[i] Introduction:

[1] This Court’s ruling of June 24, 2019 is the subject-matter of the instant application. The Plaintiff/Appellant/Applicant herein is praying for an “order of injunction restraining the 4th Defendant/Respondent from paying any monies paid to it by the Government of Ghana for debts owed by the Government to the 1st Defendant pending the Plaintiff/Applicant’s Appeal against the decision of this Court dated 24th June 2019 and or such further and other orders as this Court may seem fit”. The application has been brought on the grounds inter alia that the Plaintiff who is dissatisfied with the ruling of this Court has filed a Notice of Appeal and the appeal raises substantial arguable points of law for the Court of Appeal’s consideration and thus has a very bright chance of success.

ii. The case of the Applicant & Counsel’s Submission:

[2] The grounds upon which the instant application is premised are catalogued in a 65 paragraph initial affidavit and a Supplementary Affidavit all deposed to by Chiedu Okanta, the Country Chief Inspector of the Plaintiff Bank. The thrust of the Plaintiff/Applicant’s case is that if the 4th Defendant is not restrained and the ruling of this court, which is under a legal challenge by way of the appeal succeeds it will be rendered nugatory and the loss the Plaintiff/Applicant would suffer would be irretrievable.

[3] I note that even though the affidavit is very lengthy it is only a rehash of the depositions made for the original application. In fact, the relevant depositions in so far as the instant application is concerned starts from paragraph 48 of the affidavit. The Court notes that the Plaintiff’s claim is for recovery of monies from the 1st Defendant, which Plaintiff contends it is entitled to. The Court notes that the Plaintiff in both the Writ of Summons and the affidavit in support of the application for the original injunction, contended that, the 1st Defendant would not suffer any hardship and harm should the application be granted by this Court, because the payment, which it is seeking to put on hold, would still be in the custody of the 4th Defendant.

[4] The Plaintiff also contends that the two directives given by the 2nd Defendant were ultra vires of the agreed parameters. In addition according to the Plaintiff/Applicant by statute, the 2nd Defendant had no power to unilaterally vary the commercial terms of agreement reached between the Plaintiff and the 1st Defendant. According to the Applicant by virtue of this, the decision reached by the 3rd Defendant is a nullity and not binding on the Plaintiff and the 1st Defendant.

[5] It is the case of the Plaintiff that the Court having accepted that the two directives by the 2nd Defendant were not supported by the agreed parameters, it was wrong for the court to refuse the Plaintiff’s injunction on the ground that it was not just and convenient to grant it. The Plaintiff asserts that the 4th Defendant is only a vehicle purposely owned by the Ghana Chamber of Bulk Oil Distributors to acquire both Bulk Distribution Companies (“BDC”) and receivables from the Government of Ghana which had accumulated as a result of foreign exchange loss under-recoveries incurred by the BDCs in relation to the importation of petroleum products by the BDCs.

[6] The Applicant further contends that further to the report of the 3rd Defendant based on the two directives of the 2nd Defendant, which the Plaintiff has complained, the Plaintiff will rather be indebted to the 1st Defendant in the sum of USD 1.79 million. The Applicant says it is necessary that the instant application be granted because the 1st Defendant has approached the 4th Defendant to be paid the remaining funds of the BDC debt since, the report of the 3rd Defendant shows that the 1st Defendant does not owe the Plaintiff. To that extent, the Plaintiff contends that if the 4th Defendant is not restrained from paying the funds to the 1st Defendant until the determination of the Plaintiff’s appeal, the 4th Defendant will pay the funds to the 1st Defendant and the 1st Defendant will apply same to pay its creditors to the exclusion of the Plaintiff and also for the running of its business.

[7] In moving the application and arguing for the grant, learned Counsel for the Plaintiff/ Applicant, Mr. Assad Gbadegbe informed the Court that the Applicant relies entirely on the affidavit evidence and the Amended Statement of Case filed. When the Court inquired from Counsel, the basis for the application and under which rule of Court the application is based, Counsel replied that it is based on the inherent jurisdiction of the Court. He also said it is an injunction even though the ultimate remedy is a stay of execution pending appeal. In the Amended Statement of Case it is argued that the High Court has jurisdiction to grant an injunction pending appeal and the case of Republic v. High Court, Ho; Ex Parte Evangelical Presbyterian Church of Ghana [1991] 1 GLR is cited as the authority for the submission. Counsel has also cited the case of Agyeman II v. Hima Dekyi XIII [1984-86] GLR 385 to further submit that the High Court has jurisdiction to grant an injunction pending appeal.

