AMADOU SALAM SALAMI vs. APOLLO STEEL GHANA LIMITED [2016]DLCA4537

Date	2016-03-22
Suit No.	SUIT NO. H3/599/2015
Citation No.	[2016]DLCA4537

AGYEMANG (MRS.) JA

JOSEPH DZAKPASU FOR RESPONDENT

ASARE DANQUAH FOR APPLICANT

[2016]DLCA4537
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													<main id="main" class="content" style="min-height: 60rem" >AMADOU SALAM SALAMI<o:p></o:p>(PLAINTIFF/RESPONDENT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>APOLLO STEEL GHANA
LIMITED<o:p></o:p>(DEFENDANT/RESPONDENTAPPELLANT/APPLICANT)<o:p></o:p>[COURT
OF APPEAL (CIVIL 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. H3/599/2015&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;DATE: 22ND MARCH
2016<o:p></o:p>

ASARE
DANQUAH FOR APPLICANT<o:p></o:p>

</div>AGYEMANG JA:-<o:p></o:p>This
is a ruling in respect of an application for a stay of execution of the
judgment of the High Court Accra delivered on the 18th of January 2015.<o:p></o:p>The
application is supported by a nineteen-paragraph affidavit sworn to by one Ravi
Tiwariwho described himself as a Director of defendant appellant/applicant
(referred to hereafter as the applicant) with the requisite consent of the
applicant to depose to matters on its behalf. According to the said deponent,
the applicant was dissatisfied with the judgment of the court below which was
entered against it in breach of the rules of natural justice when the learned
trial judge allegedly failed to give the applicant the opportunity to
cross-examine the plaintiff on his evidence or for the applicant to open its
defence. It was deposed that the applicant failed to attend court when the case
was called for hearing of the 27th of January 2015 and that when the court
adjourned for judgment an application by the applicant to arrest the court’s
judgment and for the applicant to be heard was not heard.<o:p></o:p>The
applicant who claimed that it had a good defence to the suit alleges that he
has been prevented form defending the suit and prosecuting his counterclaim by
the learned trial judge who shut the door in its face. By reason of the alleged
breach of natural justice due to the want of fair hearing, the deponent alleged
that the appeal had a good chance of success. <o:p></o:p>According
to the deponent, in the likely event of a successful appeal, same would be
rendered nugatory as the plaintiff/respondent/respondent (respondent) who was
resident outside the jurisdiction: in Lome, Togo, might not be in a position to
refund the judgment debt paid to him. On the other hand, the applicant
described as a solid business entity would be able to pay the judgment debt in
the event of an unsuccessful appeal. <o:p></o:p>Arguing
the motion, learned counsel for the applicant who repeated the said matters
deposed to cited Dzokoto&amp;Amissah v. BBC Industrials Company Ltd and City
Express Bus Ltd 2011 2 SCGLR 825Holding 1 to argue that the balance of hardship
lay with the applicant rather than on the respondent who having lost his job in
Ghana had gone to live in Togo and might not be able to refund the judgemnt
debt once it was paid to him.<o:p></o:p>In
a twenty-three paragraph affidavit in opposition as well as a nine-paragraph
supplementary affidavit, one George OwusuAnsah who described himself as a
lawyer in the firm of lawyers representing the respondent deposed that the
appeal had little chance of success as the applicant was given ample opportunity
to defend the suit and prosecute its counterclaim but failed to do so. <o:p></o:p>Making
reference to affidavits of service (exhibited by the respondent) duly served on
counsel for the applicant on two occasions he deposed that on both occasions
7th January 2015 and 15th January 2015, neither the applicant nor counsel
showed up in court. Then when the trial judge adjourned the matter for judgment
to the 18th of January 2015, the applicant filed a motion to arrest the
judgment on the 17th of February 2015 which motion was set for hearing on the
25th of February 2015. This is what the learned trial judge refused to do and
so went ahead to enter judgment for the respondent. <o:p></o:p>It
was further deposed that the respondent who had suffered a great deal by reason
of his unfair termination by the applicant had already gone into execution and
had successfully received the sum of USD10,000 from the Standard Chartered Bank
(Garnishee) through garnishee proceedings and that it was too late in the day
for execution to be reversed.<o:p></o:p>Lastly
it was deposed on behalf of the respondent that although he was resident in
Lome Togo, he was a citizen of Ghana with family ties in Ghana and a family
house at Hohoe.<o:p></o:p>Arguing
in opposition to the application learned counsel for the respondent also
repeated the matters contained in the opposing affidavits, more particular
regarding the absence of the applicant and counsel on the days appointed for
court appearances in spite of due service. Citing Accra Hearts of Oak v Ghana
Football Association [1982-83] GLR 117, and Ankumah v City Investments Ltd
[2007-2008] SCGLR 1076 per Adinyira JSC, he contended that it did not lie in
the mouth of the applicant who had been indolent to complain of the court’s
attitude to it. Lastly, counsel contended that the attitude of the applicant
was what had brought about the judgment complained of and that even after
judgment when it sought a stay of execution, it did not approach that
application with seriousness. To buttress this, he referred to two
post-judgment rulings exhibited by the respondent in the supplementary
affidavit in opposition. In the first of these, dated 11th of August 2015, the
applicant who was seeking a stay of execution of the judgment of the court once
again absented himself from court. The second rulingdated 28th of August
refused the application on its merits.<o:p></o:p>