|
Execution - Stay of execution -
whether or not the warehouse
floor had failed because of
inferior materials and
workmanship - whether or not
trucks had been allowed to come
into the warehouse without
regard to the concrete strength
of the warehouse floor
HEADNOTES
The brief facts of this
application are that a judgment
for US$2 million damages was
given by the High Court in
favour of the respondent against
the applicant. Upon the
transmission of the record of
appeal to the Court of Appeal
the applicant unsuccessfully
thereat applied for a stay of
execution of the said judgment
pending the determination of the
appeal by the court of Appeal.
Having appealed to this court
against the said refusal the
applicant again applied
unsuccessfully to the Court of
Appeal for a stay of
executiontherefore the
appropriate place for the
Application is the Supreme
Court.
HELD :-
It is
clear that rule 20 of the
Supreme Court Rules, 1996
(C.116) seeks to cater for the
interest, on the one hand of the
judgment debtor in ensuring that
his worthy appeal is not
rendered nugatory and the
interest, on the other hand, of
not denying the judgment
creditor the fruits of his
victory, by providing a
tabulated procedure on the issue
of an effect of an appeal on a
judgment. Like any statute,
this court has sought to grant
relief where to deny the same
would be absurd or dehors the
reasonable contemplation of the
legislature but it cannot negate
the legitimate ambit and purport
of the legislation on stay of
execution, which the applicant
erroneously thinks this court
has held that it can do. The
true remedy is a simple
amendment of the procedural
rules on stay of execution by
simply having it legislated that
an appellate court may grant any
interlocutory relief it deems
just pending the determination
of any appeal before it. For all
the foregoing reasons we dismiss
this application.
DISSENTING OPINION
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, 1996
(C.116)
CASES REFERRED TO IN JUDGMENT
Golden
Beach Hotels (Ghana) Ltd v Pack
Plus International Ltd.
[2012] SCGLR 452
Merchant
Bank Ghana Ltd. v Similar Ways
Ltd, [2012] 1 SCGLR 440.
Standard
Chartered (Ghana) Ltd. v Western
Hardwood Ltd. [2009] SCGLR 196
Ofosu-Addo v Graphic
Communications Group Ltd (2011)
1 SCGLR 355
Republic
v High Court, Kumasi, Ex Parte
Bank of Ghana, Mr. Kwesi
Amissah-Arthur & Franklin
Belnye-Applicants, Rev. Rocher
De-Graft Sefa & Another –
Interested Parties, suit number
J5/14/2013
Republic
v High Court, Kumasi, Ex Parte
Bank of Ghana Mr. Kwesi
Amissah-Arthus & Franklin Belnye
– Applicants, Samuel Gyamfi &
693 Others-Interested Parties,
Suit No. J5/15/2013 dated 10th
April 2013
British
Airways v Attorney-General
(1996-97) SCGLR 541
Accra
Recreational Complex v Lands
Commission (2007-2008)1 SCGLR
108.
BOOKS REFERRED TO IN JUDGMENT
EXECUTABLE – NON
EXECUTABLE ORDERS – THE
PREDICAMENT OF THE JUDGMENT
DEBTOR IN STAYING EXECUTION OF
JUDGMENT PENDING APPEAL Dotse
JSC
DELIVERING THE LEADING JUDGMENT
COUNSEL
KWAME
BOAFO AKUFFO FOR THE APPLICANT.
EDEM KUTSIENYO ( LED BY LAWRENCE
OTOO) FOR THE RESPONDENT
------------------------------------------------------------------------------------------------------------------
RULING
------------------------------------------------------------------------------------------------------------------
ATUGUBA JSC:
The brief
facts of this application are
that a judgment for US$2 million
damages was given by the High
Court in favour of the
respondent against the
applicant. Upon the
transmission of the record of
appeal to the Court of Appeal
the applicant unsuccessfully
thereat applied for a stay of
execution of the said judgment
pending the determination of the
appeal by the court of Appeal.
Having appealed to this court
against the said refusal the
applicant again applied
unsuccessfully to the Court of
Appeal for a stay of execution.
The course of events from that
stage is best captured in
paragraphs 9 to 17 of the
applicant’s affidavit in support
of its present application
before this court.
They are
as follows:
“9. That pending the
determination of the
Interlocutory Appeal to this
Court, the Applicant filed an
Application before the Court of
Appeal seeking to suspend any
steps on the Entry of Judgment
by the Plaintiff/Respondent
pending the determination of the
Interlocutory Appeal (Exhibit
KBA “4”)
10. that on the 25th
of February, 2015 the Court of
Appeal Coram, Marfo Sau J.A.
