Introduction
The decision of the Supreme Court in Ghana Telecommunications Co. Ltd & Anor v Atta VI — known as the Ogyeadom case — has introduced a new and problematic approach to stay of execution applications before the Supreme Court. In that case, the court purported to reformulate the conditions which an applicant must satisfy before a court will grant a stay of execution pending appeal. The reformulation has since created confusion at the bar and on the bench about the correct legal test for such applications.
This paper submits that the Ogyeadom decision is bad law. It was decided per incuriam a long line of binding authorities that had settled the law on stay of execution in Ghana. More fundamentally, the reformulation which the court adopted is internally inconsistent, incompatible with constitutional principle, and produces results that are at odds with the interests of justice which the law of stay of execution is designed to serve.
The title of this paper captures the writer's central thesis. A court which departs from established law without acknowledging it, and without engaging with the authorities it has displaced, has itself committed the very error it purports to correct. That error — a departure unsupported by reasoning and unacknowledged as a departure — must in turn be departed from.
The Law Before Ogyeadom
Before examining the Ogyeadom decision, it is necessary to state the law as it stood before that case. The law on stay of execution applications was well settled. The conditions which a court would consider on such an application were: (i) whether the judgment debt or decree is capable of being reversed; (ii) whether a refusal of a stay would render the appeal nugatory; (iii) whether the applicant has a good arguable case on appeal; and (iv) the balance of convenience and the risk of irreparable harm.
These conditions derived from a coherent body of authority both in Ghana and in England, from which Ghana's procedural law has historically drawn. They were applied consistently across a substantial line of cases. No decision of the Supreme Court had, before Ogyeadom, purported to fundamentally alter them.
Rule 20 of the Supreme Court Rules (C.I. 16) governs stay of execution applications before the Supreme Court. The Rule confers a discretionary power on the court to order a stay. It does not purport to define the conditions which must be satisfied before that discretion is exercised — that is a matter for the common law. The court in Ogyeadom conflated the procedural question of what Rule 20 permits with the substantive question of what conditions the law requires to be satisfied. These are distinct questions calling for distinct answers.
The Ogyeadom Decision Examined
In the Ogyeadom case, the Supreme Court was called upon to determine whether a stay of execution should be granted pending an appeal to the court. The application arose in a context involving a traditional ruler's stool — a matter with deeply sensitive implications. The court refused the application and, in doing so, articulated a test that departed substantially from the established conditions for stay of execution.
The court held — or appeared to hold — that the applicant must demonstrate, as a preliminary threshold, that the judgment appealed against is "manifestly wrong." This formulation is problematic in several respects. First, it conflates the conditions for a stay with the conditions for success on the substantive appeal. Second, it sets a threshold that is, in most cases, impossible to discharge without effectively pre-determining the appeal itself. Third, it has no support in any prior decision of the Supreme Court or of any other superior court in Ghana.
The court's reliance on Article 129(4) of the 1992 Constitution — which empowers the Supreme Court to depart from its own prior decisions — did not assist the reasoning. A court may depart from its own decisions. It may not depart from them without acknowledging the departure, without giving reasons for it, and without engaging with the authorities being displaced. In Ogyeadom, none of these requirements was satisfied.
Ogyeadom Is Per Incuriam Prior Binding Authority
The per incuriam doctrine provides that a decision is given per incuriam where the court has failed to consider a statute or a binding precedent which would have led to a different decision had it been brought to the court's attention. Ogyeadom was decided without reference to the established line of authority on the conditions for stay of execution. The judgment neither acknowledged the existence of that line of authority nor explained why the conditions articulated in those earlier decisions were being modified or abandoned.
In Republic v High Court (Criminal Division), Accra; Ex parte Ecobank Ghana Ltd; Origin 8 & Anor, the Supreme Court reaffirmed the principle that a well-settled practice of the courts cannot be overridden without the use of express language. The same principle applies in the common law context: a long-settled line of authority on the conditions for a stay of execution cannot be silently displaced by a single decision that fails even to acknowledge the existence of that settled law. Ogyeadom did precisely this. It is, in the technical legal sense, per incuriam those prior authorities.
The "Manifestly Wrong" Test Cannot Be Right
The "manifestly wrong" formulation — if that is indeed what the court intended — imposes an impossible burden on an applicant for a stay. At the stage of a stay application, the appeal has not yet been heard on its merits. The court has not had the benefit of full argument. To require an applicant to demonstrate at the interlocutory stage that the judgment appealed against is manifestly wrong is, in substance, to require the applicant to win the appeal before it is heard.
This produces a result that is contrary to the purpose of a stay of execution. A stay is granted precisely where the applicant has a prima facie case on appeal — not a concluded case. The established conditions for a stay — good arguable case, risk of the appeal being rendered nugatory, balance of convenience — recognise this by setting a threshold that is appropriate to the interlocutory nature of the application. The Ogyeadom test collapses this careful calibration.
