C.C. W. LIMITED vs ACCRA METROPOLITAN ASSEMBLY [2017]DLHC16170

Date	2017-09-20
Suit No.	SUIT NO: FTC17/2002
Citation No.	[2017]DLHC16170

HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO

MS. AKAWARI A. ATENDEM

MR. AKRONG MENSAH

MR. TONY LITHUR

KWADWO ASARE KENA

[2017]DLHC16170
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													<main id="main" class="content" style="min-height: 60rem" >C.C. W. LIMITED.<o:p></o:p>vs.<o:p></o:p>ACCRA METROPOLITAN
ASSEMBLY<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>&nbsp;<div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT NO: FTC17/2002&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 20TH SEPTEMBER, 2017<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>MS.
AKAWARI A. ATENDEM WITH MR. AKRONG MENSAH FOR THE <o:p></o:p>DEFENDANT/JUDGMENT
DEBTOR/APPLICANT - PRESENT <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

MR.
TONY LITHUR WITH KWADWO ASARE KENA FOR THE PLAINTIFF/JUDGMENT DEBTOR/RESPONDENT
– PRESENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP JUSTICE KWEKU T.
ACKAAH-BOAFO<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>Introduction:
<o:p></o:p>&nbsp;[1] This
is an application by Defendant/Appellant/Applicant herein praying that the
execution of the Judgment of this Court differently constituted dated July 21,
2017 be stayed pending the determination of the appeal filed at the Court of
Appeal on August 24, 2017. The application has been brought on the grounds inter
alia that the Defendant who is dissatisfied with the judgment of the High
Court presided over by Her Ladyship Justice Novisi Aryene has filed a Notice of
Appeal and the appeal raises substantial issues of law and has a very bright
chance of success.<o:p></o:p>[2] The
grounds upon which the instant application is premised are catalogued in the
supporting sworn affidavit of Victoria Adotey, Assistant State Attorney of the
Civil Division of the Attorney-General’s Department accompanying the
application paper. The thrust of the Defendants/Applicants case is that if the
execution is not stayed and the Court of Appeal enters judgment eventually in
favour of the Applicant, the appeal would have been rendered nugatory because
the Plaintiff/Respondent would have carried out the execution already and the
Plaintiff/Respondent would not be in a position to refund the money. Further,
the Applicant contends that the Defendant/Appellant/Respondent would suffer
great hardship as a state institution because “it would not be in a position to
discharge its statutory function for the general public, taking into account
the magnitude of the amount”. On the other hand, the Defendant/Applicant says
the Respondent would always be able to enforce its judgment if the appeal goes
in its favour.<o:p></o:p>Arguments
in Support of Application:<o:p></o:p>[3]
Arguing in support of
the application learned counsel, Ms. Akawari Atendem referred to the
depositions in the affidavit and submitted that the Court did not have
jurisdiction to entertain the application for leave to levy execution of
US$9,201,815.29 because the claim for foreign exchange differentials is alien
to the earlier judgments of both the High Court and the Supreme Court. The
gravamen of the argument according to learned Counsel is because at “all
material times, the judgment debt had been converted into cedis and the
interest rate between 25% and 29% had been applied to it from 2001 to date of
payment or the date the judgment debts were compromised”. To learned Counsel,
the judgment should not have remained a dollar judgment because the parties agreed
to the interest pegged at the above stated interest rates from 2001 and
therefore the debt changed. <o:p></o:p>&nbsp;[4] Miss
Atendem further submitted that it was erroneous for the Court to order that the
sum of US$9,201,815.29 awarded be paid jointly and severally by the Applicant
and the Government of Ghana when the Government of Ghana was never a party to
the earlier suit. According to counsel, the appeal raises real issues of law
and fact and is very likely to succeed. Therefore, there is the need for the
judgment to be stayed. Learned Counsel further submitted that the judgment was
based on letters written by the former Deputy Attorney General and therefore
the import of the judgment is that the Court allowed execution to be carried
out based on an advisory letter contrary
to Order 43 Rule 11 of the High Court Civil Procedure Rules,
(2004) C.I. 47. To learned Counsel therefore the judgment entered is
not supportable in law<o:p></o:p>[5]
Counsel further
submitted that the Attorney General and/or the Government of Ghana have never
been parties to the suit earlier litigated in the High Court or the Supreme
Court. Counsel said even though the earlier judgment debt was paid from the
consolidated fund it did not make the government a party. Learned Counsel also
submitted that the AMA is a body corporate with the capacity to sue and be sued
and it was the reason why the Deputy Attorney General in his letter advised it
to pay the debt. <o:p></o:p>&nbsp;[6]
Counsel referred to
the case of JOSEPH v. JEBEILLE [1963] 1 GLR 387, S.C. and submitted that
should the judgment not be stayed and the appeal is successful same shall be
rendered nugatory. Counsel also referred to the case of ASUMADU-SAKYI. II v.
OWUSU AND OTHERS [1979] GLR 423-428 for the submission that the Respondent
would not be able to refund the money if paid out before the appeal is heard. <o:p></o:p>&nbsp;[7] Concluding,
Counsel submitted and reiterated that</main>