reason why I should stifle the development of the law by any such assertion.”
[28] In Republic v. Committee of Inquiry into Nungua Traditional Affairs Ex Parte Odai IV and Others [1996-97] SCGLR 401, it was observed as follows:
“A decision made in breach of the rules of natural justice would be quashed even if made correctly…”.
[29] The law is settled that if a court has jurisdiction to entertain a matter, the judge’s decision may be right or wrong. If it is wrong, the remedy for the dissatisfied party is to appeal against the decision and not to apply for certiorari. See: Republic v. High Court (Financial Division) Accra; Ex Parte Awuni, (Chief Executive Officer-Financial Intelligence Centre-Interested Party) [2015-2016] 1 SCGLR 643
[30] It is well settled that certiorari does not concern itself with the merits of the case and will be granted to quash a decision of a court or lower adjudicating authority or administrative body under certain established principles. See: Republic v High Court Accra, Ex parte Salloun (Senyo Coker- Interested Party) (supra)
Prohibition
[31] It simply means to stop a lower court or lower adjudicating body from going ahead with its proceedings.
[32] Summary of the grounds for the grant of prohibition
(a) Lack of jurisdiction
(b) Excess of jurisdiction
(c) Departure from the rules of natural justice. For example, when one is not served with a criminal summons but the judge intends to proceed with the case.
(d) Real likelihood of bias on the part of the adjudicating officer.
See some cases on prohibition
- Amadu v Mohammed [2007-2008] SCGLR 58
- Republic v High Court (Commercial Division) Ex parte Kevin Ekow Taylor, (Attorney-General-Interested Party), Civil Motion No. J5/80/2025, dated 22nd July 2025 SC
- The Republic v High Court (Commercial Division), Tamale; Ex parte Matthew Nyindam (Daniel Nsala Wakpal and 2 Others-Interested Parties), Civil Motion No. J5/13/2026, dated 28th January 2026, SC
- Republic v High Court Denu; Ex Parte Agbesi Awusu II (No. 1) (Nyonyo-Agboada Sri III-Interested Party) [2003-2004] 2 SCGLR 864
- Republic v High Court, Kumasi; Ex Parte Mobil Oil (Gh.) Ltd. (Hagan-Interested Party) [2005-2006] SCGLR 312
- Republic v High Court, (General Jurisdiction) Accra; Ex parte Aboubakar (King George Enterprise–Interested Party) [2017-2020] 1 SCGLR 986
- Republic v High Court, Accra; Ex parte Kotey (Boadu-Interested Party) [2015-16] 2 SCGLR 1267
- High Court Accra Ex parte Ghana Medical Association (Arcmann-Akummey–Interested Party) [2012] 2 SCGLR 768
[33] It is settled law that it is the ethical position of any adjudicator that a judge should be impartial to all persons who appear before him to prevent bias or real likelihood of bias; however, a person who alleges bias against a judge must prove the allegation.
[34] The word judicial bias has been defined by the Black’s Law Dictionary, 12th ed., edited by Bryan A. Garner as:
“A judge’s bias toward one or more of the parties to a case over which the judge presides. Judicial bias is usually not enough to disqualify a judge from presiding over a case unless the judge’s bias is personal or based on some extrajudicial reason.”
[35] In the case of Republic v High Court Denu; Ex Parte Agbesi Awusu II (No. 1) (Nyonyo -Agboada Sri III-Interested Party) (supra) the Supreme Court held that “a charge of bias or real likelihood of bias must be satisfactorily proved on the balance of probabilities by the person alleging same.Whether there existed real likelihood of bias or apparent bias was a question of fact determinable on a case-by-case basis. And the allegation must be supported with evidence”. It must therefore be emphasised that in cases of prohibition, real likelihood of bias in a judge is a ground for granting such an order of prohibition. However, such likelihood of bias has to be established on the basis of facts duly proved.
[36] The law is settled that a real likelihood of bias on the part of a judge constitutes a ground for recusal and/or forms the basis for the grant of an order of prohibition against him or her. However, such a likelihood of bias must be established on the basis of facts duly proved. It is a finding that must be carefully considered based on evidence duly proved, because it calls into question an element of judicial integrity. Indeed, an allegation of reasonable apprehension of bias challenges not only the personal integrity of the judge but also the integrity of the entire administration of justice. See: Amadu v Mohammed (supra)
[37] It is important to note that certiorari seeks to correct past errors while prohibition seeks to prevent future errors from occurring. See: Republic v High Court Accra Ex parte Ghana Medical Association (Arcmann-Akummey–Interested Party) (supra)
Statutory Provisions on the Supervisory Jurisdiction of the High Court and the Supreme Court
[38] Section 5 of the Courts Act, 1993 (Act 459) provides:
“The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory power.”
