ANTONIO OLIMPIO SANTOS FELIX vs. GIOVANNI ANTONELLI AND BIGLEBB CONST. & CRUSHING LTD [2017]DLSC4569

ANTONIO OLIMPIO SANTOS FELIX vs. GIOVANNI ANTONELLI AND BIGLEBB CONST. & CRUSHI... [2017]DLSC4569

Date	2017-07-20
Suit No.	CIVIL MOTION NO. J8/99/2017
Citation No.	[2017]DLSC4569

APPAU JSC

STANLEY ADJEI FOR THE DEFENDANTS/APPELLANTS/APPLICANTS

DANIEL SEGU OSEI FOR THE PLAINTIFF/RESPONDENT/REPONDENT

[2017]DLSC4569
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													<main id="main" class="content" style="min-height: 60rem" >ANTONIO OLIMPIO SANTOS
FELIX<o:p></o:p>(PLAINTIFF/RESPONDENT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>GIOVANNI ANTONELLI AND
BIGLEBB CONST. &amp; CRUSHING LTD<o:p></o:p>(DEFENDANTS/APPELLANTS/APPLICANTS)<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;
padding:0in 0in 1.0pt 0in">

CIVIL MOTION NO. J8/99/2017&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; DATE: 20TH JULY, 2017<o:p></o:p>

DANIEL
SEGU OSEI FOR THE PLAINTIFF/RESPONDENT/REPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>APPAU, JSC:-<o:p></o:p>The
application before me is for the suspension of the order of the Court of Appeal
dated 20th July 2016 pending the determination of an appeal filed against same
on 1st March 2017. The applicants filed the appeal pursuant to special leave a
three-member panel of this Court granted them on 23rd February 2017 after a
single justice of the Court had refused to do so. <o:p></o:p>The
genesis of this application is that the respondent entered into a Memorandum of
Understanding (MoU) with the 1st applicant on 27th February 2015 to become a
shareholder in the 2nd applicant company. Based on the MoU, the respondent, in
August 2015, made a shipment of machinery, equipment and vehicles from Angola
to the 2nd applicant in Ghana. However, before the MoU could be translated into
an agreement between the parties with regard to the respondent's actual
shareholding in the 2nd applicant/company, a misunderstanding arose between the
respondent and the 1st applicant. The respondent contended that the 1st
applicant had misrepresented certain facts to him about the real status of the
2nd applicant so he was no more interested in the acquisition of the shares as
agreed upon in the MoU. On the 17th day of February 2016, the respondent
instituted an action against the applicants claiming about six reliefs. Among
the reliefs were:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that the MoU dated 27th
day of February was vitiated by the fraudulent misrepresentation of the 1st
applicant; <o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that the respondent is
discharged from all obligations and/or liabilities arising from the said MoU;
and<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that the respondent is
the owner of the equipment and machinery mentioned in the indorsement of the
writ and an order for the recovery of same from the applicants.<o:p></o:p>Subsequent
to the issuance of the writ of summons, the respondent applied to the trial
High Court for interim preservation of the equipment, machinery and vehicles,
in question. The trial High court, after hearing from both parties, granted
respondent’s application for interim preservation to protect the items from
wear and tear, pending the final determination of the substantive matter. This
was on the 26th day of April 2016. <o:p></o:p>On
the very day that the trial court delivered its ruling, the applicants filed an
interlocutory appeal against it to the Court of Appeal. They then filed a
motion for stay of execution and/or, suspension of enforcement of the interim
preservation order pending the hearing of the appeal. The High court refused to
grant the application. The applicants, in compliance with the rules, repeated
the application before the Court of Appeal but the Court of Appeal, per a
single justice, also refused the application. The Court of Appeal, per the
single justice, supported the view of the trial High court judge that the
ownership of the machinery and equipment and their value were in serious
contention so the end of justice would be better served if same were preserved
pending the hearing of the substantive suit before the trial High Court. The
applicants subsequently applied to the full bench of the Court of Appeal per
article 138(b) of the Constitution, to discharge or reverse the order of the
single justice and to order for stay of execution and or suspension of
enforcement of same pending the determination of the appeal before it. The full
bench of the Court of Appeal refused to discharge the order made by the single
justice and affirmed his decision. According to the court, the applicants did
not demonstrate any exceptional circumstances to warrant the discharge or
reversal of the single justice’s order.<o:p></o:p>Aggrieved
by the ruling of the Court of Appeal, the applicants filed an application
before this Court for special leave to appeal and for stay of execution and, or
suspension of enforcement of the Court of Appeal ruling pending the
determination of the application for special leave to appeal. This Court, per
Anin-Yeboah, JSC (sitting as a single justice), refused the two-pronged
application for special leave to appeal and suspension of the ruling of the
Court of Appeal as prayed. The applicants then filed a reconsideration
application before a three-member panel of this court per article 134 (b) of
the Constitution, 1992 praying for the discharge or reversal of the single
justice’s decision. On 23rd February 2017, this Court, coram Adinyira (Mrs.),
Dotse and Benin, JJSC, reversed the decision of the single justice dated 4th
November 2016 and granted applicants special leave to appeal with the order
that the appeal be filed within seven (7) days from the date of the ruling. The
applicants filed their notice of appeal on the 1st day of March 2017. They
listed as many as nine (9) grounds of appeal. Since my jurisdiction in this
application does not extend to the determination of the merits of the appeal
before this court, I prefer to seal my mouth to making any comments on the
propriety or otherwise of the said grounds of appeal. In that wise, I refuse to
reproduce them here.<o:p></o:p>Having
filed their appeal against the ruling of the Court of Appeal, the </main>