ECOBANK GHANA LTD (PLAINTIFF) vs. AKAIDOO ENTERPRISE LTD & ORS (DEFENDANTS) [2016]DLHC7241

Date	2016-04-04
Suit No.	SUIT NO. BFS/128/06
Citation No.	[2016]DLHC7241

HIS LORDSHIP GEORGE K. KOOMSON (J).

RICHMOND NUMBO SAAKA FOR APPLICANT

DANIYAL ABDUL KARIM FOR 3RD PARTY/RESP

[2016]DLHC7241
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													<main id="main" class="content" style="min-height: 60rem" >ECOBANK
GHANA LTD<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>AKAIDOO
ENTERPRISE LTD &amp; ORS<o:p></o:p>(DEFENDANTS)<o:p></o:p>[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. BFS/128/06&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
4TH APRIL, 2016<o:p></o:p>

</div>COUNSEL: <o:p></o:p>RICHMOND
NUMBO SAAKA FOR APPLICANT<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">

DANIYAL
ABDUL KARIM FOR 3RD PARTY/RESP<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP GEORGE K. KOOMSON (J).<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;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>In this application, the 1st further 3rd
party applicant hereinafter called “applicant” prays the court for an order
staying the execution of the judgment of this court dated 13th
November, 2014, delivered by her Ladyship Barbara Ackah-Yensu, J.A. (sitting as
an additional High Court Judge) in which she stated: <o:p></o:p>‘‘In
summation, the 3rd party has proved its case and is therefore
entitled to be indemnified by the 1st further 3rd party
in the sum of USD253,161.06 or its cedi equivalent, together with interest at
the prevailing commercial rate from September, 2004 until date of final
payment.&nbsp; The 3rd party’s
claim for damages is dismissed.&nbsp; The
further 3rd party’s counter claim is hereby dismissed in its
entirety.&nbsp; Cost assessed at GHS10,000.00
each in favour of the defendant and 3rd party.’’<o:p></o:p>The main contention of the applicant is that there
is the likelihood of success of its appeal and that, if the judgment is not
stayed and the judgment debt paid to the 3rd party/respondent, there
is the likelihood that the 3rd party/respondent may not be able to
refund the judgment debt in the event the applicant wins its appeal as the 3rd
party has not been in business for a relatively long period of time and at all
times material to this suit, 3rd party has done nothing to prove
that it has resumed any business at all.<o:p></o:p>I have read the application and the affidavits with
their annexures filed by the parties herein.&nbsp;
I have also read the written submissions filed by counsel for the
parties.&nbsp; Regard has been given to the
High Court (Civil Procedure) Rules 2004 (CI47) and the Court of Appeal Rules,
CI19. Consideration has also been given to the principles governing the grant
or otherwise of applications of this nature.<o:p></o:p>I have also read the authorities cited by counsel
in the matter.&nbsp; I am of the view that
there is no dispute that the order made by her Ladyship in her judgment
referred to earlier is an executable order.&nbsp;
I do not intend to go into the merits of the appeal.&nbsp; I am of the view however that there are
arguable grounds of appeal contained in the Notice of Appeal.<o:p></o:p>Whether or not the court will order a stay of
execution depends on the facts of each case.&nbsp;
However, as a general rule, the court has the discretion to either grant
or refuse the stay of execution.<o:p></o:p>The general principles to be considered in granting
or refusing applications of this nature were discussed in the case of NANA KWASI
AGYEMAN VIII v. NANA HIMA DEKYI XIII [1982-1983] GLR 453 as follows:-<o:p></o:p>“(i)
if the court was satisfied upon any affidavit of facts proved of the conduct of
the defeated party that he was bringing the Appeal not bona fide to test the
rightness of the judgment but for some collateral purpose, the application
should be refused;<o:p></o:p>(ii)
a court should not stay execution unless there were exceptional circumstances
warranting a stay because it was well established that a successful litigant
should not be deprived of the fruits of his victory;<o:p></o:p>(iii)
where the court was satisfied that Appeal was frivolous because the grounds of
Appeal contained no merit and that there was no chance of it succeeding, it
should refuse an application for stay;<o:p></o:p>(iv)
whether the grant or refusal of the application would work greater hardship on
either party; and<o:p></o:p>(v)
That the Appeal, if successful, would not be rendered nugatory….”<o:p></o:p>In NDK F</main>