EVANS ADU MENSAH vs ALICE ARTHUR
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6)
    ACCRA - A.D 2019
EVANS ADU MENSAH - (Plaintiff/Applicant)
ALICE ARTHUR - (Defendant/Respondent)

DATE:  20TH MARCH, 2019
SUIT NO:  GJ/364/2019
JUDGES:  HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:  MARIGOLD ALLOTTEY (MRS.) FOR THE PLAINTIFF/APPLICANT
SENANU ASHIAGBOR FOR THE DEFENDANT/RESPONDENT
MOTION ON NOTICE FOR STAY OF EXECUTION PENDING APPEAL

i. Introduction:

[1] This is an application by Applicant/Appellant/Applicant herein praying that the execution of the Judgment of the Family and Juvenile Court “A” located at the former Commercial Building in Accra dated 11th July, 2018 be stayed pending the determination of the appeal filed at this Court. The application has been brought on the grounds inter alia that the Lower Court failed to take into consideration the best interest of the child and therefore the Applicant/Appellant/Applicant who is dissatisfied with the judgment of the Court presided over by Her Worship Mrs. G.A. Eshun with panel members have filed a Notice of Appeal and the appeal raises substantial issues of law and has a very bright chance of success.

 

[2] Further to the filing of the Notice of Appeal the Applicant is by this application praying the court to stay execution of the judgment of the Court referenced above pending the determination of the appeal filed. The application was filed on November 28, 2018 which was the same day the District Court refused the initial application for Stay of Execution filed and argued by the Applicant in that Court. To that extent this is a repeat application before this Court.

 

[3] The grounds upon which the instant application is premised are catalogued in the supporting affidavit sworn to by Evans Adu Mensah of unnumbered house, Omanjor Accra dated November 28, 2019 and a supplementary affidavits of Robert Allotey Esq. dated January 18, 2019 respectively in support of application. The thrust of the Applicant’s case is that the appeal filed “is not frivolous and contain merit and surely will be successful” despite the refusal of the earlier application for stay of execution by Her Worship, Dora Gloria Araba Eshun (Mrs.) on November 28, 2018. Further, the Applicant contends that the appeal filed raises substantial issues of law and therefore there is the need to stay execution of the judgment pending the outcome of the appeal. According to the Applicant, the Court in granting custody to the Respondent failed to take into consideration the fact that the order will radically change the dynamics of the pattern of the life of the child.

 

[4] It is further deposed that the Respondent lives in a two-room apartment, colloquially known as a “chamber and hall” whilst the Applicant lives in an air-conditioned storey building with his children and therefore changing the custody arrangement is not in the child’s best interest. The Applicant also says the child has been enrolled in a first-class school with her other siblings. Among other grounds, the Applicant says “if stay is not granted, our appeal which is likely to be successful will be endeared (sic) nugatory”.

 

ii. The Arguments of Counsel:

[5] Speaking to the application Learned Counsel Marigold Allotey (Mrs.) first referred to the law and in particular Order 43 Rule 11 of C.I. 47 and such cases as DJOKOTO & AMISSAH v. BBC INDUSTRIAL CO (GHANA) LTD. & CITY EXPRESS BUS SERVICES LTD [2011] 2 SCGLR 825 and JOSEPH v. JEBEILLE [1963] 1 GLR 387, S.C. to submit that in granting the application for stay of execution there are certain factors laid down to be followed by the Court.

 

[6] Counsel reiterated the deposition that in granting custody to the Respondent mother the Court did not take into consideration the best interest of the child. According to Counsel the Court did not take into consideration the pattern of life set up for the child by the Applicant father. In support of the submission, Counsel cited and relied on the case of ANSAH v. ANSAH [1982-83] GLR 1127 Holding 3.

 

[7] The Applicant’s Counsel further posits that the child has become accustomed to a lifestyle including living in an air conditioned house and attending a first class school as against the Respondent who lives in a chamber and hall unit. Therefore, according to Counsel the Court should have taken into consideration that fact and also the school (Burton International School) the child is attending now. Counsel cited the case of OFORI v. OFORI [1981] GLR 745 and ATTU v, ATTU [1984-86] GLR 743 to support the submission.

