|
Constitutional law -
Constitution 1992 - Supreme
Court Rules, 1996, C. I. 16. -
Reversal of the ruling of a
single Judge - Stay of execution
- whether the Court of
Appeal exercised independent
views on the application made
before it - Whether or not a
single Judge in a repeat
application, had to consider the
applications on their own
independent assessments and
merits. -
HEADNOTES
The
Applicants, a reputable
Commercial Bank in Ghana, filed
claims against the Respondents
herein in the Commercial
Division of the High Court in
respect of various sums of money
outstanding under overdraft and
or credit facilities extended to
the 1st Respondents,
who are a limited liability
company in Ghana, carrying out
the business of oil trading,
supply of petroleum products,
bunkering among others. The 2nd
and 3rd Respondents
are directors of the 1st
Respondent company. Included in
the claims against the
Respondents in the High Court
was a claim for interest on
overdraft/credit facilities
extended to them as well as
penal interest of 10% on the
sums claimed. The Respondents
denied the claims against them
and instead endorsed a
counterclaim against the
Applicants by which they claimed
several declaratory and other
judicial reliefs plus recovery
of various sums of money
endorsed therein against the
Applicants.The Commercial
Division of the High Court,
Accra dismissed the entirety of
the Applicant’s claims against
the Respondents, but granted in
part the latter’s counterclaim
in excess of about GH¢80,000,000
plus. The Applicants appealed
the judgment on the counterclaim
in favour of the Respondents.
HELD :-
Fact of
the matter is that, once the
judgment figure is on the high
side, any percentage payment
will equally be on the high
side.Considering the fact that a
victorious party is entitled to
the fruits of his judgment
unless a strong contrary
intention is shown such as the
likelihood of success,
irreparable damage or harm being
caused to the other party, then
the time honoured tradition of
allowing a victorious party
enjoy the fruits of his judgment
must be applied.In view of all
the above factors enumerated
supra, we are convinced that the
Applicants have not shown any
good and sound basis in law to
warrant a reversal of the
decision of the single Judge on
20th November 2014.
We accordingly refuse and
dismiss the instant application.
STATUTES REFERRED TO IN JUDGMENT
Constitution 1992
Supreme Court Rules,
1996, C. I. 16.
CASES REFERRED TO IN JUDGMENT
Ofosu
Addo v Graphic Communications
[2011] 1 SCGLR 355
Republic
v Court of Appeal, Ex-parte Sidi
[1987-88] 2 GLR 170 at 174.
Golden
Beach Hotels (GH) Ltd v Pack
Plus Int. Ltd. [2012] 1 SCGLR
452
sBOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DOTSE JSC:-
COUNSEL
KWESI FYNN ESQ. FOR THE
PLAINTIFFS/APPELLANTS/APPLICANTS/APPLICANTS
.
CLARANCE TAGOE ESQ. WITH HIM
KOFI TWUMASI ANOKYE FOR THE
DEFENDANTS/RESPONDENTS/RESPONDENTS/RESPONDENTS
-------------------------------------------------------------------------------------------------------------------------------------------------
RULING
-------------------------------------------------------------------------------------------------------------------------------------------------
DOTSE JSC:-
This
Ruling is at the instance of an
application by the
Plaintiffs/Appellants/Applicants,
hereafter referred to as the
Applicants, seeking a variation,
discharge or reversal of the
ruling of a single Judge of this
Court, dated 20th
November 2014 pursuant to
article 134 (b) of the
Constitution 1992 and Rule 73 of
the Supreme Court Rules, 1996,
C. I. 16.
By the
ruling of the single Judge dated
20th November 2014,
an application for stay of
execution and proceedings or
suspension of the entry of
judgment in favour of the
Defendants/Respondents/Respondents,
hereafter referred to as
Respondents was refused.
