BANNERMAN AND OTHERS vs. FRETETE ODOMANKOMA JEWELLERY LTD. [1987]DLCA720

Date	1987-07-29
Suit No.
Citation No.	[1987]DLCA720

ABBAN JA

WUAKU JA

AMUA-SEKYI J.A.

KWAKU BAAH FOR THE APPLICANTS.

PROFESSOR KUMA FOR THE RESPONDENTS.

[1987]DLCA720
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													<main id="main" class="content" style="min-height: 60rem" >BANNERMAN AND OTHERS <o:p></o:p>vs. <o:p></o:p>FRETETE ODOMANKOMA JEWELLERY LTD. <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 1 GLR 494<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE
29 JULY 1987<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;
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KWAKU BAAH FOR THE APPLICANTS. <o:p></o:p>

PROFESSOR KUMA FOR THE RESPONDENTS.<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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ABBAN, WUAKU AND AMUA-SEKYI JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMUA-SEKYI J.A.<o:p></o:p>Amua-Sekyi
J.A. delivered the judgment of the court. On 6 May 1987 the High Court, Accra
presided over by Ampiah J.A., entered judgment for the plaintiffs in the sum of
¢33,200,000 damages and ¢30,000 costs. A claim for specific performance of an
agreement to grant a sublease was refused. Of the damages, ¢3,200,000 appears
to have been awarded as special damages and ¢30,000,000 as general damages. The
defendants dispute that the plaintiffs are entitled to either of these sums and
have exercised their right of appeal. The question now is whether execution of
the judgment ought to be stayed pending the hearing.<o:p></o:p><o:p>&nbsp;</o:p>When the
defendants applied to Ampiah J.A. he stayed execution of the costs but ordered
that the defendants pay ¢10,000,000 out of the damages to the plaintiffs within
two weeks or have the premises locked up pending the hearing of the appeal.
When after two weeks the said sum of ¢10,000,000 had not been paid, he made a
fresh order, this time staying execution of the whole of the damages but
ordering that the costs be paid. He also made a peremptory order that the
premises in which the third-named defendants carry on their business be locked
up.<o:p></o:p><o:p>&nbsp;</o:p>Now, rule
28 of the Court of Appeal Rules, 1962 (L.I. 218) permits an appellant whose
application for a stay of execution has been refused by the High Court to
repeat his application in this court. In the first order made on 26 June 1987
Ampiah J.A. refused to stay execution as to ¢10,000,000 of the damages. In the
second order made on 10 July 1987 he rescinded the earlier order refusing a
stay of execution of part of the damages as well as that staying execution of
the costs. Mr. Kweku Baah, counsel for the defendants, does not complain of the
order staying execution of the whole of the damages, but insists that the order
for locking up of the premises was not a proper exercise of discretion and
amounted to refusal of a stay.<o:p></o:p><o:p>&nbsp;</o:p>It will
be recalled that by his judgment the learned judge had refused to put the
plaintiffs back in possession of the premises. The huge sum awarded as damages
was meant to compensate them for such losses as they may have sustained. Thus,
it is clear that even if the appeal fails the plaintiffs cannot, under the
judgment, move back into the premises. The order thus takes on the character of
a punitive measure imposed on the defendants because of their refusal or
inability to pay the ¢10,000,000 which they were ordered to pay.<o:p></o:p><o:p>&nbsp;</o:p>We do not
think that it is the province of a court to punish a defendant for not
complying with an order to pay damages. All that a court can properly do is to
order that in default of the defendant paying the amount the plaintiff is at
liberty to enforce the order by process of execution. The order that the
defendants in this case close down their business is not a mode of execution
but an injunction leading to the bankruptcy of the defendants as, according to
the judgment, happened to the plaintiffs when they were dispossessed.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants having brought the matter before us, it is our duty to take a fresh
look at the situation of the parties and make an order which will best advance
the cause of justice. Reading the judgment it is impossible to discern the
basis of the award of the colossal sum of ¢30,000,000 as damages. In our
opinion, the appeal against that award has a reasonable chance of success and
execution ought to be stayed unconditionally on that sum. The award of
¢3,200,000 as special damages appears to be based on documents tendered in
evidence before the court; but the defendants dispute liability as to
¢3,000,000 on the ground that they have taken over the interest of the party
who was alleged to have expended that sum to improve the premises. This
allegation which will be found in paragraph 42 of the affidavit of Magrini filed
on 15 July 1987 was not answered by the plaintiffs.<o:p></o:p>