ECOBANK GHANA LIMITED vs. ALUMINIUM ENTERPRISE LTD. [2017]DLSC2523

Date	2017-03-23
Suit No.	CIVIL APPEAL NO. J7/5/2015
Citation No.	[2017]DLSC2523

AKUFFO (MS) JSC PRESIDING

YEBOAH JSC

BENIN JSC

KOFI SOMUAH FOR THE DEFENDANT/RESPONDENT/APPLICANT

ASONABA DAPAA (MS) FOR THE PLAINTIFF/APPELLANT/ RESPONDENT

[2017]DLSC2523
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													<main id="main" class="content" style="min-height: 60rem" >ECOBANK
GHANA LIMITED<o:p></o:p>vs.<o:p></o:p>ALUMINIUM
ENTERPRISE LTD.<o:p></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 APPEAL NO. J7/5/2015&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: 23RD MARCH, 2017<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KOFI
SOMUAH FOR THE DEFENDANT/RESPONDENT/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ASONABA
DAPAA (MS) FOR THE PLAINTIFF/APPELLANT/ RESPONDENT<o:p></o:p>

</div>CORAM: <o:p></o:p>AKUFFO (MS),
JSC PRESIDING YEBOAH, JSC AND BENIN, JSC<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">JUDGEMENT<o:p></o:p>

</div>BENIN, JSC:- <o:p></o:p>This
is an application on notice brought by the Aluminium Enterprise Limited, the defendant/respondent/applicant
against Ecobank Ghana Ltd, the plaintiff/appellant/respondent praying for an
order reversing the decision of this court presided over by a single judge
dated 1st December 2016. Aluminium Enterprise is hereafter called
the Applicant and Ecobank Ghana is called the Respondent.<o:p></o:p>The
facts that have brought the parties to this court are these. The applicant
obtained judgment against the respondent at the High Court, Accra for the
payment of a liquidated sum. The respondent has appealed against that decision
to the Court of Appeal which is yet to hear and determine same. The respondent
applied to the High Court for a stay of execution pending appeal. The High
Court granted a partial stay by deciding that the respondent should pay a third
of the judgment debt to the applicant, whilst the remaining two-thirds should
await the outcome of the appeal. <o:p></o:p>The
respondent believed the partial grant of stay amounted to a refusal so they
repeated the application before the Court of Appeal. The main thrust of their
argument was that should they succeed on appeal the judgment would be rendered
nugatory since the applicant would not be able to refund the sum of money. The
argument did not find favour with the Court of Appeal presided over by a single
judge so they were denied the prayer sought. The respondent took the matter
before the duly constituted bench of the Court of Appeal but again they were
not successful. <o:p></o:p>Being
dissatisfied with the decision of the duly constituted court, the respondent
applied to this court for special leave to appeal against same; the court
granted their request. They filed the appeal to this court on the main ground
that the Court of Appeal did not take relevant matters into consideration in
arriving at their decision to deny the prayer for stay of execution.<o:p></o:p>Thereafter
the respondent filed an application before the Court of Appeal seeking an order
suspending the order or decision affirming the partial stay of execution, or
alternatively to stay proceedings consequent upon the orders of the Court of
Appeal. The application was dismissed by the said court, on ground that no
exceptional circumstances had been disclosed to warrant the exercise of its
discretion in their favour.<o:p></o:p>The
respondent repeated the application for the suspension of the Court orders or
stay of proceedings before this court. This court, presided over by a single
judge, granted the application in these terms:<o:p></o:p>“I
think it is fair that the order by the Court of Appeal confirming the
conditional grant of stay of execution by the High Court is suspended pending
the determination of the appeal before this Court against the said order.
Application is accordingly granted. No order as to costs.”<o:p></o:p>The
present application has been brought under article 134(b) of the 1992
Constitution. It provides:<o:p></o:p>134. A single Justice of Supreme Court may
exercise power vested in the Supreme Court not involving the decision of the
cause or matter before the Supreme Court, except that-<o:p></o:p>(b)
&nbsp;&nbsp;in civil matters, any order, direction or
decision made or given under this article may be varied, discharged or reversed
by the Supreme Court, constituted by three Justices of the Supreme Court.<o:p></o:p>The
applicant is saying that the order by the Court of Appeal affirming the High
Court’s grant of a conditional stay of execution was not an executable order.
For that reason it is wrong for this court to suspend such an order. They
therefore prayed that the said order of the single judge of this court be
reversed by virtue of article 134(b) of the Constitution. This constitutional
provision merely prescribes what the three-judge panel may do after hearing an
application brought by a party who is aggrieved with the decision of a single
judge. It does not state under what conditions or in what situations the second
panel may consider in making the determination to reverse, discharge or vary
the decision or order of a single judge. Should the three-member panel consider
or apply the conditions applicable to an appeal or a review or a combination of the two?
It is clear to us that an application such as this cannot be treated as an
appeal since the full record of appeal will not have been placed before the
court; moreover the decision of a single judge, and for that matter a
three-member panel, cannot involve a substantive cause</main>