FACTS OF THE CASE
The
Applicants, a reputable
Commercial Bank in Ghana, filed
claims against the Respondents
herein in the Commercial
Division of the High Court in
respect of various sums of money
outstanding under overdraft and
or credit facilities extended to
the 1st Respondents,
who are a limited liability
company in Ghana, carrying out
the business of oil trading,
supply of petroleum products,
bunkering among others.
The 2nd
and 3rd Respondents
are directors of the 1st
Respondent company. Included in
the claims against the
Respondents in the High Court
was a claim for interest on
overdraft/credit facilities
extended to them as well as
penal interest of 10% on the
sums claimed. The Respondents
denied the claims against them
and instead endorsed a
counterclaim against the
Applicants by which they claimed
several declaratory and other
judicial reliefs plus recovery
of various sums of money
endorsed therein against the
Applicants.
The
Commercial Division of the High
Court, Accra dismissed the
entirety of the Applicant’s
claims against the Respondents,
but granted in part the latter’s
counterclaim in excess of about
GH¢80,000,000 plus.
The
Applicants appealed the judgment
on the counterclaim in favour of
the Respondents. Following an
application for stay of
execution filed in the trial
High Court by the Applicants,
the High Court on the 5th
day of February 2014 granted
same in the following terms:-
“The
Plaintiff/Applicant shall pay to
the 1st
Defendant/Respondent the sum
equivalent to 25% of
the entire judgment debt as set
out in the Entry of
Judgment after Trial filed by
the Defendants/Respondents.”
It is
instructive to note that, the
trial High Court also ordered
the 2nd and 3rd
Respondents herein to file an
undertaking in the same terms as
they provided to the Applicants
during the transaction which
gave rise to the action so that
they shall be in a position to
refund fully all monies the
Applicants shall pay to the 1st
Respondent in partial
satisfaction of the judgment
debt in this suit in case the
appeal by the Applicants are
successful.
Following
the unsuccessful attempts by the
Applicants to have the repeat
applications for stay of
execution of the orders of the
High Court granted in the Court
of Appeal, the Applicants filed
the repeat application to the
same effect before the single
Judge which as stated earlier
was dismissed by order dated 20th
November 2014.
Before us
on the review panel, learned
counsel for the Applicants, Mr.
Kwesi Fynn abandoned the other
reliefs of varying or
discharging the orders of the
single Judge and confined
himself to the relief of
reversal of the orders of the
single Judge.
Learned
Counsel for the Applicants also
abandoned the second relief they
sought before this review panel,
to wit: an order staying
execution, or proceedings or
suspending the entry of judgment
in this matter, pending the
determination of the Appellant’s
appeal to this Court. By that
abandonment, this court
accordingly strikes out that
relief and it is accordingly
struck out as withdrawn.
GROUNDS
The
Applicants anchored their
application on the following
grounds:
The
Applicants deposed to a 41
paragraphed affidavit, sworn to
by Countess Roselyn Lartey, a
Senior Legal Officer of the
Applicants, in support of their
application on this review
application.
Even
though many grounds had been
urged in the said affidavit, Mr.
Kwesi Fynn, learned Counsel for
the applicants, on the reception
of arguments in this case before
the court, narrowed the
arguments to the following:
1. That, what called for
determination before the single
Judge was whether the Court of
Appeal exercised independent
views on the application made
before it culminating
in the 14th May 2014
ruling or just acted as an
appellate court on the trial
court’s ruling, which it was not
permitted to do.
This is
because in the exercise of that
jurisdiction, the Court of
Appeal, just like the single
Judge in a repeat application,
had to consider the applications
on their own independent
assessments and merits.
In this
respect, learned counsel
referred to the cases of
Ofosu Addo v Graphic
Communications [2011] 1 SCGLR
355 at 361-362 and that
of Republic v Court of
Appeal, Ex-parte Sidi [1987-88]
2 GLR 170 at 174.
We have
looked at the said cases, and
are of the opinion that, on both
the facts and the law, the said
cases are inapplicable and are
therefore irrelevant.