[39]Article 132 of the Constitution also provides:
“The Supreme Court shall have supervisory jurisdiction over all courts and over any adjudicating authority and may, in the exercise of that supervisory jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory power.”
[40]Section 16 of Act 459 provides:
“The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions including orders in the nature of habeas corpus, certiorari, mandamus, prohibition and quo warranto for the purpose of enforcing or securing the enforcement of its supervisory powers.”
[41]Article 141 of the Constitution provides as follows:
“The High Court shall have supervisory jurisdiction over all lower courts and any lower adjudicating authority; and may, in the exercise of that jurisdiction, issue orders and directions for the purpose of enforcing or securing the enforcement of its supervisory powers.” The High Court Civil Procedure Rules, 2004 (C.I.47) under Order 55 also regulates applications for judicial review.
[42]Section 5 of Act 459, Article 132 of the Constitution, section 16 of Act 459 and Article 141 of the Constitution which are on the supervisory jurisdiction of the Supreme Court and the High Court over lower courts as the case may be, do not provide that when the Supreme Court or the High Court is entertaining an application for prohibition and/or certiorari, the pendency of the application should automatically stay proceedings before the trial court until the application before the Supreme Court or the High Court has been heard.
[43]The Supreme Court Rules, 1996 (C.I.16) as amended by the Supreme Court (Amendment) Rules, 2020 (C.I.131) does not provide for automatic stay of proceedings during the pendency of an application for certiorari and/or prohibition pending before the Supreme Court unless the Supreme Court specifically directs by virtue of its inherent powers as has been stated above.
[44] The jurisdiction of the High Court under Article 140 of the 1992 Constitution and section 15 (1) of Act 459 as amended by section 2 of Act 620 is not ousted by filing of an application for prohibition and/or certiorari before the Supreme Court.
Automatic stay of proceedings
[45]One statutory instance of automatic stay of proceedings of any matter pending before a lower court of which an aspect is pending before the Supreme Court is in respect of cases or issues referred to the Supreme Court for constitutional interpretation under Article 130 (2) of the 1992 Constitution and Section 3(2) of Act 459.
[46]Article 130 (2) of the Constitution provides:
“Where an issue that relates to a matter or question referred to in clause (1) of this article arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”
[47] Section 3 (2) of Act 459 also provides:
“Where an issue that relates to a matter or question referred to in subsection (1) of this section arises in any proceedings in a court other than the Supreme Court, that court shall stay the proceedings and refer the question of law involved to the Supreme Court for determination; and the court in which the question arose shall dispose of the case in accordance with the decision of the Supreme Court.”
[48] Another statutory instance for automatic stay of proceedings of a case pending before a trial court is in respect of reservation of questions of law to the Supreme Court, Court of Appeal and High Court under section 100 of Act 459 as amended by the Courts (Amendment) Act, 2002 (Act 620).
[49] Section 100 of Act 459 as amended by Act 620 provides:
“100 (1) This section shall have effect without prejudice to any right of appeal conferred by the Constitution, this Act or any other enactment.
(2) The Court of Appeal may before giving judgment in any proceedings before it reserve a question of law by case stated for the consideration of the Supreme Court.
(3) A Judge of the High Court or of a Circuit Court may at any time before judgment in any civil cause or matter before it, reserve for the consideration of the Court of Appeal, by case stated, any question of law which may arise in the proceedings.
(4) A Judge of the High Court or of a Circuit Court in any criminal trial may before judgment, reserve for the consideration of the Court of Appeal by case stated, any question of law which may arise in the proceedings.
(5) A Regional Tribunal or a Circuit Tribunal in any trial before it may before giving judgment, reserve for the consideration of the Court of Appeal by case stated by the Regional or Circuit Tribunal any question of law arising in the proceedings.
(6) A District Court may at any time before giving judgment in any action before it, reserve any question of law that may arise in the proceedings for consideration of the High Court by case stated by the District Court.
(7) Any court to which a question of law is referred under this section shall have power to hear and determine that question.
