A. Introduction
This piece responds to Justice Eric Kyei Baffour's critique of the Supreme Court's decision in Republic v High Court (Criminal Division 9), Accra Ex Parte Ecobank Ghana Ltd; Origin 8 & Anor. The core issue was whether C.I. 132 removed the trial court's jurisdiction to stay the execution of a judgment pending appeal. Baffour argued that C.I. 132 was an amendment through revocation, stripping trial courts of this authority.
The writer contends the Supreme Court's conclusion was correct: C.I. 132 did not take away that jurisdiction. The instrument lacked the express language required to overturn a well-settled constitutional practice, and the rules of procedure cannot in any event create or remove jurisdiction — that is the exclusive province of substantive legislation.
B. Justice Kyei Baffour's Disagreement
Baffour posited that C.I. 132's true effect was to remove trial court jurisdiction before the record's transmission to the appellate court. He advocated for purposive statutory interpretation, citing Attorney-General (WA) v Marquet to support his amendment-by-revocation theory.
The writer identifies this as the Achilles heel of Baffour's argument. The Marquet authority does not support the proposition for which it is cited — and C.I. 132's own language defeats the theory before it can take hold.
C. Amendment and Revocation — Are They the Same?
The Marquet case actually distinguished amendment (altering legal meaning) from repeal or revocation (completely rescinding a provision). C.I. 132 itself maintains this distinction with precision: Rule 1 states "Rule 27 of C.I. 19 amended," while Rules 2 and 3 state that earlier rules are "revoked." Where the draftsman wanted to revoke, the instrument says so expressly. Where it says "amended," it means only amendment — not abolition.
Baffour's amendment-by-revocation theory cannot survive this textual analysis. It attributes to C.I. 132 an effect that its own language contradicts.
D. What Was the Amendment?
The original Rule 27(1) of C.I. 19 stated: "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." C.I. 132 replaced this with: "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."
Two changes occurred: removal of "or of proceedings" and deletion of the words "the court below," leaving only "the Court." The question posed is whether the deletion of "the court below" necessarily bars lower courts from entertaining stay applications. The answer, the writer argues, is no — and the reason lies in the constitutional status of the inherent jurisdiction of the courts.
E. Ex Parte Abodakpi
In Republic v Fast Track Division, Accra; Ex Parte Daniel Abodakpi, the Supreme Court interpreted similar language and, using plain literal interpretation, held that "the Court" meant the Court of Appeal exclusively. This interpretation would have supported Baffour's position — making the Court of Appeal the first forum for stay applications after an appeal is filed.
However, that position was subsequently and explicitly departed from. Abodakpi no longer represents the law.
F. Ex Parte Abodakpi Is Now Dead
Republic v High Court, Accra; Ex Parte: Magna International Transport Ltd (2018) departed from Abodakpi. The Supreme Court reaffirmed that every court has an inherent jurisdiction to stay proceedings. This common law right has been elevated to constitutional status by Article 11(e) of the 1992 Constitution, which means it cannot be overridden by procedural rules — including rules of court — without express language of the clearest kind.
Where a practice of the courts is well settled, it cannot be upset by statute except by use of express language. C.I. 132 contains no such language.
Origin 8 relied on Magna Transport, as it was bound to do under the constitutional stare decisis obligations imposed by Article 129(3). Baffour himself accepts Magna Transport as sound law — which creates an insuperable tension with his critique of Origin 8.
G. Did C.I. 132 Clearly Change the Practice?
The Magna Transport principle is clear: where a practice of the courts is well settled, it cannot be upset by statute except by use of express language. C.I. 132, gazetted on 6 October 2020, contained no explicit language changing the established practice regarding stay applications before trial courts. The learned members of the Rules of Court Committee knew, or ought to have known, about Magna Transport when drafting C.I. 132. Their failure to use express language to depart from that settled practice is dispositive.
H. Did Rule 27(1) C.I. 19 Create Jurisdiction?
Baffour's claim that C.I. 132 "stripped trial courts of jurisdiction" rests on a misconception about what procedural rules can do. In Republic v High Court (Commercial Div) Tamale, Ex parte Dakpem Zoboguna Henry Kaleem, the Supreme Court held that the jurisdiction of a court can only be granted by substantive legislation — not by a body charged with making rules of procedure.
If procedural rules cannot create jurisdiction, they equally cannot remove it. C.I. 132, as a procedural instrument made under the Courts Act, lacked the capacity to strip the trial court of the inherent jurisdiction that it has always possessed.
J. Legislative Intent
Legislative intent is, as Lord Watson recognised, a very slippery phrase. Parliament — or a rule-making body — has no singular mind. Attributing collective intention to a group of draftsmen is a fiction of legal reasoning, and one that must be handled with particular care when the consequence is to override a well-settled constitutional practice. Without direct evidence of a clear intention to depart from Magna Transport, the invocation of legislative intent cannot carry the argument.
K. Legislative Purpose
Baffour suggested C.I. 132's purpose was to eliminate the "drudgery" of dual applications — first to trial courts, then to appellate courts upon refusal — and cited Ghana's World Bank ranking (118th of 189 for business environment) and enforcement delays. The writer counters that this reasoning is disconnected from the actual causes of enforcement delay, which stem from trial duration, judgment quality, and asset location — not from the existence of two tiers of stay application.
A purposive approach that focuses on C.I. 19's broader architecture and its integration with the common law is more appropriate than isolating a single provision of C.I. 132 and attributing to it a sweeping constitutional effect.
L. Conclusion
Despite its sophistry in some areas, Origin 8 reached the correct conclusion through superior methodology. C.I. 132 did not — and could not — strip trial courts of the inherent jurisdiction to grant a stay of execution. The instrument lacked the express language required; the rules of procedure lacked the capacity; and Magna Transport, as constitutional precedent, stood directly in the way.
The writer's further view is that C.I. 132 should never have been enacted in the first place. Stay applications represent a minimal obstacle to judgment enforcement compared to the broader systemic delays that afflict Ghana's commercial litigation landscape. The instrument adds little value and has generated considerable confusion — a result that the legislature could have avoided by leaving well alone.