Execution - Stay pending appeal - Refusal of, - Trial court granting stay upon onerous conditions - Whether amounting to refusal.

Execution - Stay pending appeal - Principles for grant - Trial court entering summary judgment notwithstanding triable issues on record - Appeal not frivolous - Stay granted in circumstances.

In the plaintiff’s application for summary judgment against the defendant the issue that emerged was whether at a settlement out of court, outstanding debts owed by the defendant to the plaintiff were negotiated and settled. It was agreed between the parties that there were two meetings for settlement. The plaintiff claimed that at the second meeting the defendant offered a factory shed in full settlement of the outstanding indebtedness but the offer was rejected as insufficient. On the other hand, the defendant claimed that the offer of the factory shed was accepted by the plaintiff in full settlement of the debt. The trial court entered judgment for the plaintiff. Pending the appeal the trial court granted the defendant’s application for stay of execution subject to the condition that the defendant paid into court half the judgment debt totalling $125,000 and ¢10,000,000 and costs of ¢500,000 within one month from the date of the order. On a repeat application by the defendants in the Court of Appeal the defendant contended that the trial judge erred in granting the plaintiff’s application for summary judgment notwithstanding that there were triable issues on record. The plaintiff, on the other hand, resisted the application contending that the defendant having been granted a stay of execution in the High Court, it was not open to it to bring a fresh application to the appeal court as the High Court did not refuse the application.

Held - (1) The conflicting claims raised a triable issue that could only have been resolved by evidence. In the circumstances the appeal could not be said to be frivolous and the application for stay of execution would be granted. Duncan v Kawoaco Ltd [1981] GLR 476 cited.

(2) The argument that, having been granted a stay in the High Court, it was not open to the defendant to bring a fresh application to the Court of Appeal was of no merit. The conditions were so onerous as to amount virtually to a refusal. Republic v Court of Appeal, Accra, ex parte Sidi [1987-88] 2 GLR 170 applied.

Cases referred to:

Duncan v Kawoaco Ltd [1981] GLR 476.

Republic v Court of Appeal, Accra, ex parte Sidi [1987-88] 2 GLR 170, SC.

APPLICATION to the Court of Appeal for stay of execution of judgment of the High Court following a conditional grant in the High Court.

Amarkai Amarteifio for the applicant.

S K Matanawui for the respondent.

FORSTER JA. The defendant company applied to the High Court, Tema for stay of execution of that court’s summary judgment of 2/7/92 wherein judgment was entered for the plaintiff company as claimed by the writ of summons for (a) $250,000 (b) ¢20,000,000 (c) 32% interest p.a. on (a) and (b). Costs of ¢500,000 was awarded in favour of plaintiff. The defendant appealed. The High Court on 28/7/92 granted defendant’s application for stay of execution pending the determination of appeal and subject to conditions. The defendant was to pay into court half the judgment debt and costs within one month from the date of the order. Thus, the defendant was required to pay into court the sum of $125,000 and ¢10,000,000 plus costs of ¢500,000.

Dissatisfied with the conditions set by the High Court, defendant repeated the application for stay of execution before this court. Arguing the application, counsel for the defendant first contended, by reference to supporting affidavits and the grounds of appeal, that the defendant’s statement of defence raised triable issues and therefore the entry of summary judgment in this case was wrong. The plaintiff on the other hand submitted that the defence raised no triable issues and that the entry of the summary judgment was in order.

We have read the judgment of the court and the statement of defence and we are of the view that there were triable issues which required to be resolved at a trial. The matter was fought on affidavits. The issue disputed between the parties was whether at a settlement out-of-court, outstanding debts owed by the defendant to the plaintiff, were negotiated and settled. It was common cause between the parties that there were two meetings during the negotiations for settlement. As the trial judge found there was a second meeting on 4/9/91. The plaintiff claimed that at that meeting the defendant offered a factory shed in full settlement of the outstanding indebtedness. Plaintiff contended in a supporting affidavit that that offer was rejected as insufficient. On the other hand, the defendant’s defence and the affidavit filed in opposition to the plaintiff’s application for summary judgment claimed that the offer of the factory shed was accepted by the plaintiff in full settlement of the debt. Thus, there were two conflicting claims; the plaintiff claiming that the shed was not accepted in settlement of the debt; the defendant on the other hand maintaining that the offer was accepted by the plaintiff. In the circumstances the conflicting claims raised a triable issue. For if, to quote Taylor J (as he then was) in Duncan v Kawoaco Ltd [1981] GLR 476 at 481:

“When all the circumstances are looked at, what emerges is that the defendant has put forward a defence, which if it can be proved, the action against him must fail. It may be that he will not be able to prove it at the trial, that is not the question. The question is the outcome of the action on the assumption that he is able to prove what he alleges.”

We therefore think there were triable issues raised by the defence and which could only have been resolved by evidence. We are satisfied that the appeal of the defendant cannot be said to be frivolous.

The plaintiff resisted the instant application contending that the defendant having been granted a stay of execution by the High Court it was not open to it to bring a fresh application to this court, for the High Court did not refuse the application. That argument is now of no merit. In similar circumstances in the Republic v Court of Appeal, Accra; ex parte Sidi [1987-88] 2 GLR 170, the Supreme Court held that such onerous and stringent conditions were just as good as an outright refusal. As was bluntly put by Taylor, JSC:

“... clearly if within three months, the applicant was unable to obtain the colossal sum of ¢1,000,000 to be paid into court, then the order for stay would lapse and the judgment-creditor would be entitled to go into execution. How in such a situation it can justly be said that a stay of execution was granted is in my respectful view difficult to appreciate.”

In the instant case, half the judgment debt being $125,000 and ¢10,000,000 and ¢500,000 costs was ordered to be paid within one month. In default thereof the judgment-creditor was entitled to go into execution. We think that the conditions were so onerous as to amount virtually to a dismissal.

In all the circumstances of the case, it is our respectful view that the application for stay of execution of the judgment of the High Court, Tema must succeed.

 (sgd) AMPIAH JA.

 (sgd) ESSIEM JA.

Application granted.

Kizito Beyuo, Legal Practitioner.