2. Secondly, that the
single Judge wrongly considered
and applied the
requirements of the “nugatory
effect plus more” criteria
enunciated in the
Golden Beach Hotels (GH) Ltd v
Pack Plus Int. Ltd. [2012] 1
SCGLR 452 at 459 which
would have warranted a
suspension of the entry
of the judgment in this case.”
3. At the tail end of
the submissions, learned counsel
for the Applicants, Mr.
Kwesi Fynn, stated
that in the event the court was
minded to dismiss the
application, then the
Respondents should be made to
give secured undertaking for
the payment of the 25% of the
judgment debt which was
ordered by the High
Court to be paid to them.
We do not
consider it worthwhile to
recount all the arguments made
by learned counsel in relation
to this review motion as we
consider same as a repetition of
the arguments made to the single
Judge. The single Judge in our
opinion considered in detail all
the issues that were germane
before delivering the said
ruling of 20th
November 2014.
On the
other hand, learned counsel for
the Respondents, Mr. Clarence
Tagoe on opposed the application
for reversal of the orders of
the single Judge and prayed that
the application be refused.
On our
part, we have thoroughly
considered all the processes
filed by both parties as well as
the submissions of learned
counsel before the review panel.
We have
also considered our mandate
under article 134 (b) of the
Constitution 1992 as well as the
relevant rules of procedure
including all the cases referred
to us by both counsel.
In
arriving at our decision, we
have considered the import of
the trial court’s order that
only 25% of the judgment debt
owed to the Respondents be paid
by the Applicants.
We have
looked at the judgment of the
trial Court, and whilst we have
no pretensions to prejudice the
outcome of the appeal process,
we feel that the said judgment
is valid and subsisting until it
is set aside on appeal. An order
that only 25% of that judgment
be paid, with the remaining 75%
being stayed should be looked at
in terms of the percentage grant
and not in terms of the monetary
output at the end of the day.
Fact of
the matter is that, once the
judgment figure is on the high
side, any percentage payment
will equally be on the high
side.
Considering the fact that a
victorious party is entitled to
the fruits of his judgment
unless a strong contrary
intention is shown such as the
likelihood of success,
irreparable damage or harm being
caused to the other party, then
the time honoured tradition of
allowing a victorious party
enjoy the fruits of his judgment
must be applied.
In view
of all the above factors
enumerated supra, we are
convinced that the Applicants
have not shown any good and
sound basis in law to warrant a
reversal of the decision of the
single Judge on 20th
November 2014.
We
accordingly refuse and dismiss
the instant application.
During
the submission of learned
counsel for the Applicants Mr.
Kwesi Fynn, as already stated
supra, an application was made
to the effect that the
Respondents be made to give
secured undertaking for the
payment of this 25% judgment
debt to them by Applicants. We
have considered this request,
and refuse it. This is because
we observe that during the
pendency of the suit, the 2nd
and 3rd Respondents
were made to give an undertaking
which has been recounted
elsewhere in this ruling.
It is our
decision that the said
undertaking by the 2nd
and 3rd Respondents
still holds good and it is
hereby made to subsist in
relation to the payment of the
25% judgment debt pending the
outcome of the appeal process
embarked upon by the Applicants.
Save that
the undertaking already given by
the 2nd and 3rd
Respondents during the trial of
the case in the High Court is to
subsist, the Application herein
seeking a reversal of the
decision of the single Judge
dated 20th November
2014 is hereby refused and is
accordingly dismissed.
J.
V. M. DOTSE
JUSTICE OF THE SUPREME COURT
P.
BAFFOE BONNIE
JUSTICE OF
THE SUPREME COURT
N.
S. GBADEGBE
JUSTICE OF
THE SUPREME COURT
COUNSEL
KWESI FYNN ESQ. FOR THE
PLAINTIFFS/APPELLANTS/APPLICANTS/APPLICANTS
.
CLARANCE TAGOE ESQ. WITH HIM
KOFI TWUMASI ANOKYE FOR THE
DEFENDANTS/RESPONDENTS/RESPONDENTS/RESPONDENTS,
|
