IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
ADDO ATUA & CO - (Plaintiff/Respondent/Respondent)
AFRICAN AUTOMOBILE LTD - (Defendant/Appellant/Applicant)
DATE: 9TH FEBRUARY, 2017
CIVIL APPEAL SUIT NO: H3/102/2017
JUDGES: P. K. GYAESAYOR J.A
FRANCISCA S. BOATENG WITH FLORA A. AMPONSAH FOR PLAINTIFF/RESPONDENT/RESPONDENT
VIVIAN TETTEH FOR DEFENDANT/APPELLANT/APPLICANT
The judgment the subject of this application was delivered on 17/11/2015. From the entry of judgment filed, the plaintiff/respondent is claiming a total sum of Twenty One Thousand, Six Hundred and Sixty Five Dollars and Fifty Cent (US21,665.59) and Ninety- six Million and Ninety-eighty Thousand, Two Hundred and Forty-two Cedis and fifty pesewas (Gh¢96,098,242.50) being legal fees in respect of legal work done for the applicant.
An application to stay the judgment was refused in the High Court and thus leading to the present application.
The applicant avers that the appeal is ripe for hearing and there is a real likelihood of the appeal succeeding and that any judgment in their favour will be rendered nugatory. It has also been argued that the plaintiff/respondent cannot refund the judgment debt in the event of losing the appeal.
In court the applicant urged upon me to grant the application since form 6 has been served and the appeal is ripe for hearing. It is also the submission of the debtor that he was denied the opportunity to cross-examine the plaintiff and also to open his defence. As it is, the only evidence on record is that of the plaintiff/respondent.
On the other hand it has been argued by plaintiff/respondent that judgment was delivered as far back as November 2015 but the defendant is yet to pay anything. They are in a position to refund the amount in the unlikely event of losing the appeal.
Stay of execution shall be granted if there are reasonable grounds for doing so. It is an exercise of judicial discretion to keep the wheels of justice evenly balanced in matters pending on appeal.
On record is a notice of appeal filed by the defendant/debtor indicating his intention to appeal.
It is obvious from available records that defendant at the trial was denied the opportunity to cross-examine the plaintiff and was also denied the opportunity to open his defence even though according to defendant he sought permission on medical grounds.
Other grounds of appeal have been canvassed in the notice of appeal filed. It is not the duty of the court to determine the merits of the case at this stage since it is a matter to be decided at the hearing of the substantive appeal. Stay of execution shall be granted if arguable points of law are raised. The reasons for denying the defendant/appellant the opportunity to cross-examine the plaintiff and to open his defence are not clear except that the trial judge said the defendant had the burden to impeach the plaintiff evidence which they failed to do. This allegation by the defendant is serious and needs to be clarified at the court of appeal.
In addition, the court would have to determine whether the procedure adopted in issuing the writ in respect of solicitors fees under the legal profession Act, 1960 (Act 32) was rightly followed. My view is that there are several areas of controversy to be determined on appeal and in the interim the execution of the judgment must be stayed.
The court of appeal will also determine whether cost of one million cedis awarded at the trial is also excessive having regard to the circumstances of the case.
I have since received from the Registry of the court affidavit of service in support of service of form 6 duly served on plaintiff/respondent. This is a clear indication that the appeal will be heard shortly and it is therefore prudent for me to grant the application in order not to prejudice the outcome of the pending appeal in the light of the colossal amount involved.
Consequently, the application is granted.