FRANSTEL LIMITED vs. MERCHANT BANK LTD [2013]DLCA3131

Date	2013-01-24
Suit No.	CIVIL APPEAL NO: H1/76/2012
Citation No.	[2013]DLCA3131

JUSTICE E K AYEBI JA [PRESIDING]

JUSTICE IRENE C DANQUAH JA

JUSTICE ALHAJI TANKO AMADU JA

AMA ASSENSO FOR PLAINTIFF/RESPONDENT/APPELLANT

ANDREW DANIELS FOR DEFENDANT/APPELLANT/RESPONDENT.

[2013]DLCA3131
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													<main id="main" class="content" style="min-height: 60rem" >FRANSTEL LIMITED<o:p></o:p>vs.<o:p></o:p>MERCHANT BANK LTD<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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">

CIVIL
APPEAL NO: H1/76/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 24TH JANUARY, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AMA ASSENSO FOR
PLAINTIFF/RESPONDENT/APPELLANT<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="text-align:center;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">JUDGEMENT<o:p></o:p>

</div>IRENE
C DANQUAH, JA<o:p></o:p>&nbsp;This is an interlocutory appeal emanating from
a ruling of the High Court, Kumasi dated 7th November, 2011. The
High Court in its ruling granted a stay of execution of the judgment of the
said Court delivered on 8th December, 2009 in the following terms:<o:p></o:p>“Accordingly
the application is granted as prayed. The judgment of the Court dated 8th
December, 2009 is hereby, stayed. The application also seeks a release of
items/ equipment seized in execution on Friday 21/5/2010. Since these items
have already been released to the Defendant Bank, no further order need be made
except to confirm the said order ex abundanti cautela, which I, hereby,
confirm. No order as to costs.”<o:p></o:p><o:p>&nbsp;</o:p>Aggrieved by the
said decision, the Plaintiff/Respondent/Appellant thus appealled on two main
grounds. The first ground of appeal
reads;<o:p></o:p>1.<span style="font-style: normal; font-variant-numeric: normal; font-variant-east-asian: normal; font-weight: normal; font-stretch: normal; font-size: 7pt; line-height: normal; font-family: &quot;Times New Roman&quot;;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The learned trial judge
misconceived the nature and scope of the Appellant’s application filed by the
Defendant/ Respondent.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;In arguing this ground of appeal, counsel for
the Appellant referred to the affidavits of Naa Shormeh Gyang at pages 51 and
70 of the record of appeal and submitted that they are fundamentally
defective.&nbsp; Counsel referred us to the
decision of Hayford – Benjamin&nbsp; &nbsp;JSC in Ex Parte Atumfuwa (2000) SCGLR 72 especially
page 77 thereof which Counsel quoted in extenso.&nbsp; Counsel for the Appellant did not
categorically state why the affidavits are fundamentally defective. <o:p></o:p><o:p>&nbsp;</o:p>However, it is clear from a
careful reading of the Ex Parte
Atumfuwa Case (supra), that the, matter
for the determination of the Supreme Court was whether the Supreme Court is vested
with jurisdiction under Rule 79 of the
Supreme Court Rules, 1996 (CI 16) to waive non- compliance with Rule
61(1). In that Case, the application for certiorari was accompanied by an unsworn affidavit. On the day for
the ruling the Supreme Court realizing that the affidavit was unsworn granted
leave to the Applicant to file a sworn affidavit and adjourned the proceedings
for a ruling to be given on another day. However, before the ruling could be
given, the Defendants in the case filed an application for a review of the
order which granted leave to file the sworn affidavit.<o:p></o:p><o:p>&nbsp;</o:p>In response to the above
submission, Counsel for the Respondent submitted that both affidavits in
contention and which were in support of the application for stay of execution
are sworn affidavits. Counsel for the Respondent invited us to dismiss this ground
of appeal as unmeritorious and without basis.&nbsp;
<o:p></o:p><o:p>&nbsp;</o:p>We have looked at both
affidavits of Naa Shormeh Gyang which is the subject matter of the attack by
the Appellant on the record. The affidavits are sworn. They were sworn before
Yaw Donkor Amaning, a Commissioner for Oaths. We, therefore, find no merit in
this ground of appeal.<o:p></o:p><o:p>&nbsp;</o:p>The second ground of
appeal is that;<o:p></o:p>“The learned trial judge erred in
failing to consider the principles to be taken into account in granting stay of
execution.”<o:p></o:p><o:p>&nbsp;</o:p>Counsel for the Appellant
in respect of this ground submitted that the trial court purported to confirm ex abundanti cautela an order already
made at a time it was clearly functus officio
and further that it is not permitted by law. Counsel contended that the
application was incompetent as the Court had earlier purported to grant a stay
even though execution had been levied. Counsel submitted that the Court failed
to act judicially in purporting to grant the stay of execution arguing that the
Appellant indicate</main>