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HEADNOTES
This is an application for
stay of
execution pending the
determination of Applicant's
review application. With the
determination of the review,
this application should have
been considered moot but for the
matters that have been placed
before us with the application
for review. The 1st defendant
has filed affidavits presenting
evidence of the Plaintiff
receiving dividend on the very
Cal Bank shares that he came to
this court to pursue payment
for. In an affidavit in response
filed on 22nd March 2021, the
Plaintiff has admitted to this
venerable court that indeed, he
still owns the shares he came to
court to pursue payment for, and
he has been receiving dividend
on the same
shares
HELD
THE MAJORITY DECISION OF THE
COURT WAS READ BY YEBOAH CJ
We are of the opinion that the
application for Stay of
Execution was filed to
stay execution
pending the hearing and
determination of the motion for
Review Application. We think
that as the motion for Review
has been determined by the full
Bench, the application for Stay
of Execution pending Review is
moot
THE DISSENTING DECISION OF THE
COURT WAS READ BY DOTSE JSC
DOTSE JSC:-
In the circumstances, it is only
fit and just that the
application for stay of
execution should be granted, and
further execution of the
judgment of this court be
stayed. Further, it is ordered
that Plaintiff is to return
every payment received from the
judgment of this court into an
escrow account to be held in
Bank of Ghana pending a
resolution of who is entitled to
payment from defendant for the
shares in issue
STATUTES REFERRED TO IN JUDGMENT
CASES REFERRED TO IN JUDGMENT
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
YEBOAH CJ:-
DISSENTING DECISION
DOTSE JSC:-
COUNSEL
GOLDA DENYO WITH ABENA SARPONG
LED BY ACE ANKOMAH FOR THE 1ST
DEFENDANT/RESPONDENT/RESPONDENT/APPLICANT.
THADDEUS SORY WITH NANA BOAKYE
MENSAH-BONSU FOR THE
PLAINTIFF/ APPELLANT/
APPELLANT/RESPONDENT.
THE MAJORITY DECISION OF THE
COURT WAS READ BY YEBOAH CJ
YEBOAH CJ:-
We are of the opinion that the
application for Stay of
Execution was filed to
stay execution pending the
hearing and determination of the
motion for
Review Application. We think
that as the motion for Review
has been
determined by the full Bench,
the application for Stay of
Execution pending
Review is moot.
ANIN YEBOAH
(CHIEF JUSTICE)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
THE DISSENTING DECISION OF THE
COURT WAS READ BY DOTSE
JSC
DOTSE JSC:-
This is an application for stay
of execution pending the
determination of Applicant's
review application. With the
determination of the review,
this application should have
been considered moot but for the
matters that have been placed
before us with the application
for review.
The 1st defendant has filed
affidavits presenting evidence
of the Plaintiff receiving
dividend on the very Cal Bank
shares that he came to this
court to pursue payment for. In
an affidavit in response filed
on 22nd March 2021, the
Plaintiff has admitted to this
venerable court that indeed, he
still owns the shares he came to
court to pursue payment for, and
he has been receiving dividend
on the same shares.
He stated particularly in
paragraphs 6, 10 and 11 of the
affidavit as follows:
6. “That my cause of action
against 1st defendant therefore
arises from 1st defendant's
wrongful conduct as my bankers
for which the law requires 1st
defendant to pay the
interest in the manner settled
by law, my relationship with
the purchaser of the shares
being completely irrelevant in
the instant
proceedings”.
10. “That between the
judgment of the high court and
court of appeal, therefore, the
shares as per the said judgment
remained my shares BUT THAT the
high court reached the
conclusion that I remained the
owner of the shares EVEN THOUGH
the Registrar of the shares had
confirmed by way of an exhibit H
that the shares had been
transferred by me (as vendor) to
the purchaser.
