MR ISAAC KWADWO GYASI vs MR. KWAKU GYASI & OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    KUMASI - A.D 2019
MR. ISAAC KWADWO GYASI - (Plaintiff)
MR. KWAKU GYASI AND OTHERS - (Defendant)

DATE:  22 ND FEBRUARY, 2019
SUIT NO:  P/RPC 90/2015
JUDGES:  DR. RICHMOND OSEI-HWERE ,J
LAWYERS:  DANIEL SEKYERE FOR 1ST DEFENDANT/JUDGMENT DEBTOR/APPLICANT
KOFI EDUSEI FOR PLAINTIFF/JUDGMENT CREDITOR/RESPONDENT
RULING

 

The 1st defendant/judgment/applicant (hereinafter referred to as the applicant) filed this application by motion on notice for stay of execution of the judgment delivered by this court against him on 16th October, 2018.

 

By a writ of summons issued on the 24th April, 2015, the plaintiff/judgment debtor/respondent (hereinafter referred to as the respondent) claimed against the defendant herein as follows:

 

Recovery of an amount of SEVENTY-FOUR THOUSAND UNITED STATES DOLLARS ($74,000) or its equivalent in Ghana cedis being the refundable amounted the plaintiff paid to the defendants.

 

Interest at the current commercial bank rate on the sum claimed in reliefs (A) from December 7, 2014 till date of final payment

 

Recovery of the sum of NINTEEN THOUSAND, SIX HUNDRED AND FIFTEEN GHANA CEDIS (GH 19,615) being plaintiff total share of the declared profits from February 2014 to November 2014

 

Interest on the declared profits in relief c from November 2014 till date of final payment.

 

The basis of the application is that the Applicant being dissatisfied with the judgment of the court, filed a Notice of Appeal on 22nd October, 2018 on the ground that the judgment is against the weight of evidence.

 

The applicant contends that the appeal is likely to succeed and unless execution is stayed, the appeal shall be rendered nugatory. Furthermore, applicant says greater hardship will be suffered by him if execution is not stayed.

 

The respondent is opposed to the application. The gravamen of his opposition is that the appeal is not likely to succeed and that the application is calculated to frustrate him from enjoying the fruits of his well-earned victory in the case. He also contends in his affidavit in opposition that a stay of execution will cause greater hardship to him than the defendant/applicant.

 

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) [1971] 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 Jebeilecase (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 . . .”

 

In Martins v Nicannar (1988) 2 NWLR 75, 83 the Supreme Court of Nigeria also listed the principles which should apply in the consideration whether or not to grant the stay of execution as follows:

 

“(a) The chances of the applicant on appeal. If the chances are virtually nil, then a stay may be refused; (b) The nature of the subject matter in dispute whether maintaining the status quo until a final determination of the appeal in the case will meet the Justice of the case; (c) Whether if the appeal, succeeds, the applicant will not be able to reap the benefit of the judgment on appeal; (d) Where the judgment is in respect of money and costs, whether there is a reasonable probability of recovering these back from the respondent if the appeal succeeds; (e) Poverty is not a special ground for granting a stay of execution except where the effect will be to deprive the appellant of the means of prosecuting his appeal.”

 

These principles are on all fours with the position of the Ghanaian law relating to 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. Most importantly, the victorious party should be able to be restored to the status quo ante in the event of a successful appeal.

 

In the instant case, the judgment of the court is in my humble opinion not manifestly illegal or wrong for any appellate court to presume that the appeal against the judgment and its consequential orders is correct or rightly made. From the applicant’s own ground of appeal, it is apparent that the appellate court has a duty to assess the evidence as a whole before making a determination. Thus, the likelihood of success of the instant appeal is not apparent on the face of the record to warrant the grant of stay of execution. It is also my considered opinion that in the event of the appeal succeeding the applicant can reasonably recover the money which was ordered to be paid to the respondent. Therefore, the appeal if successful will not be rendered nugatory. Granting the application will rather deprive the plaintiff/respondent from enjoying the fruits of his victory.

 

Having taken into account the competing rights of the parties to justice, I hold that grant of the application for stay of execution will occasion greater hardship against the plaintiff/respondent than the defendant/applicant. The applicant has not demonstrated any special circumstances to tilt the balance of justice in his favour.

 

For the foregoing reasons, the application fails and same is dismissed. There will be no order as to costs.

 

...