EASTERN ALLOYS COMPANY LIMITED (PLAINTIFF) vs. CHIRANO GOLD MINES LIMITED (DEFENDANT) [2016]DLHC7363

EASTERN ALLOYS COMPANY LIMITED (PLAINTIFF) vs. CHIRANO GOLD MINES LIMITED (DEFEN... [2016]DLHC7363

Date	2016-04-15
Suit No.	SUIT NO. BDC/23/2010
Citation No.	[2016]DLHC7363

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

MR. FELIX QUARTEY WITH MR. FELIX NANA OSEI AND BERNICE QUARTEY

THE PLAINTIFF/ JUDGMENT/CREDITOR/RESPONDENT

MR. YONNEY KULENDI WITH MR. ERNEST KUSI MR. STEPHEN OBENG AND

MERCY ASARE KORANG FOR THE DEFENDANT/ JUDGMENT/DEBTOR/APPLICANT

[2016]DLHC7363
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													<main id="main" class="content" style="min-height: 60rem" >EASTERN ALLOYS COMPANY LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>CHIRANO GOLD MINES
LIMITED<o:p></o:p>(DEFENDANT)<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;
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SUIT
NO. BDC/23/2010&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:
15TH APRIL, 2016<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MR. FELIX QUARTEY WITH MR.
FELIX NANA OSEI AND BERNICE QUARTEY FOR THE PLAINTIFF/
JUDGMENT/CREDITOR/RESPONDENT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR.
YONNEY KULENDI WITH MR. ERNEST KUSI, MR. STEPHEN OBENG AND MERCY ASARE KORANG
FOR THE DEFENDANT/ JUDGMENT/DEBTOR/APPLICANT <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, 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;
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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>This court has been called upon by a motion on
notice for an order to stay the execution of the judgment of the High Court
dated the 13th October 2014 pending the determination of an appeal
lodged against a ruling of this court delivered on the 12th February
2016. The application is supported and opposed by affidavits. The applicant
proceeds under rules 271A and 28 of the Court of Appeal Rules, CI.19. <o:p></o:p>The reasons for which the applicant seeks the order
for stay of execution are set out in the supporting affidavit and it is clear
to this court that the judgment whose execution the applicant is seeking to
stay is not the subject matter of appeal as far as this application is
concerned. That is to say, the appeal is against the ruling delivered by this
court on the 12th February 2016 in which the court refused to set
aside an Entry of Judgment filed by the respondent in this matter. The appeal
for which reason this application has been brought is not against the judgment
whose execution is sought. <o:p></o:p>More importantly, the applicant has faithfully
deposed in paragraphs 10, 11, 12, 13, 14, 15 and 16 of the affidavit in support
as follows:<o:p></o:p>10. That after the close of trial this Honourable
Court delivered its judgment on the 13th of October, 2014 Coram; His
Lordship Justice I. O. AMADU TANKO J.A (sitting as an additional High Court
Judge), granting the reliefs sought by the Respondent per its amended Writ of
Summons. Exhibited hereto and marked as “Exhibit DSO 5” is a photocopy of the
judgment of this Honourable Court.<o:p></o:p>11. That being aggrieved by the judgment of this
Honourable Court dated 13th October, 2014; the Applicant on the 8th
of December, 2014 lodged an appeal against the said judgment by filing a Notice
of Appeal in the Registry of the High Court (Commercial Division), Accra.
Exhibited hereto and marked as “Exhibit DSO 6” is a photocopy of the Notice of
Appeal as filed.<o:p></o:p>12. That on 15th October 2015, the Court
of Appeal (Civil Division) Accra, Coram; Her Ladyship Justice MARIAMA OWUSU,
Justice A.M.A. DORDZIE and His Lordship Justice L.L. MENSAH JJA delivered its
judgment and dismissed the Applicant’s appeal and affirmed the judgment of the
learned trial judge. Exhibited hereto and marked as “Exhibit DSO 7” is a
certified true copy of the said judgment.<o:p></o:p>13. That being aggrieved by the Judgment of the
Court of Appeal dated 15th October, 2015; the Applicant on the 19th
of October, 2015 lodged an appeal against the said judgment by filing a Notice
of Appeal in the Registry of the Court of Appeal. Exhibited hereto and marked
as “Exhibit DSO 8” is a photocopy of the Notice of Appeal filed by the
Applicant.<o:p></o:p>14.That the Applicant on the 19th of
October, 2015 further filed an Application for Stay of Execution pending appeal
at the Court of Appeal praying that the judgment of the Court of Appeal be
stayed pending the final determination of the appeal lodged by the Applicant
against the said judgment.<o:p></o:p>15. That the application aforementioned was heard
and determined by the Court of Appeal on the 12th of November, 2015
Coram; His Lordship Aduama Osei J.A.<o:p></o:p>16.That the Court of Appeal in the ruling of 12th
November, 2015 granted the application for stay of execution pending appeal in
part by staying execution of 50% of the judgment debt and ordering that the
Applicant pays to the Respondent the other 50% of the judgment debt. Exhibited
hereto and marked as “Exhibit DSO 9” is a certified true copy of the ruling of
the Court of Appeal.<o:p></o:p>The applicant has also deposed in paragraph 25 of
the supporting affidavit that:<o:p></o:p>25.That the Applicant had in a previous application
for Stay of Execution pending appeal before the High Court (Commercial Division),
Accra, filed on the 9th of December, 2014 canvassed arguments disputing the
correctness of the interest sum as endorsed on the Respondent’s Entry of
Judgment but the High Court in granting the Applicant’s application for stay of
execution pending appeal did not rule on the propriety or otherwise of the
Respondent’</main>