ADM COCOA GHANA LIMITED vs. INTERNATIONAL LAND DEVELOPMENT [2015]DLSC6130

Date	2015-05-07
Suit No.	CIVIL MOTION NO.J8/47/2015
Citation No.	[2015]DLSC6130

ATUGUBA JSC (PRESIDING)

AKUFFO (MS) JSC

ADINYIRA (MRS) JSC

GBADEGBE JSC

BENIN JSC

KWAME BOAFO AKUFFO FOR THE APPLICANT.

EDEM KUTSIENYO (LED BY LAWRENCE OTOO) FOR THE RESPONDENT.

[2015]DLSC6130
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													<main id="main" class="content" style="min-height: 60rem" >ADM COCOA GHANA LIMITED<o:p></o:p>{RESPONDENT}<o:p></o:p>vs.<o:p></o:p>INTERNATIONAL LAND DEVELOPMENT<o:p></o:p>{APPLICANT}<o:p></o:p>[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
MOTION NO.J8/47/2015&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: 7TH MAY
2015<o:p></o:p>

EDEM
KUTSIENYO (LED BY LAWRENCE OTOO) FOR THE RESPONDENT.<o:p></o:p>

<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">RULING<o:p></o:p>

</div>ATUGUBA
JSC <o:p></o:p>The brief facts of this
application are that a judgment for US$2 million damages was given by the High
Court in favour of the respondent against the applicant.&nbsp; Upon the transmission of the record of appeal
to the Court of Appeal the applicant unsuccessfully thereat applied for a stay
of execution of the said judgment pending the determination of the appeal by
the court of Appeal.&nbsp; Having appealed to
this court against the said refusal the applicant again applied unsuccessfully
to the Court of Appeal for a stay of execution.&nbsp;
The course of events from that stage is best captured in paragraphs 9 to
17 of the applicant’s affidavit in support of its present application before
this court. <o:p></o:p>They are as follows: <o:p></o:p>“9. That pending the determination of
the Interlocutory Appeal to this Court, the Applicant filed an Application
before the Court of Appeal seeking to suspend any steps on the Entry of
Judgment by the Plaintiff/Respondent pending the determination of the
Interlocutory Appeal (Exhibit KBA “4”) <o:p></o:p>10. that on the 25th of February, 2015
the Court of Appeal Coram, Marfo Sau J.A. (Presiding), Aduamah Osei J.A. and L.
L. Mensah J.A. heard the Application and dismissed same on the ground that the
decision of the Court of Appeal (Exhibit KBA “2”) was binding upon them and
therefore the appropriate place for the Application is the Supreme Court. The
Applicant has since applied for the ruling of the Court of Appeal.&nbsp; Attached and marked as Exhibit “KBA 5” is
evidence of same. <o:p></o:p>11. That in the circumstances, this
Application is thus a repeat Application. <o:p></o:p>12. That the Applicant is of the
respectful position that the “nugatory test” adopted by the Court of Appeal in
Exhibit KBA “3” did not take into consideration the clear fact that the
Respondent’s position that it was a going concern capable of refunding the
Judgment debt in the event that the Applicant succeeded in the Appeal, was a
bald claim for there was nothing supportive of same.<o:p></o:p>13. That at all material times, the
issue between the parties was whether or not the warehouse floor had failed
because of inferior materials and workmanship
(Plaintiff/Respondent/Respondent’s contention) or because the
Plaintiff/Respondent had allowed trucks to come into the warehouse without regard
to the concrete strength of the warehouse floor.
(Defendant/Appellant/Applicant’s contention.) <o:p></o:p>14. That the High Court awarded the
Plaintiff/Respondent/Respondent the sum of Two Million United States Dollars
(US$2,000,000) and that in the event that the Appeal succeeds, the
Defendant/Appellant/Applicant will be saddled with a worthless warehouse.&nbsp; Attached and marked as Exhibit “KBA 6” is a
copy of the Judgment of the High Court. <o:p></o:p>15. That above all, the recovery of
any sums paid as Judgment debt from the Plaintiff/Respondent may lead to
further litigation which can easily be avoided by a stay of execution. <o:p></o:p>16. That in the circumstances, the
Applicant respectfully, states that the Court of Appeal in the application of
the “nugatory test” thereby violated the integrity of the Appellate process. <o:p></o:p>17. That the Court of Appeal did not
consider the fact that the Grounds of Appeal raised an arguable Appeal and the
prospect that a successful Appeal would be rendered nugatory because an
examination of the Record of Appeal does not show that the
Plaintiff/Respondent/Respondent has any security upon which the Applicant can
fall to recover the Judgment debt if same is paid before the determination of
the Appeal.” <o:p></o:p>In arguing the application
before us Mr. Kwame Akuffo relied on the cases of Golden Beach Hotels (Ghana)
Ltd v Pack Plus International Ltd. [2012] SCGLR 452 and Merchant Bank Ghana
Ltd. v Similar Ways Ltd, [2012] 1 SCGLR 440. <o:p></o:p>However as explained by
our respected brother Dotse JSC in a paper presented by him at the 2013/14
Annual Conference of the Ghana Bar Association held at Ho Polytechnic on
17/9/2013 on the topic “EXECUTABLE – NON EXECUTABLE ORDERS – THE PREDICAMENT OF
THE JUDGMENT DEBTOR IN STAYING EXECUTION OF JUDGMENT PENDING APPEAL” there are
“cases where the court has taken some different positions all aimed at
addressing the cardinal issues of justice raised in the cases.&nbsp; But this trend appears to have been gently
criticized, refined and fine tuned by the decision of the Supreme Court in the
case of Golden Beach Hotels (Ghana) Ltd v Pack Plus International Ltd. [2012]
SCGLR 452, where my respected and learned brother, Date-Bah JSC, speaking on
behalf of the Court on issues relating to executable and non-executable orders
stated as follows:<o:p></o:p>