NORTHERN REGIONAL DEVELOPMENT CORPORATION vs. HARUA [1988]DLHC649

Date	1988-10-25
Suit No.
Citation No.	[1988]DLHC649

BENIN J.

T. CODJOE FOR THE APPLICANTS.

M. MUMUNI FOR THE RESPONDENT.

[1988]DLHC649
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													<main id="main" class="content" style="min-height: 60rem" >NORTHERN REGIONAL DEVELOPMENT CORPORATION <o:p></o:p>vs. <o:p></o:p>HARUA<o:p></o:p>[HIGH COURT, TAMALE] <o:p></o:p>[1989-90] 2 GLR 340<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
25
OCTOBER 1988<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">

T. CODJOE FOR THE APPLICANTS.<o:p></o:p>

M. MUMUNI FOR 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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BENIN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BENIN J.<o:p></o:p>This is
an application for a stay of execution of the judgment of the District Court
Grade I, Tamale (hereinafter called the court below) dated 9 August 1988. The
respondent herein, a former employee of the applicant-corporation, sued the
applicants in the court below claiming from them the sum of ¢150,000 being
terminal benefits and arrears of salary due him. Judgment went in favour of the
respondent. The applicants filed a notice of appeal, and then put in an
application for a stay of execution at the lower court which was dismissed
after a hearing on 30 August 1988. The applicants filed a notice of appeal
against the lower court’s ruling dismissing the application for a stay of
execution. Counsel for the applicants thereafter filed the present application
for a stay of execution in this court. Counsel for the respondent drew
attention to the pendency of the appeal against the lower court’s ruling on a
similar application. Counsel for the applicants apparently conceded that it was
an error in filing the appeal against the lower court’s ruling. However since
that appeal is still pending I think I am enjoined to dispose of it in this
ruling. Under the provisions of the High Court (Civil Procedure) (Amendment)
Rules, 1975 (L.I. 1001), an application to the High Court for a stay of
execution following a rejection of an earlier application by a district court
is a fresh application as of right, and not an appeal: see also Republic v.
Committee of Inquiry (R. T. Briscoe (Ghana) Ltd.); Ex parte R. T. Briscoe
(Ghana) Ltd. [1976] 1 G.L.R. 166, C.A. holding (1). There was thus no right of
appeal against the order by a lower court refusing an application to stay
execution. In this respect the notice of appeal was a nullity and I hereby set
it aside accordingly.<o:p></o:p><o:p>&nbsp;</o:p>Ordinarily,
an application for a stay of execution should pose no problems because in the
final analysis, it can be granted on such terms as may do justice to the
parties having regard to the circumstances of the application as explained in
Joseph v. Jebeile [1963] 1 G.L.R. 387 at 390, S.C. But like in all cases, the
application must first be competent before the court in order to invoke the
court’s jurisdiction. When can a stay of execution be applied for? I posed this
question because of the respondent’s counsel’s argument based on paragraph 5 of
the affidavit in opposition that “the appellant-applicant has failed, refused
or neglected to satisfy the conditions of appeal that are imposed on him by
law.” Counsel referred to section 19 (6) of the Courts Act, 1971 (Act 372) and
Order 58, r. 5 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) in
support of his argument that since the applicants have failed to fulfil the
conditions of appeal they are not properly before this court, and thus the
application is totally frivolous and vexatious. On this very point counsel for
the applicants submitted that it was the duty of the registrar to write to the
appellants to come for the settlement of the record. Order 58, r. 5 L.N. 140A
reads:<o:p></o:p>&nbsp;“(5) The appellant shall within seven days
after filing notice of appeal deposit in the Court below the sum of £10 to
cover the expense of making up and forwarding the record of appeal, and shall
also deposit the sum of £15 or give security therefor by bond with one or more
sureties to the satisfaction of the Court below for the due prosecution of the
appeal and for the payment of any costs which may be ordered to be paid by the
appellant. Such bond shall be in Form No. 61 of Appendix B.” Section 19 (6) of
Act 372 reads: “The High C ourt shall not entertain any appeal unless the
appellant has fulfilled all conditions imposed in that behalf by Rules of
Court.”<o:p></o:p><o:p>&nbsp;</o:p>I think
section 19 (6) of Act 372 deals with the substantive appeal itself. By Order
58, r. 7 as amended by L.I. 1001, r. 2 an appeal does not operate as a stay of
execution. It follows then that the successful party can still go into
execution even if there is an appeal notice filed and conditions of appeal fulfilled.
For that reason it seems to me that fulfilling conditions of appeal as required
by Act 372, s. 19 (6) will not be a condition precedent to an application to
stay execution. That is so because, unless otherwise directed by the court, a
judgment takes immediate effect upon delivery; so that before a losing party
may have an opportunity to file his notice of appeal and fulfil the conditions
of appeal, the successful party can move into execution in the interim. These
factors of a judgment taking immediate effect and an appeal not operating as a
stay of execution should enable the losing party to apply for a stay of
execution as soon as he files his notice of appeal. I do not therefore accept
the respondent counsel’s contention on this point. At the same time I think
counsel for the applicants’ contention that the registrar should summon the
parties to settle the record which seemed to equate this with fulfilling the
conditions of appeal was erroneous. The fulfilment of the conditions of appeal
is the prime responsibility of the appellant after which the registrar will be
enjoined to prepare the record of appeal under Order 58, r. 6. So that the
appellant not having fulfilled the conditions of appeal imposed on him by rule
5, the preparation of the record will not take place, let alone a settlement of
the record.<o:p></o:p><spa</main>