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RULING
AKAMBA,
JSC:
The application before me is
for a ‘stay of execution and
proceedings or suspension of the
entry of judgment pending
appeal’ and is a repeat
application of a similar one
dealt by the Court of Appeal on
14th May 2014.
This application was made by
motion and supported by a
fifty-nine (59) paragraph
affidavit as well as forty-seven
(47) exhibits. As if that was
not enough, the applicant filed
his legal arguments in support
of the motion. The respondents
filed their joint seventy-seven
(77) paragraph affidavit to
which they attached five
exhibits in opposition to the
motion. Counsel for the
respondents sought to rely on a
preliminary objection, citing
reference thereto, in the
closing paragraphs in their
affidavit in opposition.
The rules of this court do not
require the filing of legal
arguments in an application of
this nature for stay of
execution. All that is required
is the motion application
supported by an affidavit
deposing to the facts sought to
be relied upon. On the part of
the counsel for the respondents
it is worth noting that rule 17
of CI 16 regulates the issue of
a respondent intending to raise
a preliminary objection to the
hearing of an appeal as distinct
from the hearing of a motion.
This application being a motion
and not the hearing of an appeal
is not covered by the rule. At
the hearing of a motion, it is
sufficient for the proponent to
raise the objection when the
motion is about to be moved. In
the case of Osei Bonsu II v
Mensah and Ors (2003-2005) 1 GLR
141, CA, I had occasion to
deal with rule 16 of CI 19, the
Court of Appeal Rules, which is
in pari materia with rule 17 of
CI 16, the Supreme Court Rules,
which reasoning I adopt in this
instance. Rule 16 of CI 19
enacts as follows:
“16. Notice of Preliminary
Objection.
(1)
A
respondent who intends to rely
upon a preliminary objection to
the hearing of the appeal shall
give the appellant three clear
days notice before the hearing
of the preliminary objection,
setting out the grounds of
objection, and shall file the
notice specified in Form 8 in
Part 1 of the schedule together
with five copies of the appeal
with the Registrar within the
same time.
(2)
If the
respondent fails to comply with
this rule, the court may refuse
to entertain the objection or
may adjourn the hearing at the
cost of the respondent or may
make such other order as it
thinks fit”
Rule 17 of CI 16 on the other
provides as follows:
“17 (1) Where a respondent has
not indicated in his statement
that he intends to rely upon a
preliminary objection at the
hearing of a civil appeal he
shall, before raising such
objection at the hearing, give
fourteen clear days notice to
the appellant in the Form 9 set
out in Part 1 of the Schedule to
these Rules, setting out in full
the grounds of objection and the
arguments in support of his
objection.
(2)
The
appellant shall, within seven
days of the service of the
notice on him, file any reply he
may have to the grounds of
objection and the arguments in
support of the reply.
(3)
Where
a respondent or an appellant
fails to comply with this rule
the court may refuse to
entertain the objection or the
reply or may adjourn the hearing
and may make any other order as
it considers fit.”
As stated in the Osei Bonsu case
supra ‘a preliminary objection
is in the nature of a legal
objection on stated legal,
procedural or technical grounds
and not based on the merits of
facts of the case. The objection
in most cases had to be argued
with reference to only decided
cases or rules of procedure.
Moreover, the default or issue
raised had to be apparent on the
face of the motion.”
The contention of counsel for
the respondents is that the
decision of the Court of Appeal
was not executable hence this
court could not entertain the
present application. Against the
back drop of the above, I
decided to hear the motion and
to determine all issue in my
ruling which I here do.
GENESIS
The genesis of this application
is as follows. The
plaintiff/applicant (hereinafter
simply applicant) is a reputable
Commercial Bank in Ghana. The 1st
defendant/respondent
(hereinafter simply 1st
respondent) is a limited
liability company in Ghana
carrying out the business of oil
trading, supply of petroleum
products and bunkering. The 2nd
and 3rd
defendants/respondents
(hereinafter simply 2nd
and 3rd respondents)
are directors of the 1st
respondent. The 1st
respondent is the beneficiary of
business overdraft/credit
facilities from the applicant
for the conduct of the former’s
oil business. Repayment of the
overdraft/credit facilities is
jointly and severally guaranteed
by the 2nd and 3rd
respondents. The applicant filed
a claim against the respondents
jointly and severally for a sum
outstanding under the overdraft
facility extended to the 1st
respondent as at 1st
October 2011. Included in the
claim was a demand for interest
as well as penal interest of 10%
on the sum claimed. The
respondents denied the claims
and counterclaimed against the
applicants for several reliefs
endorsed in their paragraphs 1
(a) to (g) which include
declaratory reliefs and other
judicial reliefs as well as
recovery of various sums of
money endorsed therein. The
trial High Court (Commercial
Division) Accra dismissed the
Applicant’s claims against the
Respondents wholly and granted
in part the latter’s
counterclaim.
