FOOTPRINT SOLUTIONS CO. LTD vs. LEO & LEE COMPANY LTD [2013]DLSC2806

Date	2013-05-24
Suit No.	CIVIL APPEAL NO. J4/52/2011
Citation No.	[2013]DLSC2806

DR. DATE BAH J.S.C. (PRESIDING)

ANIN YEBOAH J.S.C.

BAFFOE BONNIE J.S.C.

BENIN J.S.C.

AKAMBA J.S.C.

HANSEN KODUAH (WITH HIM FELIX DATSOMOR) FOR THE PLAINTIFF /APPELLANT/APPELLANT.

EDWARD ANOKYE FOR THE DEFENDANT/RESPONDENT/RESPONDENT.

[2013]DLSC2806
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													<main id="main" class="content" style="min-height: 60rem" >FOOTPRINT SOLUTIONS CO.
LTD<o:p></o:p>vs.<o:p></o:p>LEO &amp; LEE COMPANY LTD<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/52/2011&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 24TH MAY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>HANSEN KODUAH (WITH HIM
FELIX DATSOMOR) FOR THE PLAINTIFF /APPELLANT/APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DR. DATE BAH J.S.C. (PRESIDING), ANIN
YEBOAH J.S.C., BAFFOE BONNIE J.S.C., BENIN J.S.C., AKAMBA J.S.C.&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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<o:p></o:p>

</div><o:p>&nbsp;</o:p>AKAMBA,
J.S.C<o:p></o:p>The Court of Appeal
delivered a ruling on 25th day of January 2010 in which it granted a
stay of proceedings pending appeal, filed by the
defendant/appellant/respondent, herein after simply referred as the respondent,
against a decision of the High Court, Kumasi in favour of the
Plaintiff/Appellant/ Appellant, hereinafter simply referred as the Appellant.
Dissatisfied with the aforesaid ruling, the appellant has filed a number of
grounds before this court for determination.<o:p></o:p>FACTS<o:p></o:p>Before dealing with the
grounds and merits of this appeal, a brief overview of the facts leading to the
case is necessary in order to appreciate the present matter. It all begun when
the Appellant as plaintiff issued a writ of summons at the High Court Kumasi
seeking a recovery of the sum of GHC 20,000 being part payment it made to the
respondent for the supply of a printer which proved mechanically faulty and/or
malfunctional upon delivery. It also claimed interest on the amount. The
respondent entered conditional appearance and filed an application for a change
in venue from Kumasi to Accra stating reasons from the terms of their written
contract among others. The motion for change in venue was argued on 15th
May 2009 and dismissed by the court for lack of merit. Obviously displeased
with the said ruling, the respondent appealed to the Court of Appeal on 21st
May 2009 against same. (See pages 19-20 of ROA). The respondent also filed a
motion on notice to stay the proceedings in the trial court pending hearing of
the appeal on 7th July 2009. (See page 1 of ROA). The respondent’s Notice
of Appeal was couched as follow:<o:p></o:p>“Take
Notice that the Defendant/Appellant herein being dissatisfied with and
aggrieved by the ruling of the High Court, Kumasi, given on 15th
May, 2009…..does hereby appeal to the Court of Appeal on the grounds stated in
paragraph 4 and the Appellant further states that the name and address of the
person directly affected by this appeal is that set out in Paragraph 5.<o:p></o:p>3.
RELIEFS SOUGHT<o:p></o:p>i.
The Ruling to be set aside.<o:p></o:p>ii.
An order referring the suit to the Chief Justice for transfer to Accra.<o:p></o:p>&nbsp;4. GROUNDS OF APPEAL<o:p></o:p>The
ruling was against the weight of evidence<o:p></o:p>(ii)
The learned judge erred in law in holding that the convenient forum for the
hearing of the suit is Kumasi in the teeth of overwhelming evidence provided by
the said agreement exhibited which was executed by the parties and which showed
that the contract was performed in Accra.<o:p></o:p>(iii)
The learned judge erred in law in holding that the convenient forum for the
hearing of this suit is Kumasi when there was unchallenged evidence on the
record that defendant carried on business in Accra only and nowhere else in
Ghana.”<o:p></o:p>Whilst the above appeal
was pending, the Appellant as plaintiff applied for summary judgment before the
trial court. The court heard the application and entered judgment for the
appellant on 22nd July 2009. The respondent as defendant appealed
against the summary judgment also to the Court of Appeal and then applied to
the trial High Court on 30th July 2009 to stay execution of that
judgment, i.e. the summary judgment pending appeal. The application to stay
execution was fixed for hearing on 20th October 2009.<o:p></o:p>The result was that there
were two applications in the same matter pending at the same time – the one for
the stay of execution before the trial High Court and the other for a stay of
proceedings before the Court of Appeal. The record shows that the application
for stay of proceedings before the Court of Appeal was filed first, this being
the 7th July 2009. This was before the grant of the summary judgment
by the trial court on 22nd July 2009. On 25th January
2010, the Court of Appeal ordered a stay of all proceedings in the trial court
and rejected the argument that there was nothing to stay in view of the High
Court having given final j</main>