IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
ACCRA - A.D 2019
PROFESSOR COLLINS FOSU - (Plaintiff)
FIRST TRUST SAVING & LOANS & 11 OTHERS - (Defendant)
DATE: 29TH JULY, 2019
SUIT NO: RPC 31/2019
JUDGES: DR. RICHMOND OSEI-HWERE, J
KWASI AFRIFA FOR AMA ASENSO FOR THE PLAINTIFF
BISMARK NSIAH ABOAGYE FOR ARCHIE MARTIN DANSO FOR THE DEFENDANT
The defendants herein filed this application by motion on notice for stay of execution of the judgment in default of appearance entered against them.
By a writ of summons issued on the 12th October, 2018, the Plaintiff/Judgment/Creditor/Respondent (hereinafter referred to as the Plaintiff) claimed against the defendants herein as follows:
a. A declaration that the plaintiff is entitled in law and fact to lift the veil of incorporation of the 1st and 2nd defendants with a view to making the 3rd -11th defendants personally liable for the indebtedness due and owed him by the 1st and 2nd defendants.
b. A declaration that by reason of the repeated pattern of broken promises and undertakings, the plaintiff is entitled to the full payment of is investment made with the 1st defendant and guaranteed by the 2nd defendant in addition to general, special and punitive damages.
c. A declaration that the conduct of the 1st and 2nd defendants in relation to the indebtedness owed the plaintiff is fraudulent and/or concealed fraud on the plaintiff whose indebtedness due him must be settled by all the defendants.
d. SUCH FURTHER ORDER(S) as the Honorable Court may deem fit.
On 25th October, 2018 the court entered judgment in default of appearance against the 1st and 2nd defendants. However, on 18th February, 2019 the court set aside the default judgment entered on 25th October, 2018.
Again, on 22nd March, 2019 upon an application by the plaintiff, judgment in default of appearance was entered against the 2nd defendant.
On 17th June, 2019 an application to set aside the default judgment was dismissed by the court.
The defendants have filed a Notice of Appeal against the default judgment entered by the court as well the order dismissing the motion to set aside the default judgment. The instant application is borne out of the Notice of Appeal.
The grounds of the application as captured by the affidavit in support and argued by counsel for the defendants are as follows:
1. The contention of the Applicants is that there are serious legal issues which could be determined on appeal and for which reason a stay of execution ought to be granted.
2. That apart from the 2nddefendant who was served with the writ of summons, the rest of the defendants had not been served.
3. That stay of execution is permissible in such circumstances especially when the question of the jurisdiction of the Court to enter the judgment is under attack and the issue of the violation of the fundamental principle of natural justice in hearing the other side is crucial in the instant case. Counsel referred the court to the case of Republic vrs High Court, Tema Ex parte Kofi (1999/2000) 1GLR at page 61 holdings 2 and 3 and Dzobo v Agbeblewu and Ors, (1991) 1GLR page 294 holdings 1 and 2.
4. That the defendants will suffer greater hardship if the motion for stay of execution is refused.
The plaintiff is opposed to the application. Counsel for the plaintiff argued that application ought to be dismissed because it is totally devoid of merit. Counsel submitted that the law has always been that Appeal is a creature of statute and therefore the requirement as to filing of the Notice of Appeal must be complied with strictly in order to bring the Appeal into being in the first place. He stated that the Notice of Appeal was lodged at the wrong registry i.e. it was lodged at the Registry of Court of Appeal instead of the High Court Registry for same to be transmitted to the Court of Appeal registry.
Counsel submitted further that the second fundamental defect of the Notice of Appeal is that it is double barreled and contrary to the law as set out by respectable authority. He argued that a Notice of Appeal must relate to a specific judgment or order and not multiple orders or judgments. He cited the decision of the Court of Appeal in Otoo v Duah 1991 2GLR 247 and the decision of the Supreme Court in Intelsat V Network Computer  1SCGLR 218 in support of his submission.
Counsel also submitted that no judgment has been entered against the 3rd to 11th defendants as well as the 1st defendant. It is therefore wrong for them to be joined in the appeal. Counsel submitted that it is clear from the Appeal lodged and the stay of execution filed that the instant application only seeks to frustrate the Plaintiff in his attempt to recover his life-long savings which the defendants particularly the 2nd has kept much to his hardship and inconvenience. He invited the court to refuse the application, as the plaintiff will suffer greater hardship if the same is granted.