[8] Counsel further argued that in Republic v. High Court, Ho; Ex Parte Evangelical Presbyterian Church of Ghana supra the Supreme Court held that an injunction pending appeal was to ensure that the status quo was maintained pending the determination of the appeal. Counsel also argued that the position of the Supreme Court was also a common law rule. Mr. Beyuo has cited an old English case of Wilson v Church (No.2) (1879) 12 Ch. D 454 and the statement of the law of Cotton LJ wherein he stated that “when a party is appealing, exercising his undoubted right of appeal, this Court ought to see that the appeal, if successful is not nugatory” to implore the Court to grant the application.

[9] I note that Counsel further argued that the appeal is likely to succeed and in that respect relied heavily on the arguments initially made to the Court and submitted that its appeal is not frivolous. Based on all of the arguments made and the cases cited learned Counsel concluded that the Court ought to exercise its discretion in favour of the Applicant and grant the application.

iii. The Case of the 1st and 2nd Defendants & the Argument of Counsel:

[10] The 1st Defendant on its part stated in its affidavit in opposition that, it needed the money to do other things, including growing and improving its business to enable it meet its business obligations. To the 1st Defendant, the issue as to the purported indebtedness of the 1st Defendant to Plaintiff has been settled as evidenced by the contents of the report produced by Price Waterhouse Coopers, the 3rd Defendant on the accounting position of the two parties.

[11] The 1st Defendant further deposed that the contents of paragraphs 55 and 56 of the Plaintiff’s affidavit in support of its application were false and misleading, indicating that, the Court never made a finding that, “the two directions by the Bank of Ghana were not supported by the agreed parameters was prima facie supportable.” The 1st Defendant also deposed that, it is not true that, the BDCs have assigned their rights in the BDC Debt to the 4th Defendant, a position 1st Defendant says, cannot be supported by the Applicant’s own Exhibit CO 19, which Plaintiff describes as an assignment.

[12] According to 1st Defendant, the Plaintiff has falsely misrepresented the ruling of the Court and also misled the Court with the deposition that the 1st Defendant has written to the 4th Defendant to demand payment. According to the 1st Defendant there is no basis whatsoever for any such instruction to be made by the 1st Defendant to instruct the 4th Defendant to pay any money. The 1st Defendant further states that, Plaintiff’s paragraph 48 is not true because Exhibit CO17 was only an instruction to the 4th Defendant to pay monies paid by the Government of Ghana to the 4th Defendant for the sole benefit of 1st Defendant.

[13] Further, it is the case of the 1st Defendant that, applications of this nature must be made in good faith and not to mislead the court in the exercise of its discretionary powers. In this case it is the contention of the 1st Defendant that the Applicant has not been truthful.

[14] The 2nd Defendant on the other hand, on the 10th day of July 2019 filed an affidavit in opposition to the motion through Mr. Bright Okyere-Adjekum Esq. He deposed that paragraphs 55 and 56 of the affidavit in support of the motion are false and painfully misleading. He also deposed that that paragraph 58 to 60 are new matters now introduced and did not form part of the materials the Court relied on to render the decision, which is the subject of the Appeal. He further deposed that the Plaintiff and the 1st Defendant submitted themselves to the arbitration of the 2nd Defendant and appointed the 3rd Defendant as a Consultant whose findings were deemed to be final and binding.

[15] The further depositions of Mr. Okyere-Adjekum are that the directions the 2nd Defendant gave for the resolution of the matter were consistent with its mandate both by law and the Memorandum of Understanding (MoU) and it is in the interest of the banking system that the decisions of the 2nd Defendant until found unlawful are not disturbed. He also deposed further that the alleged breach of natural justice is false because both Plaintiff and 1st Defendant were given the opportunity to articulate their positions before the Consultant came out with its Report.

[16] In the view of Mr. Okyere-Adjekum having conclusively determined the dispute between the parties it is not open to the Plaintiff to invoke this suit on the grounds it has come to Court to challenge the 2nd Defendant’s decision. According to the 2nd Defendant the Court’s decision, which is the subject of the Appeal is sound and the appeal lack all the prospects of success to that extent it is further deposed that if the Court grants this present application it would amount to the Court sitting on appeal on its own decision and reversing itself.

iii. Arguments in Opposition:

[17] In opposing the application, learned counsel for the 1st Defendant/Respondent, Mr. Thaddeus Sory informed the Court that the 1st Defendant relies completely on the affidavit in opposition and the statement of case filed. He submitted that the instant application is anchored in the Notice of Appeal filed but according to Counsel the anchor will not hold because a look at the grounds of appeal show that all the grounds are not admissible. Mr. Sory submitted that “the rules of the Court of Appeal require that where an appellant alleges an error on the part of the decision of the Court appealed against, they must specify by way of particulars the nature of the error. Failure to do this nullifies the ground of appeal ex vigore legis”. Counsel referred to Rule 8(4) of the Court of Appeal Rules, 1999 (C.I. 19) to support the contention.

