[2018]DLSC173 • July 18, 2018 • Supreme Court •
RIASAND VENTURES LIMITED vs. REGISTRAR OF COMPANIES, NOBLE GOLD BIBIANI LIMITED
In September 2013, the respondent instituted a High Court action against the applicant for recovery of US$1,105,902.30. The applicant failed to defend, resulting in summary judgment against it. The respondent petitioned for the applicant's winding up under the Bodies Corporate Official Liquidation Act, 1963 (Act 189). The High Court granted the winding up order but stayed execution temporarily. The applicant sought to stay execution and set aside the winding up order, arguing that a scheme of arrangement approved by the Commercial Court and binding on all creditors, including the respondent, took precedence over the winding up order. The High Court dismissed the application but extended the winding up execution date. The applicant appealed to the Court of Appeal, which granted an unconditional stay of execution. The respondent appealed to the Supreme Court, which dismissed the interlocutory appeal against the stay. Subsequently, the Court of Appeal ruled in favor of the respondent, ordering the applicant to pay the judgment debt or be wound up. The applicant appealed to the Supreme Court and applied for a stay of execution pending appeal, which was refused by the Court of Appeal. The applicant then filed a repeat application to the Supreme Court for a stay of execution pending appeal.
read moreRULING APPAU, JSC:- Before us is a motion for stay of execution of the decision/order of the Court of Appeal dated 7th December 2017 pending an appeal against that decision/order. Though it is a repeat application after a similar one had been refused by the Court of Appeal, it is not regarded as an appeal against the decision of the Court of Appeal as held by this Court in JOSEPH v JEBEILE & Another [1963] 1 GLR 387. It is, in fact, a fresh application altogether and we are supposed to exercise our discretion unmindful of the reasons grounding the refusal by the Court of Appeal. Our paramount consideration is whether there are exceptional circumstances to warrant the grant. In so doing, however, we must avoid the temptation of prejudicing the appeal by going into the merits of the substantive matter, which is yet to be gone into and for which the application has been made. As we have consistently held in several cases dating back to the Joseph v Jebeile case (supra), it is the...