HIGH COURT RULING ON STAY OF
EXECUTION
The applicant, who was
dissatisfied with the decision
of the trial High Court which
was given on 14th
November 2013, filed a notice of
appeal on 8th April
2014 against the decision. The
applicant subsequently filed a
motion before the same trial
court for a stay of execution of
its decision. The court on 5th
February 2014 ruled as follows:
“Going through the cases, the
guiding principle in an
application of this nature can
be summarized as follows:
(i)
Where
the judgment is sought to be
stayed pending appeal the main
consideration should not be such
that the victorious party is
being deprived of his victory as
what position of a defeated
party would be who had to pay up
or surrender some legal right
only for him to be successful on
appeal.
(ii)
If the
position is that the victorious
party is unlikely to be able to
refund any money paid under the
judgment or the defeated party
may not be able to be restored
to the status quo ante in the
event of a successful appeal,
then when the application for
stay of execution is refused, it
would be prudent to order the
judgment creditor to provide the
requisite guarantee to refund
the judgment debt.
In order to achieve a balance in
the competing rights of the
plaintiff/applicant on the one
hand and the
defendants/respondents on the
other I have taken into
consideration the nature of the
primary businesses of the
plaintiff/applicants and the 1st
defendant/respondent both of
whom deserve all the necessary
liquidity they can pull together
for their businesses. I shall in
the circumstances grant a stay
of execution of the judgment
appealed from in part and
conditionally as follows:
(1)
The
plaintiff/applicant shall pay to
the 1st
defendant/respondent the sum of
equivalent to 25% of the entire
judgment debt as set out in the
Entry of Judgment AfterTrial
filed by the
defendants/respondents.
(2)
The 2nd
and 3rd
defendants/respondents shall
file an undertaking in the same
terms as they provided to the
plaintiff/respondent during the
transaction which gave rise to
the action to (sic) that they
shall refund fully any monies
the plaintiff/applicant shall
pay to the 1st
defendant/respondent in partial
satisfaction of the judgment
debt in this suit should the
appeal from the said judgment be
successful.
(3)
For
the avoidance of doubt the sum
equivalent to 25% of the
judgment debt ordered to be paid
shall be exclusive of the costs
awarded to the
defendants/respondents by the
court.
COURT OF APPEAL RULING ON STAY
OF EXECUTION
The Applicant filed a fresh
application under rule 28 of CI
19 before the Court of Appeal
for a stay of execution pending
appeal. The Court of Appeal in
its ruling of 14th
May 2014 refused the application
in the following terms:
“Having heard counsel for the
parties and upon examining the
processes so far filed by the
parties in this question, it
appears that the 1st
respondent is a reputable
company and we consider that she
can refund the said 25% of the
judgment debt in the event of
the appeal succeeding. To allay
the fears of the Applicant that
the respondents may suffer a set
back in business due to
contingencies of life, and thus
be unable to refund any sum of
money recoverable if the appeal
is successful, the trial court
ordered two Directors of the 1st
Respondent company (2nd
& 3rd Respondents
herein) to file undertaking with
that court, to pay back any such
sum in such as (sic) event. We
think that to preserve the
substance of the decision in the
court below until the appellate
view of the matter is
pronounced, the order by the
trial court for two Director of
the 1st Respondent
company provide security in the
form of undertaking as stated
above is fair, just and
reasonable in the circumstances.
See The Republic vs Court of
Appeal, Accra, Ex Parte Sidi
(1987-88) 2 GLR 170-per
Francois, JSC. In the result
we shall refuse the application.
The application is accordingly
refused. No order as to cost.”
The Applicant filed a notice of
appeal on 21st July
2014 against the ruling of the
Court of Appeal dated 14th
May 2014. This was followed with
a motion for stay of execution
and proceedings pending appeal
under rule 20 of CI 16 which
application the Court of Appeal
did not hesitate in dismissing,
considering it to be an abuse of
process.
APPLICATION BEFORE SUPREME COURT
By their present repeat motion
filed on 11th August
2014, the Applicant is praying
for a stay of execution and
proceedings or suspension of the
entry of judgment pending appeal
under rule 20 of CI 16. Rule 20
of CI 16 is couched as follows:
“16. (1) A civil appeal shall
not operate as a stay of
execution or of proceedings
under the judgment or decision
appealed against except in so
far as the Court or the Court
below may otherwise order.
(2)
Subject to these Rules, and to
any other enactment governing
appeals, an application for stay
of execution or of proceedings
shall first be made to the court
below and if that court
refuses to grant the application,
the applicant may repeat the
application before the Court for
determination.” (Underlined for
emphasis).