(Presiding), Aduamah Osei J.A.
and L. L. Mensah J.A. heard the
Application and dismissed same
on the ground that the decision
of the Court of Appeal (Exhibit
KBA “2”) was binding upon them
and therefore the appropriate
place for the Application is the
Supreme Court. The Applicant has
since applied for the ruling of
the Court of Appeal. Attached
and marked as Exhibit “KBA 5” is
evidence of same.
11. That in the
circumstances, this Application
is thus a repeat Application.
12. That the Applicant is
of the respectful position that
the “nugatory test” adopted by
the Court of Appeal in Exhibit
KBA “3” did not take into
consideration the clear fact
that the Respondent’s position
that it was a going concern
capable of refunding the
Judgment debt in the event that
the Applicant succeeded in the
Appeal, was a bald claim for
there was nothing supportive
of same.
13. That at all material
times, the issue between the
parties was whether or not the
warehouse floor had failed
because of inferior materials
and workmanship
(Plaintiff/Respondent/Respondent’s
contention) or because the
Plaintiff/Respondent had allowed
trucks to come into the
warehouse without regard to the
concrete strength of the
warehouse floor.
(Defendant/Appellant/Applicant’s
contention.)
14. That the High Court
awarded the
Plaintiff/Respondent/Respondent
the sum of Two Million United
States Dollars (US$2,000,000)
and that in the event that the
Appeal succeeds, the
Defendant/Appellant/Applicant
will be saddled with a worthless
warehouse. Attached and marked
as Exhibit “KBA 6” is a copy of
the Judgment of the High Court.
15. That above all, the
recovery of any sums paid as
Judgment debt from the
Plaintiff/Respondent may lead to
further litigation which can
easily be avoided by a stay of
execution.
16. That in the
circumstances, the Applicant
respectfully, states that the
Court of Appeal in the
application of the “nugatory
test” thereby violated the
integrity of the Appellate
process.
17. That the Court of
Appeal did not consider the fact
that the Grounds of Appeal
raised an arguable Appeal and
the prospect that a successful
Appeal would be rendered
nugatory because an examination
of the Record of Appeal does not
show that the
Plaintiff/Respondent/Respondent
has any security upon which the
Applicant can fall to recover
the Judgment debt if same is
paid before the determination of
the Appeal.”
In
arguing the application before
us Mr. Kwame Akuffo relied on
the cases of Golden Beach
Hotels (Ghana) Ltd v Pack Plus
International Ltd. [2012]
SCGLR 452 and Merchant Bank
Ghana Ltd. v Similar Ways Ltd,
[2012] 1 SCGLR 440.
However
as explained by our respected
brother Dotse JSC in a paper
presented by him at the 2013/14
Annual Conference of the Ghana
Bar Association held at Ho
Polytechnic on 17/9/2013 on the
topic “EXECUTABLE – NON
EXECUTABLE ORDERS – THE
PREDICAMENT OF THE JUDGMENT
DEBTOR IN STAYING EXECUTION OF
JUDGMENT PENDING APPEAL” there
are “cases where the court has
taken some different positions
all aimed at addressing the
cardinal issues of justice
raised in the cases. But this
trend appears to have been
gently criticized, refined and
fine tuned by the decision of
the Supreme Court in the case of
Golden Beach Hotels (Ghana)
Ltd v Pack Plus International
Ltd. [2012] SCGLR 452, where
my respected and learned
brother, Date-Bah JSC, speaking
on behalf of the Court on issues
relating to executable and
non-executable orders stated as
follows:-
“In the wake of these two
authorities namely, Merchant
Bank Ghana Ltd. v Similar Ways
Ltd, [2012] 1 SCGLR 440 and
Standard Chartered (Ghana)
Ltd. v Western Hardwood Ltd.
[2009] SCGLR 196 we think that
this court needs to spell out
the boundaries between orders
for stay of execution and orders
for suspension of the orders of
courts below or for stay of
proceedings (which have been
construed by the Supreme Court
in the Standard Chartered Bank
case (per Atuguba JSC) as
including steps required to be
taken pursuant to orders of the
court below. There is a risk of
this court descending into a
morass of sophistry, with
applications for orders for stay
of execution formulated as
applications for suspensions of
the orders of the court below or
as applications for stay of
proceedings. Thus, the
preconditions for a successful
application for an order for
suspension of the order of a
court below or for the stay of
proceedings (including execution
process) need to be spelt out
clearly and authoritatively,
otherwise the received learning
on executable and non-executable
orders would be rendered
irrelevant. 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”.