 

[8] On the issue of maintenance, Counsel submitted that the order made by the Court was not based on any figures and so the Gh300.00 the Court ordered to be paid was without basis. Also, Counsel submitted that the Applicant has been doing a lot for the child in terms of providing for her needs and therefore the amount ordered to be paid is too expensive. Also, Counsel submitted that in the course of the matter no order was made for the payment of support and so the Court was wrong to make orders for the payment of maintenance arrears.

 

[9] On the issue of exceptional circumstance, Counsel submitted that a whole year school fees has been paid and so should the application not be granted and the child forced to change school, the fees paid would have been wasted. Further, according to Counsel the child is enrolled in extra classes and therefore failure to grant the application shall cause undue hardship to the Applicant because of all of the funds spent whilst the Respondent loses nothing. It is for these reasons that the Applicant prays this court, in the interest of justice, to stay the execution of the judgment of the Family and Juvenile Court pending the hearing and determination of the appeal.

 

[10] As would be expected, the Respondent is vehemently opposed to the application. In an affidavit in opposition deposed to by the Respondent herself filed on January 8, 2019, the Respondent deposed that in accordance with the orders of the Family and Juvenile Court she went to exercise the custody granted to her but the Applicant travelled with the child to prevent her from exercising the custody. The Respondent further says she is advised that “the judgment was given in accordance with all the relevant laws and upon due consideration to the peculiar circumstances of the case”. The Respondent has further deposed that the order of maintenance was given with due consideration to the Applicant’s income as a man “with a flourishing hardware business” and therefore the Court did not err in making the award and also awarding arrears of maintenance against him.

 

[11] Speaking against the application, Counsel for the Respondent first submitted that they are vehemently opposed to the application because it is incompetent. Counsel submitted that the Applicant Counsel failed to state his Solicitor’s license on the Motion paper and on the Notice of Appeal filed. According to learned Counsel on that basis alone the application should be dismissed as incompetent.

 

[12] On the merits, Learned Counsel submitted that per the ruling and specifically at page 2, it is clear that the Applicant has failed to comply with the orders made by the Court. According to Counsel the Applicant refused to allow the Respondent to have the child between the period of the judgment and the application for stay of execution with the excuse that he had a pending application for stay of execution. Counsel submitted that the reasons given by the Applicant are untenable because the Respondent as the biological mother is capable of taking care of her daughter.

 

[13] Learned Counsel also submitted that the conditions in the home where the child lives is not conducive for her development. According to Counsel there are about six children in the house with the oldest being about eighteen (18) years old who take care of themselves because the Applicant is mostly not at home. According to Counsel at this age of the child’s life she needs an adult like the Respondent who is her mother to raise her and to teach her basic things she needs to know as a girl child and not the training of a fellow infant. Based on all of the above arguments Counsel for the Respondent prayed the Court to dismiss the application.

 

iii. Analysis & Opinion of the court:

[14] The venerable Taylor JSC in REPUBLIC v COURT OF APPEAL, EX PARTE SIDI (1987-88) 2 GLR 170 at 176 opined that stay of execution. “simply means the suspension of any process or procedure that would post date the judgment. If an applicant asks for such stay pending the hearing and determination of his appeal, then what he is in effect asking is that all processes that can be taken after judgment for the purpose, no doubt of satisfying the judgment should be stayed until the appeal is finally heard and a decision on it given.”

 

[15] I start my analysis with a review of the acceptable principles that apply to an application for stay of execution. Those principles which are well established and are to guide the court in an application like this are:

(a) what the position of the Appellant/Applicant would be if the judgment was enforced and he succeeded on the appeal. See JOSEPH v. JEBEILLE SUPRA.

(b) that if the court is satisfied upon any affidavit or facts proved of the conduct of the defeated party that he is bringing the appeal not bona fide to test the rightness of the judgment but for some collateral purpose the application for stay ought to be refused;

(c) that a court should not stay execution unless there are exceptional circumstances warranting a stay because it is well established that a successful litigant should not be deprived of the fruits of his victory;

(d) that where the court is satisfied that the appeal is frivolous because the grounds of appeal contain no merit and therefore there is no chance of its succeeding it ought to refuse an application for a stay:

(e) whether the grant or refusal of the application will work greater hardship on either party. See Twumasi J in NANA KWASI AGYEMAN VII AND OTHERS v. NANA HIMA DEKYI XIII AND OTHERS [1982-83] GLR 453-463

(f) whether or not the Applicant would be returned to the status quo ante should the appeal succeed. See NDK FINANCIAL SERVICES LTD. v YIADOM CONSTRUCTION AND ELECTRICAL WORKS LTD (2007-2008) SCGLR 39.

