JONAS ADDO McKAY, MR. OKU AND MRS. OKU vs. DANIEL MENSAH AND NATIONAL LOTT RECEIVERS UNION [2013]DLSC2808

JONAS ADDO McKAY, MR. OKU AND MRS. OKU vs. DANIEL MENSAH AND NATIONAL LOTT RECEI... [2013]DLSC2808

Date	2013-05-03
Suit No.	CIVIL APPEAL NO. J8/49/2013
Citation No.	[2013]DLSC2808

BENIN J.S.C.

BAFFOUR ASSASIE GYIMAH FOR THE APPLICANTS.

FELIX QUARTEY FOR THE RESPONDENTS.

[2013]DLSC2808
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													<main id="main" class="content" style="min-height: 60rem" >JONAS ADDO McKAY, MR.
OKU AND MRS. OKU<o:p></o:p>vs.<o:p></o:p>DANIEL MENSAH AND
NATIONAL LOTT RECEIVERS UNION<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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO. J8/49/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 3RD MAY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>BAFFOUR ASSASIE GYIMAH FOR
THE APPLICANTS.<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">

BENIN
J.S.C. SITTING AS A SINGLE JUSTICE OF THE SUPREME COURT<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;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT
<o:p></o:p>

</div><o:p>&nbsp;</o:p>BENIN,
J.S.C.:- <o:p></o:p>This is an application for
an order of interlocutory injunction brought by the 1st Defendant/Appellant/Applicant,
hereinafter called the 1st Defendant against the
Plaintiffs/Respondents/Respondents, hereinafter called the Plaintiffs. The main
point in the application is that the Plaintiffs have taken steps to execute a
judgment obtained against the 1st and 2nd Defendants at
the High Court. The judgment is the subject of an appeal which is still pending.
That if the plaintiffs and the Deputy Sheriff are not restrained they will
execute the judgment to his detriment. The application was opposed on stated
grounds, among which is the fact that the appeal is out of time; that the
Defendants have had the use of Plaintiffs’ money for too long and should thus
be made to pay; that this is actually a stay of execution brought under the
guise of an interlocutory injunction.<o:p></o:p>The case started at the
High Court when the Plaintiffs sued out a writ of summons claiming a specific
amount of GH₵41,700.00 being the balance of the sum
of money advanced to the defendants at the interest rate of 7%. They also
claimed 7% interest on the said amount from a specified date until date of
final payment. The Defendants did not deny receiving some money from the Plaintiffs.
What they said was that it was a money-lending transaction whereby the Plaintiffs
loaned them the total sum of GH₵33,000.00. The
money was given to the 1st Defendant to be distributed to members of
the 2nd Defendant association. <o:p></o:p>On 25th October
2010 the trial court gave a judgment, without deciding how much the Defendants
owed, if at all, on both the principal and the interest. Even the rate of
interest was not decided in that judgment. All these matters were left to the
Registrar of the Court to go into. Following a submission of the Registrar’s
report, the trial court gave a judgment on 19th January 2011, in which
it found that the defendants had paid GH₵20,980.00
to date, leaving a balance of GH₵36,606.40,
on the principal with interest at the rate of 20.5%.<o:p></o:p>On 14th April
2011 the 1st Defendant filed a notice of appeal against the
judgments of 25th October 2010 and 19th January 2011 on
several grounds of appeal which prima facie appear weighty; especially those on
breach of laws governing money-lending transactions and the rate of interest
applied by the trial court.<o:p></o:p>The 1st Defendant
applied for a stay of execution but it was refused by the Court of Appeal on
the ground that the appeal was filed out of time. An application to review that
decision was also rejected by the same court. The court held that the judgment
of 25th Octobber 2010 was the final judgment. This is what the court
said per Dennis Adjei, J.A.: “The issue to pose is, which of the judgments is
the final one and which one is interlocutory? We do not have any doubts in our
minds that the judgment delivered on 25th October 2010 is the final
judgment. The judgment was delivered and the Registrar of the Court was only
tasked by the Court to work out some arithmetics as to the interest payable on
the judgment debt.”<o:p></o:p>The question posed by the
Court of Appeal is still at the centre of the ongoing proceedings, and will be
the core issue to resolve if eventually the appeal is to be allowed to proceed
on merits. In arguing this point in support of their respective position in
this application, both Counsel made references to some decided authorities to confirm
what in their view was the correct position of the law. The position of the 1st
Defendant’s Counsel is that the decision of 25th October 2010 was
not a final judgment; it is the decision of 19th January 2011 which
finally decided the case. He cited a number of authorities in support including
the following: IN RE MENSAH (DECD); MENSAH &amp; SEY v. INTERCONTINENTAL BANK
(GH) LTD. (2010) SCGLR 118 SC; REPUBLIC v. HIGH COURT (FAST TRACK DIVISION)
ACCRA; EX PARTE STATE HOUSING CO. LTD. (NO.2) (KORANTEN-AMOAKO, INTERESTED
PARTY) (2009) SCGLR 185; POMAA v. FOSUHENE. (1987-88) 1 GLR 244 SC.<o:p></o:p>For his part, Counsel for
the Plaintiffs submitted that the judgment of 25th October 2010 determined
the rights of the parties so it was final. His position followed that of the
Court of Appeal which I quoted above. He rel</main>