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Execution - Stay of execution -
Special leave to appeal -
Whether or not serious
irreparable would be caused to
his client if the applicant was
not granted
HEADNOTES
The applicant herein has moved
this court praying for special
leave to appeal and for stay of
execution and/or suspension of
execution pending the
determination of this
application. In an affidavit
supporting this application
sworn to by one Giovani
Antonelli, the managing director
of the 2nd applicant
herein, it was deposed to that
on the 27th of June
2016, the Court of Appeal;
Coram: Marful-Sau JA sitting as
a single judge dismissed the
applicants’ motion for stay of
execution and/or suspension of
execution of the order of
interim preservation of
vehicles, machines and
equipments handled down by the
High court Accra
HELD
In my respectful opinion, I do not
think that the applicant
demonstrated to my satisfaction
that the discretion exercised by
the two lower courts was wrong
and warranted a stay or
suspension of the orders. It is
for the above reasons that I
refused the application.
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
KOJACH LTD v MULTICHOICE GHANA
LTD [2013-2014] 2 SCGLR 1494.
OWUSU
v OWUSU ANSAH [2007-
2008] 2 SCGLR 870
BALLMOSS
v MENSAH [1984-86] I GLR
724
BLUNT
v BLUNT [1943] AC 517 HL.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
ANIN YEBOAH, JSC :
COUNSEL
HON. ATTA AKYEA WITH HIM
STANLEY ADJEI FOR THE
DEFENDANTS
/APPELLANTS/APPLICANTS.
GEORGINA ARTHUR WITH HER
STEPHEN OBENG DARKO AND JOSEPH
OFORI MENSAH FOR THE PLAINTIFFS
RESPONDENTS/ RESPONDENTS.
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RULING
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ANIN YEBOAH, JSC :
The applicant herein has moved
this court praying for special
leave to appeal and for stay of
execution and/or suspension of
execution pending the
determination of this
application. In an affidavit
supporting this application
sworn to by one Giovani
Antonelli, the managing director
of the 2nd applicant
herein, it was deposed to that
on the 27th of June
2016, the Court of Appeal;
Coram: Marful-Sau JA sitting as
a single judge dismissed the
applicants’ motion for stay of
execution and/or suspension of
execution of the order of
interim preservation of
vehicles, machines and
equipments handled down by the
High court Accra dated the 26th
of April 2016.
The applicant felt aggrieved by
that decision of the single
judge and filed a motion to
discharge the order of the
single judge.
The Court of Appeal on
20/11/2016 after hearing the
parties dismissed the
application and affirmed the
single judge’s ruling.
The applicant has mounted this
application for special leave to
appeal against the order of the
Court of Appeal. In his
affidavit in support of this
application, the deponent in
paragraphs 10-13 inclusive, has
deposed to certain facts which
should influence this court in
this ruling. For a more
detailed record I reproduce the
said paragraph:
“10. I am advised by counsel
and verily believe same to be
true, that this case is a
novelty in terms of
pronouncement on the law
relating to interim preservation
of property by the highest court
of the land”
11. Furthermore, the case
raises the issue of the exercise
of the equitable jurisdiction of
the court in the nature of
preserving property pending
trial without regard to
irredeemable hardship and
irreparable loss to a corporate
body who must use the equipments
and machines to discharge its
obligation to third parties.
12. There is yet the need
for an authoritative
pronouncement on what the
subject-matter of a litigation
constitutes as to whether it is
borne out of the pleadings as
cleverly settled by lawyers or
the
substance therefrom as can be
gleaned by the written bargains
of the parties prior to the
litigation.
13. I am further advised
that there are weighty and not
fanciful grounds of appeal which
should be a major consideration
for the grant of this
application”
As it could be gleaned
from the above paragraphs
forming the crux of the
depositions in support of this
application, the applicant was
questioning the judges’
pronouncements on interim
preservation and the exercise of
the discretion which went
against the applicant.
The onus was respectfully
in my view, squarely on the
applicant. The applicant was
enjoined to satisfy the court
that the special leave to appeal
was being sought to raise
contentious points of law and
not just to prolong the
litigation involving
preservation of the machinery.
It turned out that the
applicant, irrespective of the
fact that he was adversely
affected by the orders of
preservation could not in my
respectful opinion demonstrate
that there was
any special circumstances
warranting the grant of special
leave. It was on the basis of
that, that I refused the grant
of special leave.
The remaining prayer by
the applicant was “an order for
stay of execution or suspension
of execution pending appeal”.
In arguing the application,
learned
counsel for the applicant
was of the view that serious
irreparable would be caused to
his client if the applicant was
not granted and indeed proceeded
to demonstrate that the damage
was apparent. Learned counsel
for the respondent thinks
otherwise.
Carefully reading the
reliefs under consideration
leads me to hold that the two
reliefs are not different in
substance. The effect of the
grant of one of the two reliefs
would in my view operate to put
on hold the orders in operation
granted by the High Court which
was affirmed by the Court of
Appeal. As learned counsel for
the applicant rightly pointed
out, the two reliefs sought are
all discretionary. In my
respectful view, the applicant
before this second appellate
court was enjoined by law to
demonstrate to this court that
the discretion of the Court of
Appeal in affirming the ruling
of the single justice was
wrongful exercise of
discretion. The applicant could
only do so if he could
demonstrate that the discretion
was exercised on wrong or
inadequate material or that the
court acted on misapprehension
of fact either by given weight
to irrelevant or unproved
matters or omitted to take
relevant matters into account:
See KOJACH LTD v
MULTICHOICE GHANA LTD
[2013-2014] 2 SCGLR 1494.
It has never been the case
that an exercise of discretion
could not be reversed or varied
on appeal. The appellate court
could do so if the circumstances
exist for this intervention.
See OWUSU v OWUSU
ANSAH [2007- 2008] 2 SCGLR
870 which relied on the previous
cases like BALLMOSS v
MENSAH [1984-86] I GLR 724
and BLUNT v BLUNT
[1943] AC 517 HL.
In my respectful opinion, I do
not think that the applicant
demonstrated to my satisfaction
that the discretion exercised by
the two lower courts was wrong
and warranted a stay or
suspension of the orders. It is
for the above reasons that I
refused the application.
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
COUNSEL
HON. ATTA AKYEA WITH HIM
STANLEY ADJEI FOR THE
DEFENDANTS
/APPELLANTS/APPLICANTS.
GEORGINA ARTHUR WITH HER
STEPHEN OBENG DARKO AND JOSEPH
OFORI MENSAH FOR THE PLAINTIFFS
RESPONDENTS/ RESPONDENTS. |
