STANDARD BANK OF WEST AFRICA LTD. vs. BOAITEY [1971]DLHC2166

Date	1971-06-28
Suit No.
Citation No.	[1971]DLHC2166

TAYLOR J.

L. B. AKAINYAH FOR THE APPLICANTS.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1971]DLHC2166
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													<main id="main" class="content" style="min-height: 60rem" >STANDARD BANK OF WEST AFRICA LTD.<o:p></o:p>&nbsp;vs. <o:p></o:p>BOAITEY<o:p></o:p>&nbsp;[HIGH COURT, KUMASI]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 2 GLR 308<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
28 JUNE 1971.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

L. B. AKAINYAH FOR THE APPLICANTS.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>This is a
motion on notice by the plaintiff-respondent-applicants hereinafter referred to
simply as applicants praying for an order of this court that an appeal filed by
the defendant-appellant-respondent referred to herein as respondent, should not
be made to operate as a stay of execution. In order to understand the reason
for the application and to be in a position to decide whether it is desirable to
grant or refuse it, it is in my view necessary to advert to the facts and
history of the case as well as the nature of the decision against which the
appeal is lodged. On 16 September 1970 the applicants sued the respondent
claiming a sum of money and interest representing overdraft facilities which
the applicants granted to the respondent for one month and which sum of money
payable at the end of November 1969, the respondent had neglected to pay. On 10
November 1970 judgment by consent was given in this court in favour of the
applicants for the sum claimed, namely, N¢8,878.45 with interest at ten per
cent. per annum from 12 September 1970 to 10 November 1970 calculated by
consent to be N¢183. 55 with N¢500. 00 costs.<o:p></o:p><o:p>&nbsp;</o:p>On 29
March 1971 the respondent, the judgment debtor, moved this court for a stay of
execution under the judgment and for payment of the judgment debt and costs by
instalment. I doubt whether there is jurisdiction to entertain the application
as will appear hereinafter in this ruling. The matter however was never raised
and I dealt with the application with indulgence and proceeded on the
assumption that there was jurisdiction. In paragraph (13) of the affidavit in
support of the motion the respondent herein in suggesting his own mode of payment
deposed as follows: “That to show my good faith I am prepared to make a down
payment of two thousand new cedis (N¢2,000.00) and promise to pay the balance
by monthly instalment of five hundred new cedis (N¢500. 00).” He deposed
further in paragraph (11) of the said affidavit that the judgment creditor, the
applicants herein, were threatening to sell his hotel which cost him
N¢300,000.00 to build. On 29 March 1971 when the motion was called Mr. Berko at
that time the counsel for the respondent herein asked for adjournment to 31
March 1971 to advise the respondent to make the down payment of N¢2,000.00
which by his affidavit he had deposed he was prepared to pay, but on the said
adjourned date neither the respondent nor his counsel appeared in court and the
application was as a result struck out for want of prosecution with N¢30.00
costs awarded against the respondent.<o:p></o:p><o:p>&nbsp;</o:p>On 19
April 1971 the respondent applied to this court to relist his motion for stay
which had been struck out. He was not represented by counsel but his
application was granted subject to his paying costs of N¢15.00 and the case was
relisted for hearing on 3 May 1971. On 3 March 1971 the respondent applied for
an adjournment to brief another counsel as his counsel would seem to have
deserted him; the adjournment was duly granted again subject to N¢10.00 costs
against him. The case was accordingly adjourned again to 10 May 1971.<o:p></o:p><o:p>&nbsp;</o:p>On the
adjourned date, 10 May 1971, the respondent was represented by another counsel
Mr. Mmieh who asked for a further adjournment to study the case on the ground
that he had just received the papers. The respondent had this further
indulgence and the case was duly adjourned to 17 May 1971 and he was as usual
mulcted in costs, this time N¢10.00.<o:p></o:p><o:p>&nbsp;</o:p>On 17 May
1971 the respondent by his counsel finally moved the court. Although he had
deposed that he was prepared to pay N¢2,000. 00 as aforesaid and his for</main>