(g) whether or not a successful appeal would be rendered nugatory should the application be refused and the effect of the ruling on the Applicant. See CHARLES OSEI BONSU v. DOROTHY ABOAGYE & ANOR (2015) 81 GMJ 25 and DJOKOTO & AMISSAH v. BBC INDUSTRIAL CO (GHANA) LTD. & CITY EXPRESS BUS SERVICES LTD SUPRA.

 

[16] These principles must be applied to the instant application. In applying the principles, I pose this two-part question, namely:

(a) Has the Appellant/Applicant herein demonstrated any exceptional circumstance to warrant a stay of execution? And whether or not the Application is competent?

 

[17] It bears emphasizing that in all cases, the decision to grant or refuse an application for stay of execution involves the exercise of judicial discretion, which is exercised by balancing the competing legal rights of the parties in the application. It is trite that discretion ought to be exercised judiciously and therefore the exercise of discretion is fettered if the decision maker’s decision is perverse or unreasonable on the face of the evidence. This is because it should not be assumed that a grant of discretion is an invitation to exercise personal prejudice, as it is well established in our jurisprudence that discretion in every instance must be exercised judicially and in conformity with the objectives and standards of the law.

 

[18] Applying myself to the principles enunciated supra to the facts of the case I hold the respectful view that even though the appeal has raised some interesting points for the Court’s consideration, for instance the issue about the maintenance, the legal basis of those arguments would certainly be assessed by the Court when considering the main argument. My task in this application pursuant to the above stated principles is to consider among others whether or not the Applicant has demonstrated exceptional circumstances to warrant a stay of the execution of the judgment.

 

[19]The legal principles stated above as a guide to the court in an application for stay of execution structures the relative autonomy or discretion that this court is afforded in coming to a decision on the case at bar. It can be gleaned from the principles established above that first, the Applicants ought to establish exceptional circumstances in order to warrant a stay of execution. In my opinion, the Court in assessing the exceptional circumstances ought to look at the affidavit evidence, the ground of appeal filed vis–à–vis the judgment intended to be stayed. Secondly, where the court took the view that the appeal was not frivolous and has a chance of success, the underlying consideration in the application shall then be on which of the parties would suffer greater hardship should the application be granted or refused.

 

[20] As stated above the Applicant’s main contention is that in granting the custody to the Respondent, the Court did not consider the best interest of the child. So what is the best interest of the child? In our jurisprudence, the law is that in determining whether to grant custody to an Applicant or Respondent the welfare of the child should be the fundamental or paramount consideration. This principle has been given statutory backing in the Courts Act, 1993 (Act 459), Section 18 (2) which provides that "The welfare of the infant shall be the primary consideration of the High Court in the exercise of its powers under this section." An “infant” defined as a person under the age of 21 years.

 

[21] To my mind, it cannot be disputed that the best interest of the child is the conceptual cornerstone of the above clause in the Court’s Act. Therefore, the promotion of children’s safety and well-being is accomplished by making decisions in their best interest and so in making such decisions it should not be based on any subjective whim or short term benefits or trivialities. In my respectful opinion, any decision made ought to be made objectively and independently of persons with invested interest but to enhance the well-being of the child.

 

[22] Further, in my respectful opinion a decision which is in the best interest of the child is the one that protects the child’s life and health and which accords with the principles of fundamental justice provided that all of the underlying facts and circumstances are considered in making the determination/decision.

 

[23] For the purpose of the instant application I note at the outset that in both the judgment and the ruling for stay of execution, the learned Magistrate recognized that in resolving the issue of custody and access, the overarching consideration was the child’s best interest. With this in mind, the Magistrate engaged and stated the relevant provisions of the Children’s Act, 1998 (Act 560) in making her decision. Even though she did not make her findings of fact in applying the law in the judgment it can be inferred from the ruling that she applied the law as she understood it to the evidence heard and concluded that it would be contrary to the child’s best interest to let her remain with the Applicant (father) who has other children with other women, most of whom live with him alone.

 

[24] Based on the law and in considering the instant application at this time and without the benefit of the entire proceedings, to my mind a fair reading of the judgment and the ruling for the stay of execution leads me to conclude that the contention that the custody order was made without the best interest of the child is unfounded.

