ACCRA - A.D 2016
FORESTRY COMMISSION - (Defendant/Appellant/Applicant)
RICASBED GHANA LIMITED - (Plaintiff/Respondent/Respondent)

DATE:  23RD NOV., 2016
SUIT NO:  H3/22/2017


This is an application where the Defendant/Appellant/Applicant herein is seeking an order of the court to compel the Plaintiff/Respondent/Respondent to pay into court the sum of GH¢873,560.17 it fraudulently withdrew from the Registry of the court during the vacation period without the express permission of the court which had ordered the Defendant/Appellant/Applicant to pay the amount into court for same to be put in an interest yielding account pending the final determination of the appeal.


Prior to moving the application, counsel for the Plaintiff/Respondent/Respondent raised an objection to the moving of the application.


His sole ground was that this court lacked jurisdiction to hear this matter as the matter before the court emanated from an order of the High Court which order had not been set aside by the High Court, Court of Appeal or quashed by the Supreme Court. Counsel opined that the court’s jurisdiction could only be invoked if there was an appeal pending against that ruling.


Counsel for the Defendant/Appellant/Applicant opposed the objection and referred the court to the order made by the Court of Appeal which ordered the Defendant/Appellant/Applicant to pay the sum into court and for it to be invested pending the determination of the appeal. (see Justice Gyan


JA’s order made on 2nd December, 2015).Thus they were properly before this court.


The preliminary legal objection was dismissed for the reason that the subject matter or the order that was made by this court on 2nd December, 2015 was in respect of the subject matter in dispute (namely the sum of GH¢873,560.17 ) which order had not been vacated or appealed against. Thus the court had jurisdiction.


The genesis of the matter is that the Plaintiff/Respondent/Respondent obtained judgment against the Defendant/Appellant/Applicant on 15th April, 2013 in the sum of $289.042.25 as damages for unlawful interference in the Plaintiff’s business.


That on 24th July, 2014, the Defendant/Appellant/Applicant obtained an order of the court to pay the judgment debt by five (5) equal installments and consequently, between August – December, 2014 Defendant/Appellant/Applicant fully paid the entire judgment debt of USD289.024.25 in the cedi equivalent which amounted to GH¢919,770.04 to Plaintiff/Respondent/Respondent.


The Plaintiff/Respondent/Respondent later obtained leave of the High Court and amended its entry of judgment to include post judgment interest. In addition, the High Court upheld the Plaintiff/Respondent/Respondent application in December 22, 2014 that the Defendant/Appellant/Applicant ought to have paid the judgment debt using commercial rate instead of the prevailing Bank of Ghana Exchange rate which the Defendant/Appellant/Applicant had used to calculate the amount. When the Defendant/Appellant/Applicant was served with the Plaintiff/Respondent/Respondent’s amended entry of judgment in the sum of GH¢873,560.17 in May 2015, as constituting the post judgment interest and difference between the Bank of Ghana rate and the commercial rate and which amount was solely computed by the Plaintiff/Respondent/Respondent.


The Defendant/Appellant/Applicant vehemently disputed the said amount so the High Court nominated the Director of Finance of the Judicial Service to compute the post judgment interest and the variation of the Exchange rate and report the outcome to the court.


Whilst awaiting the report from the Director of Finance on the issue, Civil Form 6 was served on the parties, this prompted the Defendant/Appellant/Applicant to apply for stay of execution of the sum as stated in the Plaintiff/Respondent/Respondent’s amended Entry of Judgment which is GH¢873,560.17.


On 2nd December, 2015, the Court of Appeal granted the stay of execution and directed the Defendant/Appellant/Applicant to pay the amount into court to be invested in an interest yielding account pending the final determination of the appeal (see Exhibit ‘FC’).


On 22nd July, 2016, the Defendant/Appellant/Applicant paid the entire amount into court after obtaining leave from the Court of Appeal.


The Defendant/Appellant/Applicant was informed that in July, 2016, the Plaintiff/Respondent/Respondent came by Ex-parte application to this court to take away the money, but the Plaintiff/Respondent/Respondent’s application was refused.


The Defendant/Appellant/Applicant wrote to the Registry of the Court and copied the Director of Finance not to release the money to Plaintiff/Respondent/Respondent pending the final determination of the appeal – (Exhibit ‘FC1’) dated 15th July, 2016.


However, the Plaintiff/Respondent/Respondent managed to take out the entire GH¢873,560.17 from the Registry of this court whilst the appeal is pending contrary to the explicit order of this court.


In the time being, the Director of Finance has served the parties with his report which shows that the total amount due the Plaintiff/Respondent/Respondent as post judgment interest and the variation of exchange rate is USD69,114.52 (Exhibit ‘FC3’) which amount is far less than the GH¢873,560.17.