(8) Where a question of law has been reserved for the consideration of a court under this section, the court which reserved the question shall adjourn the proceeding in question until the decision of the first mentioned court on it is given and the court which reserved the question shall, after the decision is known give judgment in the case in accordance with that decision. (Emphasis mine)
(9) The court to which any question of law is reserved under this section shall ensure that the question referred to it is heard and determined by it as expeditiously as possible and that its decision is communicated to the court which reserved the question.”
Whether case law supports automatic stay of proceedings before a trial court during the pendency of an application for certiorari and/ or prohibition before the High Court or the Supreme Court?
[50] I have also gone through the legal anatomy in this country in terms of decided cases in relation to the second question posed above. I came across the case of Republic v Fast Track High Court, Accra; Ex parte Daniel [2003-2004] SCGLR 364. In that case, an application for prohibition was pending before the Supreme Court against a Supreme Court judge who was sitting as an additional High Court judge. While the prohibition application had not been heard, the High Court continued with the proceedings in the case. The applicant filed another application before the Supreme Court for leave to amend the prohibition application by asking the Supreme Court to quash the proceedings taken by the High Court by way of certiorari, before the hearing of the prohibition application. The applicant contended that once the prohibition application was pending before the Supreme Court for determination, the High Court Judge acted in excess of jurisdiction when he continued with the matter and ought to have stayed proceedings to await the outcome of the prohibition application.
[51] The Supreme Court in dismissing the application held in holding 3 at page 367 as follows:
“The Fast Track Court was not obligated by the provisions in Article 130 (2) of the 1992 Constitution to stay proceedings. There was no factual, legal, or procedural situation presented by the instant case. The Fast Track High Court had not considered that a question of enforcement or interpretation of the constitution had arisen which had to be determined by the Supreme Court. A motion for other relief, such as the instant application for an order of prohibition filed before the Supreme Court did not automatically operate to stay proceedings in the Court whose proceedings were being challenged. It is only when the trial Court had referred a question of law to the Supreme Court that the constitution enjoins it to stay its proceedings until the matter had been determined by the Supreme Court. The instant motion for prohibition did not come within the ambit of Article 130 (2). The Fast Track High Court was perfectly within the law to continue with its proceedings until and unless there was a specific order from a higher court to stay its proceedings. Consequently, the application for leave to amend by asking for an order of certiorari to quash the proceedings of 5th May 2003 in the Fast Track Court for want of jurisdiction was wholly misconceived”.
[52] I am of the view that Ex parte Daniel (supra) also answers the second question posed above.
[53] All lower Courts are bound by the above decision in the Ex parte Daniel’s case (supra) by virtue of judicial precedent, the principle of stare decisis as well as the constitutional injunction placed on all lower courts under Article 129 (3) of the Constitution. The said article provides as follows:
“129 (3) The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law.”
[54] There is no ambiguity as to the meaning of the ratio quoted above. And it is only when the provisions of a statute or the wording of a ruling or decision is unclear that one must resort to the canons of construction or interpretation to resolve it.
[55] It is therefore my opinion that any contention that the pendency of an application for prohibition and/or certiorari before the Supreme Court or High Court should automatically stay proceedings in the lower court pending the determination of the application before the Supreme Court or the High Court would have no legal leg to stand on. And if it were in a religious realm, such line of argument would be described as the height of apostasy. See: Erdmac Co. Ltd. v Zenith Bank Ghana PLC and Another, CM/OCC/0701/2022, dated, 22nd March 2023
Legal gymnastics tool?
[56] It appears that what some lawyers do to delay the continuation of cases pending before trial courts in that, once an application for certiorari and/or prohibition is filed before the Supreme Court, under Article 132 of the 1992 Constitution and/or under section 5 of Act 459, or before the High Court under Article 141 of the Constitution and/or under section 16 of Act 459, they will cause a copy of the application to be put on the docket before the trial court in the substantive case.
[57] In most cases, some trial judges would adjourn the substantive case sine die or stay proceedings until the application for the prohibition and/or the certiorari has been heard by either the Supreme Court or the High Court. And in most cases, once the proceedings in the substantive case have been stayed, the applicant in the application for the prohibition and/or certiorari will not pursue the application. And the substantive case can be in abeyance for months or even for years.