 

[25] I have read the cases cited by Counsel for the Applicant such as Ofori v Ofori Supra and Attu v. Atty supra. I am of the respectful opinion that they are distinguishable. In Attu v. Attu for instance the Court allowed the children to remain with the mother on the sole ground that they did not know the father. The Court’s nevertheless condemned what it termed to be the reprehensible behavior of the mother who surreptitiously removed the children from the jurisdiction when the application for custody was pending. I understand the Court to speak against any self-help tactic by any litigant in a matter such as the one at bar.

 

[26] In Ofori v Ofori as well, Amuah Sekyi J (as he then was) refused the father’s application for custody of the two infant children both of whom were United States of America citizens and were ordinarily resident in the USA with the mother among other reasons that “there was no good reason for disturbing their education and upbringing by the mother in the United States where they were born and had lived ever since except for two brief periods in 1975 and 1978 when they came to Ghana with the parents”. The father was hoping to obtain the order and then relocate the children to Ghana. Clearly, based on the evidence placed before me in my respectful view the facts are totally different from the facts in this case. Be that as it may, since this is only the application for stay of execution, I shall restrain myself from making any definitive findings on the lower Court’s conclusion.

 

iv. Conclusion & Disposition:

[27] Having heard the arguments of Counsel and considered the affidavit evidence I am of the respectful view that I am not convinced that the payment of the one year school fees ought to be overly touted in favour of the Applicant. As pointed out to Counsel at the hearing, it was a self-help tactic adopted by the Applicant to help his case. The fees was paid at the time when the custody order had been made and he knew that the mother had been granted custody, to that extent the Court places little weight on same in making this decision.

 

[28] The other factors for my consideration include the hardship on the parties should the application be refused and/or granted. From the depositions contained in the affidavit in opposition and as the Lower Court found the Respondent has been deprived of the benefits of the orders made by the Court to have her daughter. To my mind it is not enough for the Applicant to say that because the Respondent lives in a two-room residential unit it is not in the child’s best interest. There is no evidence that the Respondent-mother cannot raise the child well and cannot find a school of similar standard and status to the one the child is attending now. On the other hand the father, Applicant shall continue to have access to the child who shall continue to have a loving bonding relationship with him when living with the mother. To that extent maintaining the status quo as it exists would continue to cause hardship to the Respondent – mother.

 

[29] The next consideration is balancing the interest of the parties. In looking at this issue and making the decision I wish to state that the Court is alert to the fact that it should not allow its processes to be abused by the Applicant who it is clear wants to use the legal process (es) to circumvent the orders made by the Court. For instance the judgment was for him to hand over the child seven days after the date of the judgment in July 2018 but he failed to comply on the grounds that he had filed an appeal. Also, after the stay application was denied at the lower court he again filed the instant application on the same day and so still refused to hand over the child to the custodial mother. In my view therefore; in balancing the interest of the parties I am of the view that this Court must make a decision even at this preliminary stage that speaks clearly that Court Orders are meant to be respected and obeyed first and foremost than to support tactics adopted by the Applicant. The interest of the Respondent and the child far outweighs that of the Applicant.

 

[30] On the issue to not disclosing a valid Solicitor’s license I note that when Counsel for the Applicant was given the opportunity to respond, she did not provide the Court with any valid reason except to say that under Order 19 of C.I. 47 there is no requirement that a Solicitor’s license be provided. Clearly, the Court found the explanation to be unreasonable and without basis. The Notice of Appeal by which this court jurisdiction was invoked does not have the Solicitor’s number of Counsel who issued and filed same. The instant application also does not have it. The question is does this Court have the powers to waive same? My read of the Supreme Court cases such as JUSTIN PWAVRA TERIWAJAH v. NUERTEY KORBOE and HON KWABENA MINTAH AKANDOR & ANOR v THE ATTORNEY GENERAL & OTIKO AFISAH DJABAH (Unreported Writ No. J1/11/2017) delivered on December 12, 2017 speak to the fact that without a valid Solicitor’s license the process issued is incompetent.

 

[31] In this case I note that the Applicant Counsel did not request and did not seek leave to furnish the Court with same after the hearing on February 25, 2019. As of today, March 20, 2019 no proof of the license has been provided to the Court. To that extent, since by Article 129 (3) of the 1992 Constitution this Court cannot disregard the decision of the apex Court which is binding on me, it is my holding that both based on procedure and on the merits the application is to be refused and it is so refused. Cost of Gh3,000 against the Applicant.