Moreover, the "manifestly wrong" test creates an incentive structure that is inimical to justice. Where a judgment is truly manifestly wrong, there is a strong case for granting a stay — and also a strong case on the merits of the appeal. But where a judgment is wrong in a subtle or novel way — precisely the sort of case that calls for appellate resolution — the Ogyeadom test would refuse the stay. The more difficult and important the legal question raised by the appeal, the less likely an applicant is to satisfy the Ogyeadom threshold.
The Constitutional Framework
Article 129(4) of the 1992 Constitution empowers the Supreme Court to depart from its own prior decisions in the interests of justice. This power is significant and must be exercised with care. It is not, however, a licence for the court to modify established law without acknowledgment, without reasoning, and without engaging with the prior authorities it displaces.
The court's departure from established law in Ogyeadom was, at best, implicit. The judgment did not invoke Article 129(4). It did not identify the earlier decisions it was departing from. It did not explain why the established conditions for stay of execution were inadequate or why the "manifestly wrong" formulation was superior. This absence of reasoning is, by itself, a reason not to treat Ogyeadom as settling the law in the way the court appeared to intend.
A constitutional power to depart from prior decisions must be exercised constitutionally — that is, in a manner that respects the rule of law values which that power is designed to serve. Among those values is the principle that like cases be decided alike: stare decisis. A decision that departs from binding authority without acknowledgment undermines, rather than exercises, the Article 129(4) power in the manner the constitution intended.
Stare Decisis and the Ogyeadom Effect
The practical consequences of Ogyeadom have been felt since the decision was handed down. Applications for stay of execution before the Supreme Court have been argued — and decided — on the basis of varying formulations. Some courts have applied the Ogyeadom test. Others have applied the established conditions. Still others have sought to reconcile the two. This divergence is itself evidence of the confusion the decision has introduced.
The doctrine of stare decisis serves important functions. It promotes certainty, enables lawyers to advise their clients with confidence, and ensures that like cases are decided alike. Ogyeadom has undermined all of these values in the specific context of stay of execution applications before the Supreme Court. The remedy is not to apply Ogyeadom as settled law, but to recognise it for what it is — a departure, decided per incuriam, which has itself created the very inconsistency that the doctrine of binding precedent is designed to prevent.
Why Ogyeadom Must Be Departed From
The case for departing from Ogyeadom is strong. The decision was not preceded by a departure from the established line of authority. It cannot be read as a considered reformulation of the law because it does not engage with the law it purportedly modifies. It has produced uncertainty, inconsistency, and injustice in its application. And the test it appears to articulate — "manifestly wrong" — is incompatible with the purpose and function of a stay of execution as an interlocutory remedy.
There is no magic in the fact that Ogyeadom was decided by a full bench of the Supreme Court. A full bench decision which is per incuriam prior binding authority is no more binding, as a matter of law, than a smaller bench decision decided on the same basis. The obligation of the court to follow its own prior decisions attaches to decisions that were themselves correctly decided — not to decisions that were themselves departures without acknowledgment.
The Supreme Court should, at the earliest opportunity, revisit Ogyeadom in a case that squarely raises the question of the correct conditions for a stay of execution. It should acknowledge that Ogyeadom departed from the established law, explain why that departure was — or was not — justified, and restated the correct conditions for the exercise of the stay discretion in terms that are consistent with principle, authority, and the interests of justice.
The Correct Test
Pending a formal departure from Ogyeadom, the writer submits that the correct test for a stay of execution application before the Supreme Court continues to be the established conditions: (i) whether the judgment debtor would suffer irreparable harm if a stay is refused and the appeal succeeds; (ii) whether the appeal raises a good arguable case — meaning a case which is neither frivolous nor vexatious but raises a genuine question for appellate determination; (iii) whether a refusal of the stay would render the appeal nugatory; and (iv) the balance of convenience between the parties.
These conditions are flexible enough to accommodate the full range of cases that come before the court. They do not set an impossible threshold. They recognise that the purpose of a stay application is not to pre-determine the appeal but to ensure that, pending its determination, justice is done between the parties. The "manifestly wrong" formulation achieves none of these purposes and should be abandoned.
Conclusion
The Ogyeadom decision is a departure from a well-settled line of authority on the conditions for a stay of execution. It was made without acknowledgment of the authorities it displaced and without reasoning that could justify the displacement. The test it appears to articulate — that a judgment must be "manifestly wrong" — is incompatible with the function of a stay of execution as an interlocutory remedy and has produced uncertainty and inconsistency in its application.
The decision must itself be departed from. The Supreme Court has, under Article 129(4) of the 1992 Constitution, the power to depart from its own prior decisions in the interests of justice. There is no more clear case for the exercise of that power than a prior decision which was itself a silent, unacknowledged, and unreasoned departure from established law. The Ogyeadom case is such a decision. The departure from it — when it comes — will itself be a vindication of the very principle of stare decisis which Ogyeadom undermined.