GHANA COMMERCIAL BANK vs. EASTERN ALLOYS COMPANY LTD [2016]DLSC5615

Date	2016-11-17
Suit No.	CIVIL MOTION NO: J8/90/2016
Citation No.	[2016]DLSC5615

PWAMANG J.S.C

OSAFO BUABENG WITH HIM STEPHEN CHARWAY FOR THE APPLICANT.

MRS. REBECCA BOAKYE WITH HER MISS. JANE ADDO FOR THE RESPONDENT

[2016]DLSC5615
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													<main id="main" class="content" style="min-height: 60rem" >GHANA COMMERCIAL BANK<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>EASTERN ALLOYS COMPANY
LTD<o:p></o:p>(DEFENDANT/APPLICANT)<o:p></o:p><o:p>&nbsp;</o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL MOTION NO: J8/90/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 17TH
NOVEMBER, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>OSAFO BUABENG WITH HIM
STEPHEN CHARWAY FOR THE APPLICANT.&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MRS.
REBECCA BOAKYE WITH HER MISS. JANE ADDO FOR THE RESPONDENT.<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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PWAMANG,
J.S.C. SITTING AS A SINGLE JUSTICE OF THE SUPREME COURT&nbsp; <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>PWAMANG,
JSC.<o:p></o:p>This is an application by
the Defendants/Judgment Debtors/Appellants/Applicants, hereinafter referred to
as “the Applicants” praying for an order of stay of proceedings under the
judgment of the Court of Appeal dated 17th December, 2015 pending
the determination of an appeal they have lodged in this court.&nbsp; The background to this application is that on
24th May, 2006&nbsp; the Plaintiff/Judgment
Creditor/ Respondent/ Respondent, to be referred to as “the Respondent”,
obtained judgment in the High Court, Accra against the Applicants for payment
of various sums of money owed &nbsp;in respect
of a loan taken from the &nbsp;Respondent bank.
Respondent went into execution, attached and sold the factory premises of the
Applicant at an auction. The factory building was bought by the Word Prayer
Centre. Applicant filed several motions to set aside the execution but failed.
It would appear that the purchaser at the auction subsequently was able to recover
possession of the premises and removed the plant and machinery of the Applicant
therefrom. Then on 20/3/2012 Applicant filed yet another motion in the High
Court seeking to set aside the auction and for its machinery to be placed back
in the factory premises. That motion was based on a number of grounds alleging
procedural breaches which the Applicants claimed were fundamental and had the
effect of nullifying the auction. The main breach complained of by applicants
was that by the provision of Order 44
Rules 2(3) and (4) of the Civil Procedure Rules 2004, C.I. 47 the
Respondent ought to have first sold its moveable properties and if that was not
sufficient to liquidate the judgment debt, it is only then that it could
lawfully levy execution against its immoveable property.&nbsp; Applicant contented that that breach of made the
auction illegal and void and same could be set aside at any time.&nbsp; Respondent resisted the motion but, in a 24-page
ruling, the High Court granted the motion and set aside the auction.<o:p></o:p>Respondent being obviously
aggrieved, appealed against that ruling and the Court of Appeal allowed the
appeal, set aside the decision of the High Court and confirmed the Certificate
of Purchase that had been issued to the purchaser. Applicants have appealed
against the judgement of the Court of Appeal and is praying that the ruling of
the High Court be restored. Applicants applied to the Court of Appeal for a
stay of execution of its judgement and the application was granted by a Single
Justice but his ruling was reversed by the Court of Appeal duly constituted on
the ground that its decision in the substantive appeal did not contain an
executable order. Applicant has now filed this motion praying for stay of
proceedings under the judgement of the Court of Appeal pending the final determination
of their appeal by this Court. <o:p></o:p>To my understanding, the
Applicant filed the present motion instead of the usual motion for stay of
execution in view of the decisions of this court to the effect that where a
judgement does not grant any executable relief or make any executable order
then there can be no stay of execution pending an appeal. See the case of Anang Sowah v Adams [2009] SCGLR111.<o:p></o:p>However in Standard Charted Bank (Ghana Ltd) v Western
Hardwood Ltd &amp; Anor [2009] SCGLR
196 this court made a distinction between stay of execution and stay of
proceedings under the decision appealed against as provided for in Rule 20 (1)
of the Supreme Court Rules, 1996(C.I.16). The court speaking through the inimitable
Atuguba JSC &nbsp;said as follows at page 200
of the report;<o:p></o:p>“In this regard we would, in this
modern era of functional or purposive justice liberally interpret the word
proceedings in rule 20(1) as referring to any steps that are required or are
necessitated, and not merely occasioned, by the judgment appealed from.”<o:p></o:p>In that case the court
held that in exceptional circumstances it could, in the interest of doing
justice, stay proceedings of execution pending a</main>