AFARE APEADU DONKOR vs. ECOBANK GHANA LTD. AND EDC STOCKBROKERAGE LTD. [2015]DLHC3504

Date	2015-11-02
Suit No.	SUIT NO.OCC/33/2012
Citation No.	[2015]DLHC3504

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2015]DLHC3504
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">AFARE APEADU DONKOR<o:p></o:p></a>vs.<o:p></o:p>ECOBANK GHANA LTD. AND EDC
STOCKBROKERAGE LTD.<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), 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">

SUIT
NO.OCC/33/2012&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 2ND NOVEMBER, 2015<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH 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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RULING<o:p></o:p>

</div>The Defendant/Applicant seeks from this court a
prohibitory injunction to restrain the Plaintiff/Respondent from executing the
judgment he obtained on the 19th of December, 2013. The basis of
this instant application is grounded on the fact that the Applicant claims to
have filed an application at the Court of Appeal to discharge an order that
refused to restore his appeal that had been struck out. And to him he seeks the
injunction to restrain the Plaintiff/Respondent from going into execution as he
has a good chance of restoring his appeal.<o:p></o:p><o:p>&nbsp;</o:p>Though the applicant and his counsel were not in court
to move the application on 29/10/15, nonetheless the court adjourned to today
to deliver its ruling on the application filed by the Defendant/Applicant
rather than striking it out for want of prosecution. The reasons for such a
position cannot be far fetched as under Order 25 of the High Court (Civil
Procedure) Rules, C. I. 47 that the Applicant brings this application, it
clearly states under Rule 6 that:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “The
application may be considered on the basis of the papers filed and the court
may direct where necessary, the lawyer address it on specific points of and
facts”.<o:p></o:p>The Court does not deem it necessary to seek for
further oral address beyond the written addresses filed.<o:p></o:p><o:p>&nbsp;</o:p>Order 25 of the High Court, (Civil Procedure) Rules,
C. I 47 enjoins the court to grant an application for injunction in all cases
in which it appears just or convenient to do so.<o:p></o:p>Injunction being an equitable remedy there are a
number of factors that an applicant must satisfy the court before such an
application may be granted. The first is what was stated in the case of VANDERPUYE v NORTEY [1977] 1GLR 428 @
432 and restated in the case of OWUSU ANSAH
v OWUSU ANSAH [2007 -2008] SCGLR 870 @ 875 that:<o:p></o:p>“the
fundamental principle in application for interim injunction is whether the
applicant has a legal right at law or in equity, which the court ought to
protect by maintaining the status quo until the final determination of the
action on its merits. This could only be determined by considering the
pleadings and the affidavit evidence before the court”<o:p></o:p>This is not an ordinary injunction that the Applicant
seeks. The net effect of the injunction he seeks is akin to or Siamese twin of
stay of execution pending appeal as the Applicant intends to hold the execution
processes in abeyance. For what cause? That the Applicant has no appeal pending
before the Court of Appeal but that he aims to restore a Notice of Appeal that
has been struck out and for that reason this court ought to injunct the
Plaintiff from going into execution.<o:p></o:p>In the Supreme Court case of N.D.K FINANCIAL SERVICES LTD v YIADOM [2007-2008] SCGLR 93 the
court noted that the principle adopted by the courts was what the position of
the appellant would be if the judgment were to be enforced and the appeal was
successful. That is whether the appellant could be restored to the status quo
ante should the appeal succeed. But to determine this ultimate question of
possibility of restoration of the appellant to the status quo ante there are a
number of grounds that would have to guide the court. These principles have
been summarized in the case of NANA
KWASI AGYEMANG VIII v NANA HIMA DEKYI XIII [1982-83] GLR 453 and these are:<o:p></o:p><ol style="margin-top:0in" start="1" type="1">
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1">If the application has not been brought bona fide
 to test the rightness of the judgment or order the application ought to be
 refused<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1">That a court ought not to stay execution unless
 there were exceptional circumstances that calls for a stay as a successful
 party should not needlessly be deprived of the fruits of his victory<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1">Where the court was satisfied that the appeal was
 frivolous either the grounds of appeal contained no merit or it has scant
 chance of succeeding<o:p></o:p></li>
 <li class="MsoNormal" style="text-align:justify;line-height:115%;mso-list:l0 level1 lfo1">The level of hardship on either of the parties
 with the grant or refusal of the applica</main>