[18] Further, Mr. Sory submitted that the Applicant’s reliance on the inherent jurisdiction of the Court shows that the application is not sustainable. According to counsel, the inherent jurisdiction of the Court is not a default jurisdiction such that when a party cannot find a basis for any application it can fall on it. Based on all of the arguments contained in the statement of case filed, Counsel prayed the Court to dismiss the application.

[19] Mr. Okyere-Adjekum on his part submitted that the application lacks merit because what the Plaintiff is seeking from the Court of Appeal is exactly what the Applicant is claiming in this application. To that extent, Counsel argued that should the Court grant this application it would have granted the appeal. Counsel therefore submitted that there is absolutely, no justification for the application and the prayer. He therefore prayed that the application should be dismissed.

iv. Analysis & Opinion of the Court:

[20] I start my analysis with a review of the acceptable principles that apply to an application of such nature by which the Applicant in effect is praying the Court to stay of execution of the ruling of June 24, 2019. I wish to state that having read the case of Republic v. High Court, Ho; Ex Parte Evangelical Presbyterian Church of Ghana supra, I am of the view that the apex Court did not lay down a new principle that after an appeal is filed an Applicant should again or automatically go back to the Court of first instance for an “injunction”. It is clear that the Court entertained the application on the grounds that the record of appeal was not ready for transmission to the Court of appeal and the case itself had net been entered into the cause list of the Court of Appeal etc. To that extent, I am of the respectful opinion that the Supreme Court did not create another mode of staying execution of Courts’ rulings/judgments. In this case there is no evidence before me that what informed the basis of the Supreme Court decision in the case relied on by Counsel is the same situation/scenario here. I am therefore of the view that the instant case is distinguishable.

[21] Since the principles for the grant of injunction were discussed in the earlier ruling and since Mr. Gbadebge conceded that the ultimate remedy the Applicant is seeking from this Court is a stay of execution even though it has titled the application as an injunction pending appeal, I wish to rely on the well-established principles set down in an application such as the one at bar. The principles 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 [1963] 1 GLR 387, S.C.

(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 [2011] 2 SCGLR 825.

[22] These principles must be applied to the instant application for injunction pending appeal. In applying the principles, I pose these two fundamental questions, namely:

(a) whether or not based on all the facts the ruling delivered by this Court is executable and can be stayed? and if executable

(b) has the Plaintiff/Appellant/Applicant herein a demonstrable and exceptional circumstance to warrant a stay of execution?

[23] It bears emphasizing that in all cases, the decision to grant or refuse an application for stay of execution/injunction as prayed for here involves the exercise of judicial discretion, which is exercised judiciously by balancing the competing legal rights of the parties in the application.

[24] Generally, as affirmed by the Supreme Court in a legion of cases, an order of a court of competent jurisdiction is said to be executable if same can be enforced by any of the known execution processes of the law as for instance provided for under Order 43 of The High Court Civil Procedure Rules, 2004 CI 47. In other words, an application for stay of execution pending appeal or an injunction pending appeal as in this case can be made in respect of an executable judgment of a court.

[25] In N.B. LANDMARK LTD v. LAKIANI [2001-2002] SCGLR 318, the Supreme Court per Acquah JSC (as he then was) eloquently stated the above position as follows:

“Now it is trite learning that an application for stay of execution, presupposes that the order or decision in respect of which the stay is sought is capable of being executed by any of the known processes of execution. If an order or decision is incapable of being executed, an application for stay cannot be applied in respect of it”.

See also MENSAH v. GHANA FOOTBAL ASSOCIATION AND OTHERS [1989-90] 1 GLR 1

[26] Further, the Supreme Court put the matter beyond per adventure in the case of APPIAH v PASTOR LARYEA-ADJEI (2007-2008) SCGLR 863 when the apex Court speaking through Sophia Akuffo JSC (as she then was) reaffirmed the above legal principle as follows:

“Where an order of a court is not capable of execution by any known process of the law, it is also not capable of being stayed…”

See also the case of ANANG SOWAH v. ADAMS [2009] SCGLR 111 per Atuguba JSC.

