BAKANA LIMITED vs. ALBERT OSEI, THE OFFICIAL LIQUIDATROR OF GHANA AIRWAY LIMITED [2012]DLHC15055

Date	2012-06-13
Suit No.	SUIT NO. BL 676/07
Citation No.	[2012]DLHC15055

HIS LORDSHIP JUSTICE JOHN AJET-NASAM

BRIGHT AKWETEY FOR PLAINTIFF/RESPONDENT

FRANK DAVIS WITH JUSTIN AMENUVOR FOR 2ND DEFENDANT/APPLICANT

[2012]DLHC15055
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													<main id="main" class="content" style="min-height: 60rem" >BAKANA LIMITED<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>ALBERT OSEI, THE OFFICIAL LIQUIDATROR OF GHANA AIRWAY LIMITED<o:p></o:p>(DEFENDANT/APPLICANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

</div>COUNSEL<o:p></o:p>BRIGHT AKWETEY FOR PLAINTIFF/RESPONDENT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0in 0in 1pt;">

</div>CORAM<o:p></o:p>HIS LORDSHIP JUSTICE JOHN AJET-NASAM<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0in;">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>The 2nd defendant/applicant
with the 1st defendant lost to the plaintiff/respondent in an action
before me. The 1st defendant is however not a party to this present
application for Stay of Execution. I say so because, this motion filed on the
19th April 2012 had this:<o:p></o:p>&nbsp;“MOTION ON NOTICE FOR STAY OF EXECUTION
PENDING APPEAL<o:p></o:p>Take
notice that counsel for and on behalf of the 2nd
Defendant/Appellant/Applicant…..”<o:p></o:p>The
above, makes me come to the conclusion that, the 1st defendant had
not applied to be part of this application for Stay of Execution. It is however
on record that, the 2nd defendant/applicant is the official
Liquidator of Ghana Airways and as such, the property in dispute was sold by
the Liquidator. The Black’s Law Dictionary, Ninth Edition defines “Liquidator”
a term that came up for use in 1858 as “A person appointed to wind up a
business’s affairs especially by selling off its assets.<o:p></o:p>The
first defendant was said to have purchased the property in contention. The 2nd
defendant therefore had the mandate of converting the assets of the Ghana
Airways into cash, especially to settle debts. Judgment was entered against the
defendants on the 23rd day of March 2012. The 2nd defendant being
dissatisfied with the said judgment had filed a notice of appeal at the Court
of Appeal on the 3rd day of April 2012. The gravamen of the
application for stay before me can be found in paragraphs 14 and 15 of the
application in support. This is my opinion because, I am not called upon to determine
the appeal and it is not my business to do so..<o:p></o:p>The
applicant argued in paragraph 14 that, if the judgment is not stayed, and in
the event of 2nd defendant’s appeal succeeding, plaintiff would have
changed the character of the property.<o:p></o:p>&nbsp;Secondly,
the plaintiff will suffer no hardship as between him and 2nd
defendant if the application is refused. In response to these main arguments,
the respondent in paragraphs 12 and 13 argues, it will occasion a substantial
miscarriage of Justice if the application for stay is granted. In NDK Financial
Services Vrs. Yiadom [2007-2008] 93, Brobbey JSC speaking for the majority
of the Court said at page 96 of the report.<o:p></o:p>“The
principles for considering stay of execution pending appeal are well-settled:
See the celebrated case of Joseph Vrs. Jebeille [1963] 1 GLR 387, SC. The main
principle adopted by the courts is what the position of the appellant would be
if the judgment were to be enforced and he succeeded on the appeal. In
elaborating on the principle further in Joseph vrs. Jebeille (Supra), the then
supreme Court (per Akufo-Addo JSC (as he then was) at page 390 of the report,
stated that the essential point in considering such applications is whether the
applicant would be returned to the status quo ante should the appeal succeed.”<o:p></o:p>Interestingly,
counsel for the defendants herein, Justin Amenuvor was learned counsel for the
plaintiffs/respondents in the NDK Financial Services Ltd vrs. Yiadom (supra)
case. The property in question is a dwelling house. The area the property is
located is a prime residential area and not an industrial one.&nbsp; What both the plaintiff and 1st
defendant wanted to use the property for, is a place for residence.&nbsp; It is obvious that the position of the
applicant would never change if the appeal succeeds.<o:p></o:p>