Undoubtedly an application such
as the present one can only be
repeated in this court if a
similar such application has
been made to the court below and
same refused. The fact that the
applicant has deemed it
necessary to repeat his
application in this court is an
indication that it considers the
outcome of the earlier
application at the 1st
appellate court a refusal. That
position is made possible when a
grant by the court below is
considered onerous and thus
amounting to a refusal. The
classic pronouncement of this
position has been rendered in
numerous decisions of this
court. Noteworthy of these
decisions are Republic v
Court of Appeal, Accra; Ex Parte
Sidi (1987-88) 2 GLR 170, SC;
Republic v Court of Appeal,
Accra; Ex Parte Ghana Cable Ltd
(Barclays Bank Ghana Ltd
Interested Party (2005-2006)
SCGLR 107.
In the ex parte Ghana Cable
Ltd case (above), this court
delivered itself on the issue
thus:
“The age-old principle was that
an application for stay of
execution pending the hearing
and determination of an appeal
could be granted on terms. The
grant could be hedged about with
such difficult or onerous or
stringent or burdensome or
unreasonable conditions that for
all practical purposes, it would
be sheer sophistry or an ‘abuse
of language’ to say that the
application had been granted. In
other words, where an alleged
grant had attached to it
conditions which effectively
stultified the reasonable
expectations (not fanciful ones)
of an applicant, the so called
grant could be regarded as
refusal. However, in determining
whether a grant on terms should
be regarded as refusal, the
personal circumstances of the
applicant should not be a
crucial factor.”
ANALYSIS
The applicant urges the point
that when the Court of Appeal
stated in dismissal of their
application for stay of
execution that it merely
confirmed the earlier grant of
the stay on terms by the High
Court, the same was incorrect
because the Court of Appeal was
not sitting on appeal over the
matter. It is true to say that
when the Court of Appeal sits in
exercise of the repeat powers,
the court does not do so in
exercise of its appellate
jurisdiction as on appeal.
However what is important is to
determine the parameters within
which the court exercises its
powers under the repeat
application mandate. It is
simply to ascertain whether the
court below had refused to grant
the application for the stay. If
the court below refused to grant
it, then only would it be ripe
to hear and determine the
application. Within the context
of a refusal however, as
illustrated by the decisions of
this court cited above, includes
a grant of stay of execution on
terms considered to be so
onerous as to amount to a
refusal. It is in this same
context that the outcomes of
both the High Court and the
Court of Appeal have to be
juxtaposed as to whether their
ratios are any different as
advocated by the applicant. The
rulings of the trial High Court
and the Court of Appeal
(respectively) have been set out
above. The same conditions
itemized under (1), (2) and (3)
by the High Court have merely
been summarized in the ruling of
the Court of Appeal. The terms
given by the High Court that the
applicant considered onerous and
therefore a refusal are the same
that the Court of Appeal duly
determined under the repeat
application jurisdiction and
came to the conclusion that the
conditions imposed were not
onerous and therefore refused or
dismissed the application. I am
of the view, after considering
all the material before me and
hearing arguments of both
counsel that the conclusion
arrived by the Court of Appeal
was a tacit refusal and a
dismissal of the application
before it. Being a dismissal
thereof, that decision is not
executable and thus not amenable
for a grant of a stay of
execution. This being my
understanding the present
application falls foul of our
rules. It lacks any merit and is
dismissed.
There is a second segment of the
application which seeks a
suspension of the entry of
judgment pending appeal.
In my ruling on 30th
April 2014 in Civil Motion No
J8/51/2014 in Lawrence Boakye v
Yaw Boakye (unreported) I
quoted reliance on this court’s
decision per Date-Bah, JSC in
Golden Beach Hotels (Gh) Ltd v
Pack Plus Int. Ltd (2012) 1
SCGLR 452 at 459, in similar
circumstances such as the
present application, as I hereby
do, as follows:
“According to the argument we
earlier advanced in this ruling,
the criterion for suspending an
order of a lower court should
not be identical with the
criterion summarized by Akufo
Addo JSC in the Jebeille case in
relation to applications for
stay of execution, but should
embody an additional element or
requirement. The precise nature
of this additional element or
requirement we would leave to
subsequent cases to develop.
However, subject to fine-tuning
in the light of the facts of
subsequent cases, we would
propose that a possible test
could be the nugatory effect
referred to in the Jebeille case
(supra) combined with the need
for exceptional circumstances.
If this test of a ‘nugatory
effect plus more’ is not
insisted upon, there would be no
point in maintaining the
distinction between the two
kinds of orders, namely stay of
execution and suspension of
orders of lower courts”
In the instant application and
going by the test enunciated
above, I find nothing that meets
the requirement of the test of a
‘nugatory effect plus more’
advanced in support of the
applicant’s motion to warrant an
interference with the status
quo. I will in these
circumstances dismiss the
alternative relief sought which
I hereby do, as the same has not
been made out.
I allow costs of two thousand
Ghana Cedis (GH¢2000)
for the Respondents. Costs to be
taxed.
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
MR. KWESI FYNN ESQ. FOR THE
APPLICANT.
MR. CLARENCE TAGOE ESQ WITH HIM
MR. KOFI TWUMASI ANOKYE
FOR THE RESPONDENTS. |
