SALIFU vs. MAHAMA AND OTHER [1988]DLHC680

Date	1988-11-25
Suit No.
Citation No.	[1988]DLHC680

BENIN J.

AMOAH FOR OSEI-BONSU FOR THE DEFENDANT-APPLICANT.

DOMALAE FOR THE PLAINTIFF-RESPONDENTS.

[1988]DLHC680
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													<main id="main" class="content" style="min-height: 60rem" >SALIFU <o:p></o:p>vs. <o:p></o:p>MAHAMA AND OTHER<o:p></o:p>[HIGH COURT, TAMALE] <o:p></o:p>[1980] GLR 431<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:
25
NOVEMBER 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">

AMOAH FOR OSEI-BONSU FOR THE DEFENDANT-APPLICANT.<o:p></o:p>

DOMALAE FOR THE PLAINTIFF-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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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 pending appeal. The original suit was
instituted by the plaintiff-respondents herein to recover from the
defendant-applicant herein damages in a running down action. Judgment was
entered for the respondents to recover various sums of money from the applicant
on 26 August 1988. An appeal has since been lodged against the said judgment.
Subsequently, this application was put in by the applicant to stay execution
pending the appeal. The grounds for the application are stated in the relevant
portions of the affidavit in support as follows:<o:p></o:p>“9. That
I am advised by counsel and verily believe the same to be true that the appeal
has a very good chance of success and the judgment itself will be reversed by
the Court of Appeal or the damages and costs will be reduced considerably . . .
12. The plaintiffs who have no visible means will not be able to refund the
amounts should the appeal succeed. 13. That if execution . . . is not stayed at
this stage and the appeal succeeds hardship will be greater on me because the
plaintiff respondents will not be able to refund to me any difference that will
arise as a result of the reduction of the damages and costs.”<o:p></o:p><o:p>&nbsp;</o:p>Naturally
the respondents filed an affidavit in opposition challenging the averments
contained in the applicant’s affidavit. They denied they were men of straw.<o:p></o:p><o:p>&nbsp;</o:p>I think
in dealing with an application of this nature, it is no part of the trial
court’s duty to delve into the merits of the appeal which is the province of
the appellate court. But this does not also preclude the trial court from
considering the possibility of the appeal succeeding if it is urged upon it as
one of the principal grounds for the application. The three main grounds of
appeal listed included the omnibus one “the judgment is against the weight of
the evidence.” I need not comment on this ground too deeply; suffice it to
mention that when the defendant only came to court and admitted the plaintiff’s
claim, I believe it could not be said the court failed to attach weight to his admission
by the very person who offered no contrary evidence. If on the other hand the
applicant is saying the court placed too much reliance on or attached too much
weight to the plaintiffs’ story, I think that will be an unjustified and
unlawful assertion having regard to the fact that it was the only available and
unrebutted evidence.<o:p></o:p><o:p>&nbsp;</o:p>The next
ground of appeal is that the trial was contrary to the principles of natural
justice, fair-play and equity. By this I understood the applicant to be saying
he was not given the opportunity of being heard, or of being heard fairly and
adequately in defence or both. The actual hearing of this case commenced before
my brother Sarpong J. in the presence of all the parties to this case. That
time, as at the time I concluded the hearing, the defence counsel did not turn
up though the defendant made it clear he was aware of the hearing date. And on
both occasions the defendant indicated the hearing could go on in the absence
of his counsel. One would have thought that counsel would, after going through
the record of proceedings, honourably refrain from a charge of breach of the
rules of natural justice, and go on to withdraw this ground. But rather
surprisingly and I believe, in a most unprofessional manner, counsel whose absence
from court could raise a charge of contempt and/or discourtesy against him (see
Omaboe v. Kwame [1978] G.L.R. 122, at 125, C.A. per Apaloo C.J. who delivered
the judgment of the court) argued that the applicant did not appreciate the
court’s explanation to him. I believe that much as counsel has the right to
make submissions in court, such submissions must seriously aim at improving the
law and advancing the course of justice, lest it should be said that the
practitioners of the law do not appreciate their rather heavy and burdensome
responsibility. I can only wish counsel was not making this submission with any
seriousness. I will therefore reject it with all the contempt it deserves.<o:p></o:p><o:p>&nbsp;</o:p>