i. Introduction:

[1] This is an application by Plaintiff/Applicant herein praying that the execution of the Ruling of this Court dated December 3, 2018 be stayed pending the determination of the appeal filed at the Court of Appeal. 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’s consideration and thus has a very bright chance of success.

[2] The grounds upon which the instant application is premised are catalogued in the 15 paragraphs supporting affidavit sworn to by Titus Annor Tei accompanying the application paper. The thrust of the Plaintiff/Applicant’s case is that the effect of the ruling is that the Applicant is prevented from operating the account of the Company and therefore the very existence of the Plaintiff/Company is threatened. Further, the Applicant contends that if the ruling of this court, which is under a legal challenge is not suspended and the appeal succeeds it will be rendered nugatory and the loss the Plaintiff/Applicant would suffer cannot be compensated for in damages.

ii. Arguments in Support of Application:

[3] Arguing in support of the application, learned Counsel for the Plaintiff/ Applicant, Mr. Andrew Ghartey referred to the averments in the affidavit in support and reiterated that the Applicant has made out a case for the grant of the application. Counsel referred to paragraph 3 of the affidavit in opposition and submitted that in the view of the Plaintiffs, it is couched in a manner of preliminary objection as to the appropriateness of the application. To learned Counsel the opposition is unfounded. Making reference to the reliefs endorsed on the writ of summons and specifically the orders the Applicant prayed for in the injunction application, Counsel submitted that this Court’s order has prevented the Plaintiff from operating and therefore it should be stayed.

[4] According to counsel, the Respondent’s objection is unfounded because the Court’s order of December 3, 2018 is executable. Counsel submitted that the order is executable because a refusal to obey same would subject the Plaintiff through its Officers liable for contempt of court which is an executory step. Counsel also said a writ of sequestration is another mode of execution the Respondents can resort to should the Applicant fail to comply with the ruling. Learned Counsel relied on the following cases of MENSAH v. GHANA FOOTBAL ASSOCIATION AND OTHERS [1989-90] 1 GLR 1 and N.B. LANDMARK LTD v. LAKIANI [2001-2002] SCGLR 318 for the submission. Based on all of the above Counsel prayed for an order staying the execution of this court’s ruling of December 3, 2018.

iii. Arguments in Opposition:

[5] In opposing the application, learned counsel for the 1st to 7th Defendants/ Respondents, Mr. Hope Aboado submitted that the application was incompetent because the impugned ruling of the Court has no executable order to be stayed. Counsel submitted that the 1st to 7th Respondents rely on the 5 paragraph affidavit in opposition filed on January 14, 2019 and submitted that prior to the initiation of the action, it was the 1st Defendant who was operating the account and therefore he is the one who is to suffer from the Court’s ruling and not the Plaintiffs.

[6] According to counsel, the appeal has no chance of success because same is unmeritorious and frivolous. Counsel also cited the case of N.B. LANDMARK LTD v. LAKIANI SUPRA and 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:

[7] 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 [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.

[8] These principles must be applied to the instant application. 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?

[9] 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 judiciously by balancing the competing legal rights of the parties in the application.

[10] 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 can be made in respect of an executable judgment of a court.

[11] I note that Counsel for the Applicant relied mainly on the case of MENSAH v. GHANA FOOTBAL ASSOCIATION SUPRA to submit that the order made is executable. In the respectful opinion of the Court and with the utmost deference to Counsel I think he has misconstrued the reasoning of the apex Court based on the facts of that case. It is therefore pertinent to state the brief facts and the decision of the Court to show how the Applicant’s reliance on the case is without basis. The facts of the case is as follows:

“The Plaintiff, Mr. Kojo Mensah obtained judgment in the High Court, Cape Coast against the Ghana Football Authority (G.F.A.) and two others for, inter alia, (i) Declaration that Accra Standfast Football Club (Standfast) were not qualified to play in the First Division of the 1988-89 National Football League and that Cape Coast Vipers Football Club a.k.a. Venomous Vipers were instead qualified to play; (ii) an injunction restraining the G.F.A. and the National Sports Council (N.S.C.) from proceeding with the league without the participation of Vipers; and (iii) an injunction restraining Standfast from participating in the league. The Defendants filed an appeal against the judgment to the Court of Appeal. Subsequently they applied to the High Court for stay of execution pending the final determination of the appeal but two days later the National League was suspended indefinitely. The High Court refused the application principally on the ground that the judgment was not executable. The Defendant’s then repeated the application before the Court of Appeal and same was granted on the ground that the Defendant's appeal was likely to succeed. The Plaintiff then appealed to the Supreme Court.

