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R U L I N G
On the 23rd July,
2010 this Court presided over by
His Lordship Mr. Justice P. K.
Gyeasayor, J.A. sitting as an
additional High Court Judge gave
judgment in favour of the
Plaintiff for the sum of
GH¢160,000.00 and cost of
GH¢2,000.00. Dissatisfied with
the said judgment the defendant
on 6th September,
2010 filed a Notice of Appeal
and also filed a motion of stay
of execution the same day. The
ruling I am about to deliver is
in respect of the motion for
stay of execution.
The grounds in support of the
instant application as deposed
to in support of same by Bugonu
Yakubu, a law clerk of the
defendant company are basically
three namely:
1.
That the appeal raises serious
legal and triable issues and has
a real chance of success before
the Court of Appeal.
2.
That unless the execution of the
judgment of this Court is stayed
the Defendant/Applicant will
suffer irreparable damage that
in the likely event that the
appeal is successful the success
is likely to be rendered
nugatory.
3.
That the applicant is a
reputable Bank which will be in
the position to pay the
Plaintiff whatever amount the
Court of Appeal may determine to
be due to the Plaintiff.
Unfortunately the same cannot be
said of the Plaintiff.
In response the Plaintiff
countered the
defendant/Applicant’s
depositions thus:
a.
That the Defendant’s appeal does
not raise any serious legal and
triable issues to be determined
by the Court of Appeal and that
it is just a ruse contrived by
the Defendant to frustrate the
Plaintiff from enjoying the
fruits of its victory. The
appeal therefore has no chance
of success.
b.
The Defendant has failed to
demonstrate to this Court the
nature of the hardship it would
suffer if the application is
refused and in any case hardship
per se is not a legal
justification for the grant of
such an application.
c.
That in the unlikely event of
the Defendant’s appeal
succeeding it is capable of
retrieving its money from the
Plaintiff for the latter is a
viable and thriving road
construction business as well as
providing other services and
owning assets including landed
property and a fleet of
vehicles.
d.
That the Plaintiff requires its
just debt in order for it to be
able to continue to run its
business and as well pay its
employees and taxes due the
state.
This Court has given its
judgment after trial. The Court
has considered all the legal
issues involved and has
expressed its candid opinion.
The Defendant is entitled to
appeal against the opinion of
this Court which it has readily
done. But would that mean that
the Plaintiff/Judgment/Creditor
should wait for the outcome of
the appeal before reaping the
fruits of his victory? That is
now the issue. This Court and
other Superior Courts have
stated the law in similar
situations. In Joseph v.
Jebeile and Another [1963] 1 GLR
387 the Supreme held at
page 390 thus:
“… it is wholly immaterial what
view a trial judge takes of the
correctness of his own judgment
or of the would be appellant
changes on appeal… . It is the
paramount duty of a Court to
which an application for stay of
execution pending appeal is made
to see that the appeal, if
successful, is not nugatory”.
In the unreported decision of
the Supreme Court dated 11th
March, 2009 in Civil Appeal No.
J4/24/2008 in the case of
Prince William Tagoe v. Albert
G.K. Acquah the Court
followed its opinion in
Joseph v. Jebeile and Another
supra when it held thus:
“It has been the practice that
courts do not put fetters on the
victorious party to prevent them
from reaping the grants of their
victory in legal proceedings by
granting stay of execution. It
will, however, grant a stay of
execution if the appellant
demonstrates that there are
arguable points of law to be
canvassed on appeal or that the
circumstance of the case is such
that if a stay is not granted
any allowance of the appeal will
be nugatory.”
It has been argued by the
Defendant that this Court is
wrong in law in holding that the
Defendant could not transfer
certain sums from the
Plaintiff’s account before the
term of the overdraft expired.
However, Counsel cited no
authority to buttress his
submissions so it could not be
said that the Defendant has
demonstrated that there are
arguable points of law.
Secondly the Defendant/Applicant
in all sincerity cannot be heard
to say that if it succeeds on
appeal its victory would be
rendered nugatory for the
Plaintiff is a customer of the
Defendant holding several
accounts which it uses for the
operations of its business. The
Defendant has so much confidence
in the financial credibility of
the Plaintiff such that it could
grant it various facilities.
The Plaintiff is still a going
concern with various properties
including land and vehicles. So
in the event that the Defendant
succeeds on appeal it can easily
recover the judgment debt that
it has paid.
Indeed the instant application
is a ruse to prevent the
Plaintiff from enjoying the
fruits of its judgment. As
indicated by the Supreme Court
in Prince William Tagoe v.
Albert G. K. Acquah
supra Courts do not put fetters
on any victorious party to
prevent it from reaping the
fruits of his victory by
granting stay of execution.
The Defendant’s application
therefore lacks merit and same
is hereby dismissed.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT
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