IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
MRS. AMA OWUSUAA AGYEMANG - (Plaintiff)
BLOWPLAST INDUSTRIES LIMITED - (Defendant)
DATE: 27 TH FEBRUARY, 2018
SUIT NO: OCC. 102/2015
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
GEORGE ESHUN AMISSAH FOR THE DEFENDANT/APPLICANT
WILLIAM OSEI KUFFOUR FOR THE PLAINTIFF/RESPONDENT
The applicant herein “Blowplast Industries Limited” filed this application by motion on notice for stay of execution of the judgment delivered by this court against the defendant/applicant on 26/10/2017. By a writ of summons issued on the 15 January 2015, the plaintiff/respondent herein claimed against the defendant/applicant herein as follows:
a. An order that defendant do forthwith deliver up to plaintiff three hundred (300) blowstar packs or its current price.
b. An order that defendant do forthwith deliver up to Plaintiff twenty-three (23) blowstar packs or its current price resulting from reduction of unit price of blowstar pack from sixty-eight (68) GH cedis to sixty-five (65) GH cedis.
c. An order for the recovery of the amount of eight thousand GH cedis (GHC 8,000.00) being lost profit from the sale of the balance of the 323 blowstar packs undelivered by the defendant plus interest of 35.0% from August 2014 to date of final payment.
d. General and Special Damages for breach of contract.
The basis of the application is that the Applicant being dissatisfied with the judgment of the court, filed a Notice of Appeal on 15th December, 2017 setting down the grounds of appeal as follows:
The judgment is against the weight of evidence; and
The learned judge erred in holding the Defendant is liable to the Plaintiff for non-delivery to Plaintiff in Kumasi of goods ordered by the Plaintiff when the Defendant’s responsibility under the contract ended upon delivery of the goods at the Defendant’s factory to the Plaintiff.
The applicant contends that the appeal raises substantive questions of law and fact and unless execution is stayed, the appeal shall be rendered a nugatory. Furthermore, applicant submits that substantial loss or great injustice will be suffered by it if execution is not stayed.
The respondent is opposed to the application. The gravamen of her opposition is that the appeal is not likely to succeed and that the application is calculated to frustrate her from enjoying the fruits of her well-earned victory in the case. She also contends in her affidavit in opposition that a stay of execution will cause her greater hardship 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)  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 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.
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. The current rule is in sharp contrast to the view expressed in Joseph v Jebeile 1 G.L.R. 387 at p. 390, S.C. that in considering an application for a stay of execution it is wholly immaterial what view the trial judge takes of the correctness of his own judgment.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 clear that should the appeal succeed, the applicant will be able to reap the benefit of the judgment of the appeal. The judgment involves the payment of money and the applicant can take steps against the respondent to recover the sum if the appeal succeeds. After all, from the record, the respondent is a businesswoman with a going concern and is more than capable of refunding the moneys involved if it becomes necessary for her to do so. Therefore, the appeal if successful will not be rendered nugatory. Granting the application will rather deprive the plaintiff/respondent from enjoying the fruits of her 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 its favour. From the foregoing reasons, I dismiss the application. Each party shall bear its own costs.