The Supreme Court in deciding the appeal posed the question as to “whether the judgment is non-executable”

The Supreme Court answered the question that “the judgment” was executable. It reasoned as follows:

“The situation is, in our view, similar to a judgment decreeing title to land in favour of a party and granting him an order of perpetual injunction for the protection of his rights. Such a judgment is executable in the sense that any breach of the order renders the person liable to attachment for contempt. In this case, if the Defendants had, at any time before a stay was granted, continued the league with the participation of Standfast, and without the participation of Vipers, the Defendants, the National Sports Council, Standfast, their officials or all or some or any of them would undoubtedly have been brought before the court to be dealt with for contempt. Indeed, the record shows that when before the trial, the Plaintiff obtained an interim order which was apparently flouted, the learned judge, on the application of the plaintiff, ordered the arrest of the chairman and the executive secretary of the Defendant association and the Chief Executive and the chief administrative officer of the National Sports Council. We think therefore that the Defendants were within their rights when they applied for a stay of execution of the judgment”.

The Court further stated that:

“We have found it necessary to deal with the question whether the judgment was one which was executable because we agree that if it was not then no order staying execution could properly have been made and the appeal must succeed. Having come to the conclusion that it was executable we now have to consider the merits of the appeal against the decision of the Court of Appeal granting a stay” [Emphasis Mine].

[12] In my respectful opinion the facts and ruling in the Mensah v GFA supra can be distinguished from the case at bar. First and foremost there is no judgment/order made in favour of the Plaintiff/Applicant by which the instant application is to protect. To reiterate, the Applicant’s prayer for injunction against the Defendants was dismissed. To that extent in my humble opinion the arguments anchored on the Mensah decision is out of place and not well situated.

[13] What then was the ruling and/or the order made by this Court which, the Applicant is praying the Court to stay? The concluding part of the ruling is contained in paragraph 60 and it is as follows:

“…Duly informed and fortified by Order 25 rule 1 (1), I believe the circumstances dictate and enjoin that the rights and privileges of the parties, be controlled, regulated or otherwise limited, in a way, pending the final trial and determination of the substantive action. Accordingly, I order that, pending the final trial and determination of this suit, and starting from today, both parties being the Plaintiff and 1st to 7th Respondents are hereby restrained from making orders to 8th and 9th Respondents to release funds to them”

[14] In my respectful opinion there is nothing in the above statement/order that is executable. Even if I am to accede to the arguments of the Applicant - the non-compliance of the order would be “making orders to the 8th and 9th” Defendants to release funds. To my mind based on my ruling the 8th and 9th Defendants would have every right to refuse and the Plaintiff/Applicant shall have no legal right against them.

[15] In N.B. LANDMARK LTD v. LAKIANI SUPRA which both Counsel relied on, 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”.

[16] Further, the Supreme Court put the matter beyond per adventure in the case of APPIAH v PASTOR LARYEA-ADJEI (2007-2008) SCGLR 863. 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.

[17] It is plain from the above exposition of the law that a party against whom an order is made and who seeks to stay same ought to first establish that the said order is executable.

[18] It ought to be emphasized that it was the Plaintiff/Applicant’s application for injunction against all the Defendants and the 1st to 7th Defendants application against the 8th and 9th Defendants which were refused by the Court. The substantive matter is still pending and as stated above, the Plaintiff/Applicant has filed an appeal challenging the ruling. In the opinion of the court and with respect to Counsel, from a plain reading of the concluding part quoted above there is nothing contained in that ruling which is executable by any known execution process of the law as provided for under Order 43 of CI 47, The High Court Civil Procedure Rules, 2004.

[19] 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:

[20] In my respectful opinion allowing the instant application would amount to allowing the Applicant to re-argue the application for injunction the court dismissed on December 3, 2018. There is certainly no legal basis for that.

[21] 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 a stay of execution