NDK FINANCIAL SERVICES LTD vs. OTEMMS CO LTD AND 2 OTHERS [2006]DLCA6543

Date	2006-04-07
Suit No.	H1/353/2004
Citation No.	[2006]DLCA6543

OWUSU J.A. [PRESIDING]

QUAYE J.A.

ANIN-YEBOAH .J.A

LOUSE ABOAGYEWAA FOR ATTA AKYEA FOR DEFENDANT/APPELLANTS

PEASAH BOADU FOR PLAINTIFF/RESPONDENT

[2006]DLCA6543
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													<main id="main" class="content" style="min-height: 60rem" >NDK
FINANCIAL SERVICES LTD<o:p></o:p>(PLAINTIFF/
RESPONDENT)<o:p></o:p>vs.<o:p></o:p>OTEMMS CO
LTD AND 2 OTHERS<o:p></o:p>(DEFENDANT/
APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<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">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">H1/353/2004&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
7TH APRIL, 2006.<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">PEASAH BOADU FOR
PLAINTIFF/RESPONDENT. <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">OWUSU, J.A. [PRESIDING]
QUAYE, J.A. AND ANIN-YEBOAH, .J.A.<o:p></o:p>

</div>ANIN-YEBOAH,
J.A.<o:p></o:p>On
or about the 27/5/2004 the Plaintiff/Respondent herein [referred to in this
judgment as the respondent] sued the Defendants/Appellants herein who shall
simply be referred to as the Appellants for an amount of ¢1,175,038,979.00 and
claimed interest thereon. It appears the cause of action arose out of a
financial facility extended to the Appellants by the Respondent. The Appellant
had defaulted in the repayment of the amount so granted. Pursuant to the entry
of appearance the Appellants filed a statement of defence which substantially
admitted the claim and even pleaded to pay off the entire amount on
installments. Based on the admissions, the Respondent proceeded to file a
motion for judgment on admissions under Order 32 rule 6 of the then existing
High Court Civil Procedure Rules, LN.140A of 1954. When the motion was heard on
19/7/2004 the learned trial judge entered final judgment for ¢1,065,038,979.00
together with interest at the contractual rate of six and half per cent. <o:p></o:p>Pursuant
to the filing of entry of judgment by the respondent, an application for a writ
of fifa was filed which sought to attach several items listed on the writ. The
Appellants promptly filed a motion for Stay of Execution and payment of the
judgment debt by installment: The application was moved in the High Court on
10/8/2004 before Insaidoo, J. The learned trial judge granted the application
after Counsel for the Respondent had withdrawn his opposition to the
application. The order made by the trial judge has attracted different interpretations
by both counsel and it will clarify the issues if it is reproduced in this
judgment. This was what the judge said in her ruling: <o:p></o:p>"Upon
an application by counsel for the Judgment/Debtor for stay of execution and
payment by installments, and the counsel for the Judgment/Creditor not being
opposed to the application, the application is hereby granted. The
Defendant/Judgment/Debtor is to pay 100 Million Cedis payable on the last day
of every month until the judgment debt is liquidated together with the interest
thereon beginning from 31st August, 2004. In the event of default, the
Plaintiff/Judgment/Creditor reserves the right to go into execution." <o:p></o:p>After
this ruling, the appellants defaulted in the payments by installments in the
manner proposed by them and which formed the basis of the ruling. The
attachment of the properties and the subsequent application for reserved price
at the instance of the Respondent prompted the appellants to file a motion for
stay of execution and to set aside attachment of the Defendant's properties.
The motion was moved on 5/11/2004 before the same judge. Learned Counsel for
the appellant relying on the case of the Republic vrs. High Court, Accra.
Ex-parte:- Kumoji [2000] SCGLR.211 urged on the trial judge that the leave of
the Court ought to have been sought after the default by the Appellants to pave
way for any valid execution to proceed. As expected, the application was
resisted on the grounds that no leave was required as the order made on the
10/8/2004 was clear and that the Respondent did not flout it. On 8/11/2004 the
trial judge, placing total reliance on the Kumoji case [supra], set aside the
attachment by declaring same to be null and void. She further held that leave
ought to be sought for any valid execution to proceed. The respondent did not
appeal against the ruling dated the 8/11/04 but to clear the doubt filed a
motion for leave to go into execution on 19/11/2004. The said motion was fixed
for 30/11/2004 and was moved before Torkornoo, J who granted the Respondent
leave to levy execution. The record shows that at the time the motion was
moved, the appellants had already filed another motion for stay of execution
and payment of judgment debt by installments. The learned judge's attention was
drawn to the pendency of the motion which was fixed for 9/12/04. The learned
trial judge ignored it and proceeded to hear the application. She granted leave
to the Respondent to proceed with the execution. <o:p></o:p>After
the grant of the order to proceed with the execution, counsel for the
Appellants on 30/11/04 filed yet another motion and headed it as follows:
'Application to set aside the Order of the court granting leave to the
Plaintiff to go into execution and to arrest any attachment of the Defendant's
property!’ This motion was also fixed for the same 9/12/2004. The application
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