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RULING
AKAMBA, J.A.:
This is an application by the
Defendant/Appellant/Applicant
[herein after simply as
Applicant] seeking an order for
stay of execution of the
judgment of the Accra High Court
dated 23rd May 2002 Coram: Agnes
Dzordzie (Mrs.) J, pending
appeal.
The applicants’ reasons for
seeking the stay of execution
are that the Respondent would be
unable to refund the colossal
sum involved should the same be
paid to him and the appeal
eventually succeeds. Also, the
Applicant is of the view that it
is economically wise to leave
the judgment sum with them to
invest same, being a Bank, and
to pay it off should their
appeal fail. Lastly, the
appellant pointed out that his
appeal has every chance of
succeeding in which event a
refund would be unnecessary.
The Respondent vehemently
opposed the application
contending that not only is the
appeal doomed to failure but
that he is a man of substance
and can refund the total sum in
an unlikely event of the appeal
succeeding. In addition the
Respondent gave an indication of
his willingness to give a
written undertaking to refund
the sum should the Court so
desire. Finally the Respondent
stressed that he did all the
necessary legal work for which
he was retained, attaching the
property in respect of which he
organized two auction sales and
therefore properly earned his
fee.
In our view the Applicant did
not deny that the Respondent did
the work for which he was
retained as per Exh. 'C'. There
appears however to be a dispute
as to what amount is payable to
the Respondent, but that is an
issue to be properly determined
when the appeal is heard. What
is important here is whether in
the event of the appeal
succeeding, the Respondent would
be in a position to refund the
sum involved. From the affidavit
evidence and the arguments urged
before us we are satisfied that
the Respondent is in a position
to refund the money should the
appeal succeed. Accordingly we
hereby refuse the application
for stay of execution on the
condition that the Respondent
deposits with the Registrar of
this Court a written undertaking
within seven (7) days of this
order that he will refund the
full amount in the event of the
appeal succeeding.
No order as to costs.
J. B. AKAMBA
JUSTICE OF APPEAL
LARTEY, J.A.:
I agree.
AKOTO-BAMFO (MRS):
I also agree.
COUNSEL
K. ANSA-ASARE FOR HIMSELF
(RESPONDENT)
ATTA AKYEA FOR THE APPLICANT |
