ADDO ATUA & CO vs. AFRICAN AUTOMOBILE LTD [2017]DLCA4413

Date	2017-02-09
Suit No.	CIVIL APPEAL SUIT NO: H3/102/2017
Citation No.	[2017]DLCA4413

P. K. GYAESAYOR J.A

FRANCISCA S. BOATENG WITH FLORA A. AMPONSAH FOR

PLAINTIFF/RESPONDENT/RESPONDENT

VIVIAN TETTEH FOR DEFENDANT/APPELLANT/APPLICANT

[2017]DLCA4413
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													<main id="main" class="content" style="min-height: 60rem" >ADDO ATUA &amp; CO<o:p></o:p>&nbsp;(PLAINTIFF/RESPONDENT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>AFRICAN AUTOMOBILE LTD&nbsp; <o:p></o:p>(DEFENDANT/APPELLANT/APPLICANT)<o:p></o:p>[COURT OF APPEAL, 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
APPEAL SUIT NO:&nbsp; H3/102/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 9TH FEBRUARY, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FRANCISCA S. BOATENG WITH
FLORA A. AMPONSAH FOR PLAINTIFF/RESPONDENT/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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P.
K. GYAESAYOR J.A<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><o:p>&nbsp;</o:p>GYAESAYOR,
JA<o:p></o:p>The judgment the subject
of this application was delivered on 17/11/2015. From the entry of judgment
filed, the plaintiff/respondent is claiming a total sum of Twenty One Thousand,
Six Hundred and Sixty Five Dollars and Fifty Cent (US21,665.59) and Ninety- six
Million and Ninety-eighty Thousand, Two Hundred and Forty-two Cedis and fifty
pesewas (Gh¢96,098,242.50) being legal fees in respect of legal work done for
the applicant.<o:p></o:p>An application to stay the
judgment was refused in the High Court and thus leading to the present
application.<o:p></o:p>The applicant avers that
the appeal is ripe for hearing and there is a real likelihood of the appeal succeeding
and that any judgment in their favour will be rendered nugatory.&nbsp; It has also been argued that the plaintiff/respondent
cannot refund the judgment debt in the event of losing the appeal.<o:p></o:p>In court the applicant
urged upon me to grant the application since form 6 has been served and the
appeal is ripe for hearing. It is also the submission of the debtor that he was
denied the opportunity to cross-examine the plaintiff and also to open his
defence.&nbsp; As it is, the only evidence on
record is that of the plaintiff/respondent.<o:p></o:p>On the other hand it has
been argued by plaintiff/respondent that judgment was delivered as far back as
November 2015 but the defendant is yet to pay anything.&nbsp; They are in a position to refund the amount
in the unlikely event of losing the appeal.<o:p></o:p>Stay of execution shall be
granted if there are reasonable grounds for doing so.&nbsp; It is an exercise of judicial discretion to
keep the wheels of justice evenly balanced in matters pending on appeal. <o:p></o:p>On record is a notice of
appeal filed by the defendant/debtor indicating his intention to appeal.<o:p></o:p>It is obvious from
available records that defendant at the trial was denied the opportunity to
cross-examine the plaintiff and was also denied the opportunity to open his
defence even though according to defendant he sought permission on medical
grounds.<o:p></o:p>Other grounds of appeal
have been canvassed in the notice of appeal filed.&nbsp; It is not the duty of the court to determine
the merits of the case at this stage since it is a matter to be decided at the
hearing of the substantive appeal. Stay of execution shall be granted if
arguable points of law are raised. The reasons for denying the defendant/appellant
the opportunity to cross-examine the plaintiff and to open his defence are not
clear except that the trial judge said the defendant had the burden to impeach
the plaintiff evidence which they failed to do. This allegation by the defendant
is serious and needs to be clarified at the court of appeal.<o:p></o:p>In addition, the court
would have to determine whether the procedure adopted in issuing the writ in
respect of solicitors fees under the legal profession Act, 1960 (Act 32) was
rightly followed.&nbsp; My view is that there
are several areas of controversy to be determined on appeal and in the interim
the execution of the judgment must be stayed.<o:p></o:p>The court of appeal will also
determine whether</main>