IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2019
KWADWO OPOKU & ANOTHER - (Plaintiff)
ERIC KOFI BOATENG - (Defendant)
DATE: 5TH APRIL, 2019
SUIT NO: OCC 80/2017
JUDGES: DR. RICHMOND OSEI-HWERE J
AKUA POKUAA KWARTENG FOR PLAINTIFF
AMA ASENSO FOR THE DEFENDANT
The defendant/judgment debtor/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 24th January, 2019.
By a writ of summons issued on the 30th May, 2017, the plaintiffs/judgment creditors/respondents (hereinafter referred to as the respondents) claimed against the defendant herein as follows:
a) Recovery of the land as well as the building thereon known as house No. Block 39, Plot 1, Ahodwo, Kumasi.
b) An order from this Honorable court directing the Defendant to render accounts on the said property.
c) General damages for the breach of the lease agreement of 18th August 1999.
d) Costs including lawyer’s fees.
The basis of the application is that the Applicant being dissatisfied with the judgment of the court, filed a Notice of Appeal on 4th of February, 2019 on the ground that the judgment is wrong.
The applicant contends that the appeal is likely to succeed and unless execution is stayed, the appeal shall be rendered nugatory, as the respondents are not in a position to refund the damages awarded against him. Furthermore, applicant says greater hardship will be suffered by him if execution is not stayed.
In moving the application counsel for the applicant submitted that there are fundamental issues of law to be decided on appeal. She submitted that the Notice of Appeal raises the question of whether damages can be properly awarded where the contract has been found to be unenforceable. She cited the case of Dzobo v Agbleblewu 1991 1GLR 294 holding 1 and Joseph v Jebeile (1963) 1 GLR 387, SC among other authorities and invited the court to grant the application.
The respondents are opposed to the application. The gravamen of their opposition is that the appeal is not likely to succeed and that the application is calculated to frustrate them from enjoying the fruits of his well-earned victory in the case. They also contend in their affidavit in opposition that a stay of execution will cause greater hardship to them than the defendant/applicant.
In his oral response to the application, counsel for the respondents submitted that the grounds of appeal as contained in the Notice of Appeal contain blatant misrepresentations of the holding and pronouncement of the court in its judgment. Counsel submitted further that the grounds of appeal are so faulty that the appeal can best be described as dead on arrival. Counsel made reference to portions of the judgment and pointed out the alleged misrepresentations projected by the grounds of appeal. He also submitted that it is rather the respondents who will suffer greater hardship if the execution of the judgment is stayed. Counsel invited the court to dismiss the application.
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 . . .”
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. The grounds of appeal as contained in the notice of appeal are as follows:
a. Having held that the contract between the parties was unenforceable the Honourable Court erred in holding that the Defendant/Appellant was in breach of same.
b. The Honourable Court erred in awarding damages against the Defendant/Appellant when it had made an order abrogating the contract thereby occasioning a substantial miscarriage of justice to the Defendant/Appellant.
c. Additional grounds may be filed upon receipt of a certified copy of the judgment.
The likelihood of success of an appeal can be inferred from the grounds of appeal contained in the notice of appeal. In the instant case, it is difficult for the court to ignore the obvious misrepresentation contained in the grounds of appeal. The court never held that the entire contract was unenforceable. The court only declared that paragraph 4 of the contract which required the defendant/applicant herein to send two members of plaintiffs’ family abroad as unenforceable. The court pronounced that the defendant was in breach of paragraph 3 of the contract which required the defendant to complete the project within two years. As aptly demonstrated by counsel for the respondent, the grounds of appeal are completely at odds with the judgment of the court. The right to appeal is guaranteed under our law. This right must, however, be exercised with due regard to the ratio decidendi of the judgment of the court. In the light of the misrepresentation, it is apparent that the applicant’s appeal does not disclose issues of law that are worth considering. 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.
Beside the bare assertion by the applicant that in the event of the appeal succeeding he cannot reasonably recover the money which was ordered to be paid to the respondent, no affidavit evident was presented in support of this assertion. It is my considered opinion that in the unlikely event of the appeal succeeding, same the will not be rendered nugatory. Granting the application will rather deprive the respondents 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 respondents than the 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.