Litigation must come to an end
[58] It is also trite law that the rules of procedure, like substantive law form an integral part of the trial process. In Oppong v Attorney-General and Others [2000] SCGLR 275, the Supreme Court held at page 279 per Bamford Addo JSC (as she then was) as follows:
“Many a time litigants and their counsel have taken the rules of procedure lightly and ignored them altogether as if those rules were made in vain and without any purpose. Rules of procedure… are important for the proper administration of justice; they are meant to prevent delay by keeping the wheels of justice rolling smoothly. If this were not so, parties would initiate action in court and thereafter go to sleep, only to wake up at their own appointed time to continue with such litigation at their pleasure. If this were allowed, litigation would grind to a halt, a sure recipe for confusion and inordinate delay in the due and proper administration of justice.”
[59] It is in the public interest that litigation must come to an end. Rules of procedure are intended to achieve certainty and procedural integrity by guiding litigants. Otherwise, a litigant may conveniently take his time to decide when to proceed with his litigation. See: Doku v Presbyterian Church of Ghana [2005-2006] SCGLR 700
[60] Litigants should not get license to hold the machinery of justice in abeyance for as long as they desire. Litigation must come to an end at some point. Therefore, the court's discretion to even extend time should only be used in deserving cases. See: Essilfie and Others v Anafo and Others [1992] 2 GLR 654 SC
[61] It is therefore the law that a trial court would not commit any error if it proceeds with the hearing of a substantive matter notwithstanding the pendency of an application for prohibition and/ or certiorari pending before the Supreme Court or the High Court. This means that the second question posed above is also answered in the negative. The trial court would also not offend any law if it proceeds with a trial notwithstanding the pendency of a repeat application for stay of proceedings before an appellate court.
Stay of proceedings in Minerals and Mining cases
[62] It appears that the inherent power of the court to even grant a stay of proceedings in respect of cases under the Minerals and Mining Act, 2006 (Act 703) has been ousted by legislation under the Tribunals Act, 2026 (Act 1181) which was assented to on 26th August 2026. It is provided under sections 38 and 39 of Act 1181 as follows:
“Interlocutory appeals
38.(1) Where a party to a proceeding in relation to a matter under the Minerals and Mining Act, 2006 (Act 703) is dissatisfied with a decision of a tribunal in respect of an interlocutory application, the party to the proceeding may make an interlocutory appeal against the decision of the tribunal.
- During the trial of a case under the Minerals and Mining Act,
- (Act 703), an interlocutory appeal shall only be made
(a) after the conclusion of the case for the prosecution; and
(b) within seven days after the
(i) close of the case of the prosecution, where the defence does not make a submission of no case; or
(ii) ruling on a submission of no case, where the defence makes a submission of no case.
(3) An interlocutory appeal filed under subsection (1) shall be determined within thirty days.”
“Stay of proceedings
39. There shall be no stay of proceedings in a case under the Minerals and Mining Act, 2006 (Act 703).”
[63] Under Act 1181, it is only where a reference is made to the Supreme Court for interpretation in respect of a case pending before a tribunal, which may include a case under Act 703, that proceedings should be stayed pending the determination by the Supreme Court under section 25 of Act 1181.
Section 25 of Act 1181 provides as follows:
“Reference to the Supreme Court
- Where a question arises in any proceedings before a tribunal as to the interpretation of a provision of the Constitution, the tribunal shall
(a) stay proceedings and refer the question of law involved to the Supreme Court for determination; and
(b) dispose of the case in accordance with the decision of the Supreme Court.”
[64] Under Act 1181, the trial of a case under Act 703 should conclude within sixty days. Section 37(4) of Act 1181 provides as follows:
“The tribunal shall inquire into and determine the case expeditiously within sixty days.”
[65] In my view, section 100 of Act 459 on automatic stay of proceedings where a question of law is reserved to a higher court for guidance would also apply to proceedings in respect of a case under Act 703 notwithstanding section 39 of Act 1181. This is because section 100 of Act 459 states that it shall have effect without prejudice to any right of appeal conferred by the Constitution, Act 459 itself or any other enactment. This, in my view, includes Act 1181.
Conclusion
[66] The above discussion should fortify a trial court to proceed with the hearing of a substantive case where there is a repeat application for stay of proceedings pending before the Court of Appeal which has not been heard, or there is an application for certiorari and/or prohibition pending before the High Court or the Supreme Court which has not been heard, unless any of the instances of automatic stay of proceedings discussed above has occurred. A trial court should therefore not be in limbo, like Ato, the protagonist in Ama Ata Aidoo’s play, ‘The Dilemma of a Ghost’ who at the conclusion of the play did not know whether to follow his wife or his family.