GHANA COMMERCIAL BANK LTD. vs. LA PALM BEACH HOTEL [2005]DLCA6461

Date	2005-12-16
Suit No.	CIVIL APPEAL NO.: A.D. 2005.
Citation No.	[2005]DLCA6461

OWUSU J.A. [PRESIDING]

KANYOKE J.A.

KUSI APPIAH J.A.

MR. KIZITO BEYUO WITH HIM MR. AMENUVOR FOR THE DEFENDANT/APPELLANT/APPLICANT

MR. QUARSHIE IDUN WITH HIM E.O. ARMAH FOR THE PLAINTIFF/RESPONDENT

[2005]DLCA6461
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													<main id="main" class="content" style="min-height: 60rem" >GHANA COMMERCIAL BANK LTD.<o:p></o:p>vs.<o:p></o:p>LA PALM BEACH HOTEL<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO.: A.D. 2005.&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;DATE:
16TH DECEMBER, 2005<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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COUNSEL: <o:p></o:p>

MR.
KIZITO BEYUO WITH HIM, MR. AMENUVOR FOR THE DEFENDANT/APPELLANT/APPLICANT.<o:p></o:p>

&nbsp;MR. QUARSHIE IDUN WITH HIM E.O. ARMAH FOR THE
PLAINTIFF/RESPONDENT<o:p></o:p>

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CORAM:&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;&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;&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;OWUSU
J.A. [PRESIDING], KANYOKE J.A., KUSI APPIAH J.A.<o:p></o:p>

</div>OWUSU,
J.A.<o:p></o:p>&nbsp;This is an application for stay of execution
pending appeal against the Judgment of His Lordship G.A. Aryeetey sitting at an
Accra Fast Track High Court, and delivered on 28th day of June, 2005.<o:p></o:p>&nbsp;The Judgment is attached to the application
and marked "P.OK 4". <o:p></o:p>For paragraph 15 of the
affidavit in support of the application, the High court on 12/9/2005 dismissed
a similar application for stay of execution pending appeal. <o:p></o:p>The present application is
therefore a repetition of the one dismissed in the court below.<o:p></o:p>&nbsp;Moving the application, counsel relied on the
averments contained in the affidavit in support of the motion. Counsel argued
that for stated reasons, the Defendant's Company is not liable for the sum
claimed by the plaintiff bank. In sum, it was counsel's contention that the
Judgment of the court below cannot be supported by the evidence on record and
dissatisfied with the Judgment therefore, the Defendant has appealed against
same. Attached to the application is a copy of the Notice of Appeal marked
"P.OK.5".<o:p></o:p>&nbsp;Relying on the case of JOSEPH vrs. JEBELEE
&amp; ANOR [1963] 1 GLR 387 Counsel submitted that the Defendant will suffer
untold hardship if the application is not granted in that the defendant will
have to look for money to satisfy the Judgment debt only for the money to be
refunded in the event of the appeal succeeding.<o:p></o:p>&nbsp;In reply, learned counsel for the plaintiff
argued that at this stage, the court is not so much concerned with the merits
of the appeal. He all the same submitted that the appeal does not stand any
chance of success. That in the unlikely event of the appeal succeeding, the
plaintiff will ever be ready to refund the Judgment debt. Further, that the
Defendant has failed to satisfy the court that the Respondent will not be able
to refund the Judgment debt, if the application is not granted. Indeed, it was
his submission that no such suggestion was even made to the court.<o:p></o:p>&nbsp;In this application, the main point canvassed
by counsel for the Applicant is the hardship that the Judgment/debtor will
suffer if compelled to pay the Judgment debt in the event of the application
being dismissed.<o:p></o:p>&nbsp;Indeed counsel made no suggestion either specifically
or impliedly, that the plaintiff Bank will not be in a position to refund the
Judgment debt if same is paid on refusal of the application and in the event of
the appeal succeeding. He could not have the urgedsic to make any such
suggestion having in mind who the Judgment Creditor is.<o:p></o:p>&nbsp;A successful party could not be deprived of
the fruits of his judgment unless it could be satisfactorily shown that if a
stay was not granted, it would create an irreparable injury. The courts in
exercise of their absolute and fettered discretion to grant or refuse an
application for a stay would therefore only grant a stay if there were
special circumstances which had been deposed to in an affidavit.
................. [the emphasis is mine] <o:p></o:p>See the case of DEATEC LTD
vrs. PENTON HOCK FARM LTD &amp; ORS. [1987—88] GLR. 1.<o:p></o:p>&nbsp;In the instant application the main point
canvassed by the applicant for praying for the exercise of the court's
discretion in favour of a grant of an order staying execution is that “if the
application is not granted the plaintiff may levy execution against the
Defendant's assets and thereby disrupt the defendant's business of providing
hotel accommodation to the large number of tourists and other visitors to
Ghana. This will cause untold financial hardship to the Defendant.”<o:p></o:p>&nbsp;Talking of hardship, I am of the view that the
court has a duty to weigh the hardship that will be occasioned to each party in
the event of a grant or refusal of the application.<o:p></o:p>&nbsp;The plaintiff bank is a commercial
Institution. The loan was granted to the Defendant in 1997 and was to be
re-paid over a period of three years.<o:p></o:p>&nbsp;As at 1st June 2000, the Defendant's
indebtedness to the plaintiff was by a Memorandum of understanding between the
parties, converted into United States Dollars in the sum of US $15,800,157.70
with an agreed interest of US $151.340 per month.<o:p></o:p>&nbsp;Repayment of the Defendant's indebtedness was
by the agreement restructured on the Defendant's own terms. By the
restructuring, the Defendant was from May 20</main>