THE DUTY OF THE LEGAL PRACTITIONER IS NOT ONLY TO HIS CLIENT

BUT TO THE COURT AS WELL.

JOSEPH v. JEBEILE AND ANOTHER [1963] 1 GLR 387-392

IN THE SUPREME COURT

OLLENNU, BLAY AND AKUFO-ADDO JJ.S.C

HEADNOTES

Held:

(3) Generally, where an application for stay of execution pending

appeal is considered in a case involving, inter alia, payment of money,
the main consideration should be not so much that the victorious party
is being deprived of the fruits of his victory as what the position of a
defeated party would be who had had to pay up or surrender some
legal right only to find himself successful on appeal. Generally where
large sums of money are involved the policy of the law would not be
against staying execution; but when execution is stayed and
circumstances permit, it should be on the condition that the judgment-
debtor pays into court the amount of money involved, or, when
refused, on the condition that the judgment-creditor gives security
which is approved by the judge.

(4) Where a judgment-debtor pays the judgment-debt and costs into

court as a condition of stay of execution being granted to him by the
Supreme Court and before the court has made any order in the matter,
it is improper conduct on the part of counsel to advise the registrar of
the court to pay out that money to the judgment-creditor, for that is
the very act which the application is intended to prevent and it
amounts to flouting the authority of the court.

JUDGMENT OF AKUFO-ADDO J.S.C.

On the 8th April, 1963, we heard the application and granted stay of
execution on the condition that money paid into the High Court,
Kumasi, to cover the judgment-debt should remain in custodia legis
pending the outcome of the appeal from the judgment aforesaid which
the applicants had lodged to this court. We stated when granting stay
of execution that we would give our reasons for that ruling later, and
we proceed to do so now.

Generally speaking it is not our view that the policy of the law in this
country should be against staying execution pending appeal especially
where large sums of money are involved, and we would urge that when
execution is stayed it should, where the circumstances permit, be on
the condition that the judgment-debtor pay into court the amount of
money involved, or, when refused, on the condition that the judgment-
creditor give security as aforesaid and approved by the judge.

Any situation created by a judicial act, done either inadvertently or

callously, which makes it impossible for a successful appellant to
recover money paid, or any interest in property or other legal rights
surrendered, under a judgment vacated on appeal does a disservice to
the course of justice, if only because it undermines public confidence in
the administration of justice.

After the applicants' application for stay of execution had been refused
by the court below on the 13th March, 1963, the respondent, the
judgment creditor, sought to go into execution and actually had some
properties of the applicants attached under a writ of fi.fa. On the 14th
March, 1963, the applicants, the judgment-debtors, filed their
application in this court, and according to the registrar of this court he
thereupon by telephone informed the registrar of the court below of
the application and requested that nothing be done in the matter until
the application had been disposed of; this information and request
were later confirmed by a telegram. On the 16th March, 1963, the
applicants paid the judgment-debt and costs into the court below as a
foundation for their offer to deposit the money in court as a condition
of stay of execution being granted them by this court. A day or two
after the money had been deposited in the court below, and although
the respondent had been served with notice of the application to this
court on the 15th March, 1963, the money so deposited was paid out
to the respondent by the registrar of the court below.

We do not know why the registrar of the court below ignored the
request made to him by the registrar of this court and paid out the
money to the respondent, nor do we know the extent of counsel's
responsibility for the withdrawal of the money, but we would like to
state that this court views with the greatest disfavour any action by
registrars or by counsel or by parties to litigation which in its nature has
the effect of stultifying any consideration that this court, or any other
court for that matter, has to give to matters before it. Registrars are
particularly warned that when interim applications are made to this
court in matters arising out of proceedings in their courts, they shall on
no account take any step or do anything in such matters without the
express authorisation of the registrar of this court. It is not a proper
exercise of their duties that court registrars should lend their services
to acts that can only have the effect of defeating the ends of justice.
As far as counsel who have to advise their clients in such matters are
concerned we can do no worse than refer them, as a guide to their
conduct, to the decision of the Court of Appeal in Soromani v. Buachi.4
This was a case in which the plaintiff, Soromani, brought an action in
the High Court, Kumasi, against a mortgagor, a member of his family,
and the mortgagee in respect of property which the mortgagor had
mortgaged to the mortgagee. His claim was that the mortgaged
property was family property and the mortgagor, a member of the
family, had no right to give away the property. The mortgagee was
exercising his right of sale under the mortgage and the plaintiff's action
was taken with the object of setting aside the deed of mortgage and
thus saving the property from being sold. The auctioneer to whom the
mortgagee had entrusted the sale of the property was also sued. The
plaintiff, at the time of issuing his writ, also filed an application for an
interim injunction to restrain the sale of the property pending the
determination of the suit. While the application for interim injunction
was pending and before it was heard the property was sold. The
hearing of the application had been scheduled for a date later than the
date fixed by the auctioneer for the sale, and the mortgagee and the
auctioneer ignored the existence of the application for interim
injunction of which notice had been duly served on them and carried
out the sale. It turned out that the mortgagee and the auctioneer
acted on counsel's advice, and Sarkodee-Adoo J. (as he then was)
before whom the matter came took a very serious view of the conduct
of counsel in this respect and awarded costs of two hundred guineas
against counsel personally. Counsel appealed to the Court of Appeal
against that order. The Court of Appeal reduced the amount of the
costs awarded but otherwise endorsed the principle underlying
Sarkodee-Adoo J.'s action

It is perhaps unnecessary to stress the principle that the duty of a

legal practitioner who has been engaged by a litigant is not only to his
client but also to the court of which he is an officer, and it is essential
that he should not permit these two facets of his duty to be in conflict
with each other.

When an application is made to a court for an interim order that court

becomes seised of the matter to the extent covered by the prayer
contained in the application, and until the court makes an order in the
matter it is an improper conduct for a legal practitioner to advise the
doing of the very act which the application is intended to prevent, for it
amounts to flouting the authority of the court. It is not a legitimate
exercise of a legal practitioner's duty either to his client or to the court.

DECISION

Stay of execution granted.