IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ACCRA - A.D 2017
BARCLAYS BANK OF GHANA LTD - (Defendant/Applicant)
CHARLES NYARKO - (Plaintiff/Respondent)
DATE: 11TH JULY, 2017
SUIT NO: H3/548/2017
JUDGES: A MABEL M. AGYEMANG (MRS.) JA – SINGLE
EVANS DZIKUNU FOR DEFENDANT/APPELLANT/APPLICANT
FRANK MARTEY FOR PLAINTIFF/RESPONDENT/RESPONDENT
In the instant application, the defendant/appellant/applicant (hereafter referred to as the applicant) brought an application for a stay of execution of the ruling of this court duly constituted, pending appeal to the Supreme Court.
The application was supported by an eighteen-paragraph affidavit, as well as a seven-paragraph supplementary affidavit sworn to by Evans Gade to Djikunu of counsel for the applicant herein, in which he deposed to the following matters: that on 31st May 2017, this court duly constituted dismissed the applicant’s application for a stay of execution filed pursuant to Article 138(b) of the 1992 Constitution, and that it followed the dismissal of an application for a stay of execution of the judgment of the court below delivered on 28th February 2017. It was further deposed that the refusal of the application by the court duly constituted, was without regard to the stipulation regarding the payment of colossal judgments debts to require the judgment creditor to give an undertaking, set out in the judgment of the Supreme Court in Adu (per Attorney) v. GRA [2013-2014] SCGLR 1176. The deponent asserted additionally, that the appeal before the Supreme Court raised serious points of law hence the need for the grant of a stay of execution.
The application was strongly opposed by the respondent who in a ten-paragraph affidavit, averred that not only was the instant application without merit - in that the principle espoused in the case of Adu v GRA (supra) -which seemed to be the principle underpinning the instant application, was not breached by the ruling of the court as constituted, but that the entire application was an abuse of the process of this court.
Having read the affidavits filed in support of and against the grant of the instant application and having heard both counsel, I dismissed the application upon sober consideration on the 4th of July 2017 and reserved my reasons for so doing. I give them now.
On the 28th of February 2017, the High Court (Commercial Division) entered judgment for the respondent for the recovery by the respondent of the sums of GHC 95,155.20 and USD56, 175.00.
On the 2nd of May 2017 this court, coram: Aduama-Osei JA, granted a stay of execution in part, ordering the judgment debtor/applicant to pay fifty percent of the Cedi, and AS well as the US Dollar component to the judgment creditor/respondent.
In its ruling of 31/5/17, this court duly constituted, refused the applicant’s application which it brought under Article 138(b) of the 1992 Constitution, for the reversal, variation or setting aside of the ruling of the single Justice of the court.
The applicant lodged an appeal against the said ruling at the Supreme Court, and by the instant application, sought a stay of execution for the reasons set out before now.
Among other matters, it is manifest that the case of Adu (supra) which was relied on as the main argument undergirding this application, was wrongly canvassed - as that case did not prescribe that for all cases, an undertaking was a sine qua non for the refusal of a stay of execution. In that case the apex court did indeed express its unhappiness regarding the blanket grant/refusal of a stay of execution. But it directed that where the circumstances permitted such, that the order be made on condition that the amount be paid into court, or if refused, that the judgment creditor be made to give security. The court, in giving the said direction recognised that the peculiar circumstances of each case must be considered, and the application, dealt with on a case by case basis. But beyond my view that the learned counsel for the applicant’s stance was, not tenable, it was clear to me that the application lacked competence in that it sought a stay of execution of a ruling that made no executable orders.
As aforesaid, this court duly constituted simply refused to grant the application before it to vary, set aside the ruling of the single Justice. The court did not go further to make any orders. There is in effect nothing to stay execution. There is a glut of authority that in such a circumstance, no stay of execution can be granted, see: Mensah v Ghana Football Association &Ors [1989-90] GLR 1; also: N.B. Landmark Ltd v Lakiani [2001-2002] SCGLR 318.
Thus did I dismiss the application. I go ahead to award costs of GH¢2,000 against the applicant.