11. That it is following the
judgment of the high court that
the shares were then
re-registered in my name and
following the judgment, to be
registered back in the
purchaser's name, for which
reason, the question as to
whether or not the purchaser of
the shares is entitled to the
dividend which at the time was
paid as the owner of the shares
which yielded them as determined
by the high court and the court
of appeal, is a totally
distinct and separate cause of
action not arising out of the
judgment of the court and the
applications for review pending
before the court. “
I must say that these
submissions are very difficult
to understand, especially in the
face of the exhibits that
millions of Ghana cedis have
actually been received by the
Plaintiff as dividend over the
years that he has been in court
insisting that the shares have
been sold, and the tacit
admission that these exhibits
speak truth. For if 'following
the judgment of the high court,
the shares were then
re-registered in his name and
following the judgment in this
court, they were to be
registered back in the
purchaser's name, under what
circumstances does the Plaintiff
explain the evidence that since
the judgment in this court, he
has actually been receiving
payment
for dividend on the same
shares that this court gave him
judgment to execute payment from
1st defendant?
We are unable to agree that
there would be a separate cause
of action between him and the
purchaser of the shares
regarding whether the Plaintiff
has been wrongly collecting
dividend on the shares that he
knew did not belong to him
Plaintiff, and so the only duty
of the Supreme Court is to
assist him execute judgment for
the purchase price for the
shares - while we ignore the
facts brought to our notice.
That will amount to justice
being buried.
It would be wrong for the
Plaintiff to appeal to this
court for an order that he had
sold his shares, when he knew
that the shares remained in his
name and dividend was being
computed on the shares for him
to enjoy.
And if even these activities
were implemented on the blind
side of the Plaintiff - and his
averments just quoted show that
he followed all the proceedings
around his shares with the
judgments rendered at the
various levels of court - it
would also be wrong for the
Plaintiff to actually seek to
execute the judgment that this
court gave him without knowledge
of this state of affairs, after
collecting the dividend for the
same shares that he had led the
court to accept that he sold in
2008.
I do not think any court of
equity and justice will agree
with the positions espoused by
Plaintiff that the fact of his
enjoying dividend on the same
shares that he is deemed to have
sold and for which he came to
this court to sign affidavits
that he is entitled to payment
for, is a matter irrelevant to
the determination of rights
between the parties.
I believe that, the Supreme
Court as the apex Court should
not put itself in a pigeon hole
to avoid doing substantial
justice at all times. Doing
substantial justice therefore
requires that this Court should
ensure that there is no failure
of justice of what we do as a
Court. In our resolve to do
substantial justice, I recommend
that we order the following
extra ordinary measures designed
to ensure that these court’s
orders are based on depositions
that have been admitted before
the Court and which should not
be glossed over.
In the circumstances, it is only
fit and just that the
application for stay of
execution should be granted, and
further execution of the
judgment of this court be
stayed. Further, it is ordered
that Plaintiff is to return
every payment received from the
judgment of this court into an
escrow account to be held in
Bank of Ghana pending a
resolution of who is entitled to
payment from defendant for the
shares in issue.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
TORKORNOO (MRS.) JSC:-
I agree with the position of my
learned brother Dotse JSC and
will grant the application for
stay of execution beyond this
decision on review. Further, I
agree that the Plaintiff should
return all moneys paid for the
alleged sale of the shares,
which have now been proved to be
a false position by the time he
came to the Supreme Court.
G. TORKORNOO (MRS.)
(JUSTICE OF THE SUPREME COURT)
HONYENUGA, JSC: -
I have just read the opinion of
my respected brother Dotse JSC
that the motion for stay of
execution be granted. I am in
total agreement with the opinion
expressed by my respected
brother.
C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
GOLDA DENYO WITH ABENA SARPONG
LED BY ACE ANKOMAH FOR THE 1ST
DEFENDANT/RESPONDENT/RESPONDENT/APPLICANT.
THADDEUS SORY WITH NANA BOAKYE
MENSAH-BONSU FOR THE
PLAINTIFF/
APPELLANT/APPELLANT/RESPONDENT.
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