IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
NII OKWEI KINKA DOWUONA VI - (Plaintiff/Respondent/Respondent)
TAYSEC CONSTRUCTION LTD. & 2 ORS - (Defendants/Appellants/Applicant)
DATE: 11 TH APRIL, 2018
CIVIL APPEAL NO: H3/96/2018
JUDGES: GYAESAYOR J.A. (PRESIDING), AMADU J.A., SUURBAAREH J.A.
KWAME OFOSU GYEABOUR FOR PLAINTIFF/RESPONDENT DAVID
KODOADZI WITH L. HESSE FOR DEFENDANT/APPLICANT
In this application, the defendants/appellants/ applicants are seeking to stay execution of two rulings of the High Court dated 8th February, 2017 and 28th July, 2017, pending appeal. The Notice of Appeal, exhibit ‘B’ attached to the motion paper however shows that the appeal is against the judgment of the court dated 28th July, 2017.
Eventhough the Notice of Appeal, exhibit ‘B’ is in respect of the ruling/judgment of 28th July, 2017, the grounds of appeal, especially grounds (ii), (iii), (iv) and (vi) clearly relate to the ruling of 8th February, 2017. The ruling of 28th July, 2017 only determined damages to be awarded based on a valuation report and in respect of which the defendants/appellants/applicants never challenged as they failed to cross-examine on it eventhough their counsel was in court. See exhibit NOK 3, exhibited to the affidavit in opposition which refused an application for stay of execution. Since the valuation report was not challenged, grounds (i) and (v) of the grounds of appeal on the Notice of Appeal do not arise and cannot be said to constitute serious issues for the appellate court.
From the reliefs sought in the Notice of Appeal exhibit ‘B’, reliefs (i) and (ii) do not arise from the ruling of 28th July, 2017 but rather the ruling of 8th February, 2017. Eventhough the order for damages were made in the ruling of 28th July, 2017, as the valuation report on which same was based was not challenged they therefore do not constitute any serious grounds of appeal. This mere fact of the award appearing big per se is not a special circumstance in such an application.
From the affidavit in opposition, following the ruling of 8th February, 2017 the 1st defendant/appellant/applicant alone filed a Notice of Appeal against same and upon which it applied to stay execution but this was refused, per exhibit NOK 2 attached to the affidavit in opposition, by the trial judge for the reason that there was no appeal pending as the Notice of Appeal was filed beyond the 21 days in respect of an interlocutory ruling and thus void. It therefore means that grounds (ii), (iii), (iv) and (vi) of the grounds of appeal are in respect of the ruling of 8th February, 2017 in respect of which there is no appeal pending.
It is also necessary to show that per exhibit NOK 3, attached to the affidavit in opposition, an attempt was made by the defendants/ appellants/applicants to stay proceedings after the ruling of 8th February, 2017 but same was struck out for want of prosecution. Undaunted, the application was repeated at the Court of Appeal but was refused per exhibit NOK 4 exhibited to the affidavit in opposition. Exhibit NOK 4 clearly shows that there was no appeal against the ruling of 8th February, 2017.
From a consideration of the affidavit evidence as summarised above and upon which lines the submissions were made, it is clear that there are no real issues for the consideration of the appellate court from what has been stated earlier on the grounds of appeal. As also indicated, the mere fact that an award appears huge is not a special circumstance to warrant a stay of execution. In the circumstances we find that the application lacks merit and is therefore refused.