AMADOU SALAM SALAMI vs. APOLLO STEEL GHANA LIMITED
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL (CIVIL DIVISION)
    ACCRA - A.D 2016
AMADOU SALAM SALAMI - (Plaintiff/Respobdent/Respondent)
APOLLO STEEL GHANA LIMITED - (Defendant/Respondent/Appellant/Applicant)

DATE:  22ND MARCH 2016
SUIT NO:  H3/599/2015
JUDGES:  AGYEMANG (MRS.) JA – SINGLE JUDGE
LAWYERS:  JOSEPH DZAKPASU FOR RESPONDENT
ASARE DANQUAH FOR APPLICANT
RULING

 

AGYEMANG JA:-

This is a ruling in respect of an application for a stay of execution of the judgment of the High Court Accra delivered on the 18th of January 2015.

 

The application is supported by a nineteen-paragraph affidavit sworn to by one Ravi Tiwariwho described himself as a Director of defendant appellant/applicant (referred to hereafter as the applicant) with the requisite consent of the applicant to depose to matters on its behalf. According to the said deponent, the applicant was dissatisfied with the judgment of the court below which was entered against it in breach of the rules of natural justice when the learned trial judge allegedly failed to give the applicant the opportunity to cross-examine the plaintiff on his evidence or for the applicant to open its defence. It was deposed that the applicant failed to attend court when the case was called for hearing of the 27th of January 2015 and that when the court adjourned for judgment an application by the applicant to arrest the court’s judgment and for the applicant to be heard was not heard.

 

The applicant who claimed that it had a good defence to the suit alleges that he has been prevented form defending the suit and prosecuting his counterclaim by the learned trial judge who shut the door in its face. By reason of the alleged breach of natural justice due to the want of fair hearing, the deponent alleged that the appeal had a good chance of success.

 

According to the deponent, in the likely event of a successful appeal, same would be rendered nugatory as the plaintiff/respondent/respondent (respondent) who was resident outside the jurisdiction: in Lome, Togo, might not be in a position to refund the judgment debt paid to him. On the other hand, the applicant described as a solid business entity would be able to pay the judgment debt in the event of an unsuccessful appeal.

 

Arguing the motion, learned counsel for the applicant who repeated the said matters deposed to cited Dzokoto&Amissah v. BBC Industrials Company Ltd and City Express Bus Ltd 2011 2 SCGLR 825Holding 1 to argue that the balance of hardship lay with the applicant rather than on the respondent who having lost his job in Ghana had gone to live in Togo and might not be able to refund the judgemnt debt once it was paid to him.

 

In a twenty-three paragraph affidavit in opposition as well as a nine-paragraph supplementary affidavit, one George OwusuAnsah who described himself as a lawyer in the firm of lawyers representing the respondent deposed that the appeal had little chance of success as the applicant was given ample opportunity to defend the suit and prosecute its counterclaim but failed to do so.

 

Making reference to affidavits of service (exhibited by the respondent) duly served on counsel for the applicant on two occasions he deposed that on both occasions 7th January 2015 and 15th January 2015, neither the applicant nor counsel showed up in court. Then when the trial judge adjourned the matter for judgment to the 18th of January 2015, the applicant filed a motion to arrest the judgment on the 17th of February 2015 which motion was set for hearing on the 25th of February 2015. This is what the learned trial judge refused to do and so went ahead to enter judgment for the respondent.

 

It was further deposed that the respondent who had suffered a great deal by reason of his unfair termination by the applicant had already gone into execution and had successfully received the sum of USD10,000 from the Standard Chartered Bank (Garnishee) through garnishee proceedings and that it was too late in the day for execution to be reversed.

 

Lastly it was deposed on behalf of the respondent that although he was resident in Lome Togo, he was a citizen of Ghana with family ties in Ghana and a family house at Hohoe.

 

Arguing in opposition to the application learned counsel for the respondent also repeated the matters contained in the opposing affidavits, more particular regarding the absence of the applicant and counsel on the days appointed for court appearances in spite of due service. Citing Accra Hearts of Oak v Ghana Football Association [1982-83] GLR 117, and Ankumah v City Investments Ltd [2007-2008] SCGLR 1076 per Adinyira JSC, he contended that it did not lie in the mouth of the applicant who had been indolent to complain of the court’s attitude to it. Lastly, counsel contended that the attitude of the applicant was what had brought about the judgment complained of and that even after judgment when it sought a stay of execution, it did not approach that application with seriousness. To buttress this, he referred to two post-judgment rulings exhibited by the respondent in the supplementary affidavit in opposition. In the first of these, dated 11th of August 2015, the applicant who was seeking a stay of execution of the judgment of the court once again absented himself from court. The second rulingdated 28th of August refused the application on its merits.

 

On the 15th of March 2016, having read the affidavits in support of and against the application and having heard the arguments proffered in that behalf, I dismissed the application and reserved my reasons for so doing. I give them now:

 

The factors that should exercise the court in the consideration of the grant of an application for a stay of execution have long crystallised into settled law.It is a balance between safeguarding the interests of the judgment creditor who must not lightly be deprived of the fruits of his victory, and that of the applicant whose appeal must not be rendered nugatory. In the latter circumstance, whether or not an exceptional circumstance that should move the hand of the court to exercise its discretion in the applicant’s favour has been demonstrated,must be considered. Somust consideration be given to the case of the applicant where there exists an arguable point of law which would speak to the likelihood of the appeal’s success, as well as the balance of hardship on the parties should the application be granted or refused, see: Dzokoto&Amissah v. BBC Industrials Company Ltd and City Express Bus Ltd (supra); also NDK Financial Services Ltd v Yiadom Construction and Electrical Works Ltd [2007-2008] SCGLR 93. In the instant matter, although counsel for the applicant laboured to show that the appeal had a good chance of success, contending that there had been a breach of natural justice, his arguments were less than convincing in the face of the matters contained in the opposing affidavit regarding the fact that the applicant was served with not one but two hearing notices and failed to show up in court to be heard. Furthermore, the conduct of the applicant in attempting to arrest the judgment by a motion that was to be heard a week after the scheduled date of judgment, and even the post-judgment conduct of failing to show up to argue its own application for a stay of execution,places in question whether or not it was given a fair hearing by the court. The issue of whether the conduct of the applicant may have been responsible for the door being shut in its face rather than a high-handed treatment by the court below is raised thereby. Furthermore, in face of the deposition of counsel on behalf of the respondent that the respondent although ordinarily resident in Togo had ties in Ghana with an address in Hohoe, the fear expressed by the applicant that monies paid to the respondent may not be recovered may have been given a rest.

 

It seems to me that in the present circumstance where execution has already taken place, the applicant ought to have demonstrated an exceptional circumstance for execution to be stayed which would really at this stage be a reversal thereof. No such exceptional circumstance has been canvassed.

 

As aforesaid, the court’s duty in an application of this nature is to balance the competing interests of ensuring that the successful party is not lightly deprived of the fruits of his victory while also ensuring that a successful appeal would not be an empty one.

 

I am not persuaded that a case has been made for the court to exercise its discretion in the applicant’s favour, for which reason I have little inclination to deprive the respondent herein, of his hard won victory especially where execution has commenced.

 

Thus have I dismiss the application. I go ahead to award costs of GHC500 to the respondent.

 

SGD

M. M. AGYEMANG

(JUSTICE OF THE APPEAL)