Date-Bah
JSC continued to elucidate the
unanimous decision of the Court
in the said case in the
following hallowed terms:-
“On the facts of the present
case, we are not inclined to
grant an order for suspension of
the order of the Court of Appeal
nor to stay any proceedings
consequent on that order. The
applicant has not demonstrated
such exceptional circumstances
as to justify, in our view, the
exercise of the extraordinary
discretion to suspend the orders
of Courts below or to stay
proceedings, liberally
construed, on the lines
established in the two cases
cited above, namely, Merchant
Bank Ghana Ltd v Similar Ways
Ltd (supra) and Standard
Chartered Bank (Ghana) Ltd v
Western Hard Wood Ltd supra.
We would like to reiterate that
the range of 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.”
We do not
see anything that contradicts
this court’s unanimous decision
in the Golden Beach Hotel
case when it held as per the
headnote (6) in Ofosu-Addo v
Graphic Communications Group Ltd
(2011) 1 SCGLR 355 that:
“(6) The court in granting or
refusing an application for stay
of execution pending the
determination of an appeal would
act according to well-settled
principles, enabling the court
to bridge the gap in the
intervening period between the
delivery of the judgment in the
court below and the time that
the appeal would finally be
determined; that would enable
the court to deal with the
rights of the parties in the
pending appeal by the grant of
interim or provisional remedies,
which among others, would ensure
that a successful appeal was not
rendered nugatory by the making
of orders such as that made in
the instant case.”
A
statement of Dotse JSC in his
aforequoted erudite paper
however can evoke such an
impression. He said:
“From the facts of the Merchant
Bank case, it appeared my
respected brethren therein were
confronted with peculiar facts
and circumstances of that
particular case and were
desirous of ingeniously
designing a legal proposition to
manage the situation as a Court
of last resort. This practice
is not uncommon, as it was done
by us in the recent consolidated
unreported case of Republic v
High Court, Kumasi, Ex Parte
Bank of Ghana, Mr. Kwesi
Amissah-Arthur & Franklin
Belnye-Applicants, Rev. Rocher
De-Graft Sefa & Another –
Interested Parties, suit
number J5/14/2013 and
Republic v High Court, Kumasi,
Ex Parte Bank of Ghana Mr. Kwesi
Amissah-Arthus & Franklin Belnye
– Applicants, Samuel Gyamfi
& 693 Others-Interested Parties,
Suit No. J5/15/2013 dated 10th
April 2013 coram, Wood C.J.,
Dotse, Yeboah, Benin, Akamba
JJSC”
However
those powers were exercised
under the supervisory
jurisdiction of this court
whereunder this court has very
wide powers, as explained by
this court in several cases,
under article 132 of the
constitution, which provides as
follows:
“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.” See for
example British Airways v
Attorney-General (1996-97)
SCGLR 541 and Accra
Recreational Complex v Lands
Commission (2007-2008)1
SCGLR 108.
One would
nonetheless have to scrutinize
those judgments carefully, so as
to ascertain their real ambit
and to avoid conflicts with
other statutory provisions.
Conclusion
In view
of this court’s decision in the
Golden Beach case which
clearly explained the ambit of
this court’s decision in the
Similar Ways case, the
applicant’s counsel was not
entitled to indulge in the wild
brilliance he sought to exhibit
before this court in relation to
that decision.
This
application does not come within
the exceptional categories of
cases referred to in the
Golden Beach case and
therefore fails.
It is
clear that rule 20 of the
Supreme Court Rules, 1996
(C.116) seeks to cater for the
interest, on the one hand of the
judgment debtor in ensuring that
his worthy appeal is not
rendered nugatory and the
interest, on the other hand, of
not denying the judgment
creditor the fruits of his
victory, by providing a
tabulated procedure on the issue
of an effect of an appeal on a
judgment. Like any statute,
this court has sought to grant
relief where to deny the same
would be absurd or dehors the
reasonable contemplation of the
legislature but it cannot negate
the legitimate ambit and purport
of the legislation on stay of
execution, which the applicant
erroneously thinks this court
has held that it can do.
The true
remedy is a simple amendment of
the procedural rules on stay of
execution by simply having it
legislated that an appellate
court may grant any
interlocutory relief it deems
just pending the determination
of any appeal before it.
For all
the foregoing reasons we dismiss
this application.
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) S. A. B. AKUFFO
(MS)
JUSTICE OF THE SUPREME COURT
(SGD) S. O. A. ADINYIRA
(MRS)
JUSTICE OF THE SUPREME COURT
(SGD) N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME COURT
COUNSEL
KWAME
BOAFO AKUFFO FOR THE APPLICANT.
EDEM KUTSIENYO ( LED BY LAWRENCE OTOO)
FOR THE RESPONDENT. |
