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RULING
ADINYIRA, JA:
The applicant in this
case is seeking an order for a stay of execution of an
order for a writ of sequestration pending appeal. This
order of a writ of sequestration was made ex parte on
14th October 2002 in respect of a judgment of 24th June
2002 entered by the Court of Appeal against the
defendant/applicant.
"in terms of relief 1
of the writ of summons that is to say that by reason of
the submission to judgment made by the defendant bank
before the trial judge on 22nd February 1999, it is
hereby declared that the plaintiffs are entitled to be
paid their pension rights in accordance with the
defendant's Board Of Directors amendment decision of 27
February 1987".
This judgment of 24
June 2002 was made by the Court of Appeal upon the
orders of the Supreme Court to enable it to dispose of
an appeal pending before it against the High Court
ruling of 20 December 2000 on the interpretation of the
terms 'current basic salary' and 'automatic adjustment
of pension whenever salaries changed', which had
appeared in the decisions of the Board Of Directors of
Defendant Bank referred to in the judgment after trial.
The Court of Appeal gave judgment on 11th July 2002.
It is the contention of
Counsel for the applicant that in the said Court of
Appeal judgment it was held that the parties herein
should negotiate the percentage to be used to determine
the pension based on the consolidated salary. But before
this condition precedent could be fulfilled the
respondent applied for an order for a writ of
sequestration. They applied to the High Court to set it
aside on the ground that it was premature, but it was
refused on 19th November 2002. The applicants filed an
appeal against this ruling on 21st November 2002. They
then applied for a stay of execution of the writ of
sequestration but it was refused on 2nd December 2002,
and hence this present application before us. The sum of
the submissions by counsel for the respondent was that
the order relied upon by the applicant amounts to a
revision of the judgment that they have submitted to.
The pronouncement of the Court of appeal being relied
upon is a mere obiter and a directive, which is not
binding.
We have considered
these arguments and the affidavits before us and it is
clear to us that in the judgment of 11th July 2002 the
Court of Appeal was considering 2 original grounds of
appeal and an additional ground of appeal filed before
it. Ground 2 of the grounds appeal is the one relevant
to the application before us. This states:—
"The learned High Court
Judge erred when he sought to impose on the defendant
50% of the consolidated salary as pension to the
plaintiff in the face of evidence that there has been an
internal mechanism and procedure used by the parties
herein for reviewing pension entitlements."
In the judgment the
court allowed the appeal on this ground and ordered that
the parties negotiate on the percentage to be used.
Therefore counsel for the respondents argument that the
said order was obiter cannot be accurate, having regard
to the fact that it was a ground of appeal canvassed
before it and considered by the Court of Appeal. It is
obvious from the face of the record that an express
order was made by the Court. Since this order has not
been complied with, the learned judge erred in granting
the order for the writ of sequestration. Consequently
since there are serious issues to be determined on
appeal, we would exercise our discretion in favour of
the applicant.
The application for a
stay of execution of the order for the writ of
sequestration is accordingly granted. No order as to
cost.
(SGD)
S.O. ADINYIRA (MRS.)
JUSTICE OF APPEAL
(SGD)
V. AKOTO-BAMFO (MRS.)
JUSTICE OF APPEAL.
(SGD)
K. TWENEBOAH-KODUA
JUSTICE OF APPEAL.
COUNSEL
DR. W. C. EKOW DANIELS
WITH ANDREW DANIELS FOR RESPONDENTS
ANTHONY NOVOR FOR
APPLICANTS
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