The grant of stay of execution is a discretionary power exercised by the court. In exercising its discretion, the court must take into consideration the competing rights of the parties. The power to grant stay of execution is an exercise of judicial discretion which is guided by defined principles.
The legal principles applicable in granting or refusing the application of a stay of execution pending appeal is encapsulated in the case of Nana Akwasi Agyeman VIII v Nana Hima Dekyi XIII(1982-83) GLR453 as follows:
(a) if the court was satisfied upon any affidavit or facts proved of the conduct of the defeated party that he was bringing the appeal not bona fide to test the rightness of the judgment but for some collateral purpose the application should be refused;
(b) a court should not stay execution unless there were exceptional circumstances warranting a stay because it was well established that a successful litigant should not be deprived of the fruits of his victory;
(c) where the court was satisfied that the appeal was frivolous because the grounds of appeal contained no merit and therefore there was no chance of its succeeding it should refuse an application for a stay. Tormekpe v. Ahiable, Court of Appeal, 27 January 1970, unreported; digested in (1970) C.C. 44 and Levandowsky v. Attorney-General (No. 2)  1 G.L.R. 49, C.A. cited;
(d) whether the grant or refusal of the application would work greater hardship on either party; and
(e) that the appeal if successful was not rendered nugatory.
See also Baiden v Ansah (1973)1 GLR 33; Mensah v Ghana Football Association (1989-90) 1 GLR 1, SC; Joseph v Jebeile (1963) 1 GLR 387, SC; and Republic v Court of Appeal, Ex parte Sidi [1987-88] 2 GLR 170, SC.
In Mensah v Ghana Football Association (1989-90) 1 GLR 1 at page 8, the Supreme Court endorsed the earlier decision of the court in Joseph v Jebeile (1963) 1 GLR 387, SC. The court held that Joseph v Jebeile (supra) provides a better guide to what should influence a court in deciding whether to grant a stay of execution of its own judgment or of one on appeal before it. It affirmed the view that the main consideration was what the position of the appellant would be if the judgment were enforced and he succeeded on appeal. In the Joseph v Jebeile case (supra), Akufo-Addo JSC (as he then was) stated at page 390 of the report as follows:
“In this respect it is wholly immaterial what view a trial judge takes of the correctness of his own judgment or of the would-be appellant’s chances on appeal, if the position . . . is that the victorious party is unlikely to be able to refund the amount paid to him, or the defeated party [is unlikely] to be restored to the status quo ante in the event of a successful appeal (and it should not be difficult to determine the likelihood of such an event), then it would be palpably unjust to refuse stay of execution . . .”
Thus, no matter how uncomfortable it might be, the current jurisprudence requires the court to assess the likelihood of success of its own judgment on appeal in determining whether to grant or refuse the application for stay of execution. However, this does not call for a determination of the appeal by the court but an assessment as to whether the grounds of the substantive appeal raise serious points of law for the consideration of the appellate court. If that first hurdle is crossed, then the court would consider the balance of convenience – whether the victorious party should be able to be restored to the status quo ante in the event of a successful appeal.
I have perused the grounds of appeal filed and it is my considered opinion that the grounds of appeal do not set out any serious point of law to be determined by the Court of Appeal. I do not intend to assess the competence of the Notice of Appeal but it is clear that the grounds canvassed are mostly at variance with the record. The 1st, 3rd to 11thdefendants are appealing against a nonexistent judgment against them. It is apparent from the record that the judgment was entered against only the 2nd defendant on the 22nd March, 2019 and the likelihood of success of the 2nd defendant’s appeal is not apparent on the face of the record.
The judgment being appealed against involves the payment of liquidated sum. Therefore, in the event of a successful appeal the plaintiff can be made to refund the monies paid to him by the 2nd defendant.
In sum, the 2nd defendant has not proved the existence of exceptional circumstances to warrant the grant of this application. On a balance of convenience, it is more prudent to refuse the application. Consequently, the application is hereby dismissed.
Costs of GHC4,000.00 awarded against the defendants.