In the Supplementary Affidavit in Support, the Applicant deposed to the facts that Plaintiff/Respondent/Respondent fraudulent behaviour can be seen in the Ex-parte application it moved before the High Court particularly because it failed to bring to the Notice of the Judge the Rulings of both H/L Justice Saeed Gyan JA (Exhibit ‘FC’) and H/L Justice Cecilia Sowah (Mrs.)JA (Exhibit ‘RAB 1’) because these Exhibits have stated succinctly that the amount is to be invested in an interest yielding account pending the final determination of the appeal.


Counsel who incidentally deposed to the fact stated in the affidavits in support and supplementary affidavit did so in his capacity as the Manager in charge of legal affairs of the Forestry Commission, the Defendant/Appellant/Applicant herein; stated that Lawyer Opoku Adjei, who until recently was Plaintiff/Respondent’s Counsel refused Plaintiff/Respondent’s instructions to put in an application for the release of the money on the grounds that same would be improper and unlawful, thus compelling the Managing Director of the Plaintiff/Respondent Company to take the case docket from him, and has since been represented by Kwasi Adu-Mante Esq. who moved the application for release of the GH¢873.560.17.


Further, that, the Plaintiff/Respondent managed to obtain the GH¢873.560.17 from the Registry of this Court without the knowledge of the Registrar who only became aware after he had sighted an official search filed at the Registry by Defendant/Applicant.


Counsel further submitted that Plaintiff/Respondent’s assertion that it is not aware of any pending appeal regarding the subject matter is very disingenuous on its part, to opine the least. A glance at Plaintiff/Respondent’s Exhibit ‘RAB 3’ shows that Plaintiff/Respondent is being untruthful. Moreover, Plaintiff/Respondent has appeared on two occasions before this Court in respect of the substantive appeal dated 18th November, 2015 and 11th February, 2016 as the attached official search discloses. (see Exhibit ‘FC’).


In opposing the application, the Managing Director of the Plaintiff/Respondent/Respondent deposed to the facts that the application was incompetent, misconceived and brought in bad faith.


The Plaintiff/Respondent/Respondent denied that he had been served with any report from the Director of Finance of the Judicial Service, neither has the court made any order adopting the said report of the Director of Finance.


That the Defendant/Appellant/Applicant failed to abide by the terms of the court’s order staying the execution and applied for extension of time to comply with the terms of the order, which was granted by the court.


The Plaintiff/Respondent/Respondent deposed to the fact that when the Defendant/Appellant/Applicant’s application for further extension of time to abide by the order was refused on 28th day of June, 2016 (Exhibit ‘RAB’), he was then entitled to go into execution. He then applied to the court to release the money paid into court by the Defendant/Appellant/Applicant after obtaining a notice of payment into court of the sum, the subject matter in dispute.


That the Court ordered as per Exhibit ‘RAB1’ the Plaintiff/Respondent/Respondent to make the application at the trial Court instead of this Court; and thus the Plaintiff/Respondent/Respondent made the application to the trial court and same was granted as per Exhibit ‘RAB2’.


After obtaining the order for the release of monies paid into court by Defendant/Appellant/Applicant, they served same on the Director of the Finance of Judicial Service.


Further, the court granted an application for rectification, that being the case there was no appeal pending since the records had been remitted to the court below for rectification. Counsel therefore prayed that the application should be dismissed.


I have read all the processes and listened to the arguments by both counsel and it is my considered opinion that in the light of the Orders of the Court of Appeal on the fact that the sum of GH¢873.560.17, was to be invested until the appeal was determined, it was palpably wrong and downright deceitful for the Plaintiff/Respondent/Respondent to obtain (without notice to the Defendant/Appellant/Applicant) the release of the said sum knowing fully well that the sum of GH¢873,560.17 was in contention because the appeal was yet to be heard. It is a lawyer’s duty to the court to state the case fully and fairly in the supporting affidavit to an ex parte application failing which the order may be set aside. See the case of Digital Equipment Corpn v Darkerest Ltd [1984] All ER361 at 383.


If the High Court had been apprised of the Order of the Court of Appeal of 2nd December, 2015 and subsequent orders made, the High Court would not have reversed the court of Appeal’s order. Thus the order was irregularly obtained. Subsequently, the High Court’s order made on the 23rd of August 2016 is void and is hereby set aside.


Therefore in the interest of justice, I order that the Plaintiff/Respondent/Respondent pay into court the sum of GH¢873,560.17 and the said sum to be invested in an interest yielding account pending the final determination of the appeal. The said sum should be paid on or before the 30th of November, 2016.