[27] In my respectful opinion this Court ruling of June 24, 2019 did not make any order to either the Plaintiff/Applicant or in favour of the 1st Defendant by which the instant application is to protect. To reiterate, the Court dismissed the Plaintiff/Applicant’s prayer for injunction restraining the 4th Defendant/Respondent from paying any monies paid by the Government of Ghana for debts owed by the Government to 1st Defendant pending the final determination of this suit.

[28] What then was the ruling and/or the order made by this Court which, the Applicant is praying the Court to injunct and/or in effect stay the execution? The concluding part of the ruling is contained in paragraph 50 and it is as follows:

“…In this case, having subjected all of the affidavit evidence before me to scrutiny and considered the able submission of all Counsel and having regard to the competing claims of the parties and given the facts and the background of the case and on the balance of convenience, and basing myself on the rule as stated by the Supreme Court per Kpegah JSC in EKWAM v PIANIM SUPRA, and keeping faith to the law on the grant or refusal of injunction as stated above I am of the respectful view that it shall not be just and/or convenient in terms of Order 25 r 1(1) of CI 47 to grant this instant application. Consequently, the application for interlocutory injunction is REFUSED”

In the opinion of the court and with respect to Counsel, from a plain reading of the concluding part of the Court’s ruling quoted above there is nothing contained therein which is executable by any known execution processes of the law as provided for under Order 43 of CI 47, The High Court Civil Procedure Rules, 2004.

[29] To quote Taylor JSC in MENSAH v. GHANA FOOTBALL ASSOCIATION supra “The concept of stay of execution in our law ….is founded on the idea that where the person against whom the order is directed is in no position to execute the judgment by the various known execution processes, then stay of execution is meaningless and logically pointless. As a hypothetical illustration, it is meaningless and pointless to attempt to stop a man from shooting his neighbour when the man has neither a gun nor a bullet”.

v. Conclusion & Disposition:

[30] I agree with Mr. Okyere-Adjekum that acceding to the Applicant’s request to grant the instant application would amount to allowing the Applicant to re-argue the application for injunction which the Court dismissed on June 24, 2019. There is certainly no legal basis for that. In my considered opinion I made the decision based on my understanding of the law and appreciation of the facts as presented. To my mind, in this application the Applicant has just re-packaged the very arguments made which were dismissed under the guise that the Court misapplied the law on the grant of injunction. I am of the respectful opinion that, the Judges of the Court of Appeal are best suited to review the decision made by this Court. I can only reiterate my analysis as contained in the ruling of June 24, 2019 to conclude that it would not be just to grant the instant application.

[31] Finally, with those principles stated above in mind and based on the facts of this case and having exercised the inherent power to scrutinize the affidavit evidence before me, in all fairness to the Applicant, I do not think that the Applicant established any exceptional circumstances to warrant the order for injunction prayed for. I have chosen not to comment on the likelihood of success of the appeal vis-à-vis the contention that the entire grounds of appeal are inadmissible on the grounds that to my mind the above analysis adequately disposes of the application as without merit and same is DISMISSED.

[32] In the light of the above discourse this instant application is dismissed as unmeritorious. Cost of GH₵2500 each to the 1st and 2nd Defendants respectively.

CASES REFERRED TO

REPUBLIC v. HIGH COURT, HO; EX PARTE EVANGELICAL PRESBYTERIAN CHURCH OF GHANA [1991] 1 GLR

AGYEMAN II v. HIMA DEKYI XIII [1984-86] GLR 385 WILSON v CHURCH (No.2) (1879) 12 Ch. D 454 JOSEPH v. JEBEILLE [1963] 1 GLR 387, S.C

 NANA KWASI AGYEMAN VII AND OTHERS v. NANA HIMA DEKYI XIII AND OTHERS [1982-83] GLR 453-463

NDK FINANCIAL SERVICES LTD. v YIADOM CONSTRUCTION AND ELECTRICAL WORKS LTD (2007-2008) SCGLR 39

CHARLES OSEI BONSU v. DOROTHY ABOAGYE & ANOR (2015) 81 GMJ 25

DJOKOTO & AMISSAH v. BBC INDUSTRIAL CO (GHANA) LTD. & CITY EXPRESS BUS SERVICES LTD [2011] 2 SCGLR 825.

N.B. LANDMARK LTD v. LAKIANI [2001-2002] SCGLR 318

MENSAH v. GHANA FOOTBAL ASSOCIATION AND OTHERS [1989-90] 1 GLR 1

APPIAH v PASTOR LARYEA-ADJEI (2007-2008) SCGLR 863

ANANG SOWAH v. ADAMS [2009] SCGLR 111