SKYLIMIT STRUCTURE BUILDERS LTD vs. TULLOW GHANA LTD [2017]DLSC5194

Date	2017-07-13
Suit No.	CIVIL MOTION NO. J/8/109/2017
Citation No.	[2017]DLSC5194

PWAMANG JSC

MINKAH PREMO FOR THE DEFENDANT/APPELLANT/APPLICANT

THADDEUS SORY FOR THE PLAINTIFF/RESPONDENT/RESPONDENT

[2017]DLSC5194
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													<main id="main" class="content" style="min-height: 60rem" >SKYLIMIT STRUCTURE BUILDERS LTD<o:p></o:p>(PLAINTIFF/RESPONDENT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>TULLOW GHANA LTD<o:p></o:p>(DEFENDANT/APPELLANT/APPLICANT)<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
MOTION NO. J/8/109/2017&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 13TH JULY, 2017<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MINKAH
PREMO FOR THE DEFENDANT/APPELLANT/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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THADDEUS SORY FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT<o:p></o:p>

</div>CORAM: <o:p></o:p>PWAMANG
JSC SITTING AS A SINGLE JUDGE<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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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>PWAMANG, JSC.<o:p></o:p>Before
me is an application pursuant to section 4(2) of the Courts Act, 1993 (Act 459)
praying for special leave to appeal against the interlocutory decision of the
Court of Appeal refusing a repeat application for stay of execution pending
appeal dated 24th May, 2017. <o:p></o:p><o:p>&nbsp;</o:p>The background to this
application is as follows: On 14th December, 2016 the High Court,
after a full trial, gave judgment against the Plaintiff/Appellant/Applicant/Applicant,
to be referred to as the Applicant, to pay various sums of money to the
Defendant/Respondent/Respondent/Respondent, hereafter referred to as
Respondent. The High Court found the amounts due on account of the applicant's
cancellation of a tender process in which the respondent participated. <o:p></o:p>Applicant being aggrieved
by the judgment appealed against it and applied to the High Court for an order
for stay of execution pending the determination of the appeal by the Court of
Appeal. By a reasoned ruling dated 9th February, 2017 the High Court
dismissed the application for stay of execution. Applicant filed another motion
praying the High Court to review its refusal of the application for stay but
that too was dismissed for reasons stated in the court's ruling dated 7th
March, 2017. Thereafter, Applicant repeated its initial motion on notice for
stay of execution pending appeal before the Court of Appeal and it was listed
before a single Judge. Respondent vehemently opposed the application. The
applicant filed a supplementary affidavit and offered to post a bank guarantee
as security to satisfy the judgment debt if it lost the appeal but the single
judge in his reasoned ruling dated 27th March, 2017 did not consider
that offer equitable and rather granted the application for stay on terms by
directing that fifty percent of the judgment debt be paid to the Respondent. Being
dissatisfied with the conditions of the grant, applicant applied to the regular
panel of the Court of Appeal to vary the decision of the single Judge. On 24th
May, 2017, the Court of Appeal duly constituted gave its ruling dismissing the
application. The Court held as follows:<o:p></o:p>“The essence of what the applicant
wants us to do is to substitute our discretion for that of the single judge. We
do not think that was the intendment of article 138 (b) of the Constitution. In
our view article 138(b) is only applicable when the applicant is able to
demonstrate that the single judge either abused or misused his/her power of
discretion under this article. The applicant failed to demonstrate this.
Besides the applicant put before us an (sic) application that seems to be quite
different from what was put before the single judge. That being the case the
application does not conform to the law and is therefore incompetent. The
application is therefore hereby dismissed.”<o:p></o:p>It is against this
decision that the applicant is seeking special leave to appeal to the Supreme
Court. Section 4 (2) of Act 459 is a repetition of Article 131 (2) of the 1992
Constitution and has been considered in a member of decisions of this court
which in sum state three grounds upon which the court may grant special leave
to appeal. These are; <o:p></o:p>(a) Where there was a
prima facie error of law on the face of the record; or<o:p></o:p>(b) A general principle of
law had rising for the first time; or<o:p></o:p>(c) A decision of the
Supreme Court on the point sought to be appealed against would be advantageous
to the public.<o:p></o:p>Apparently with these
grounds in mind, the applicant based its application on a number of alleged
errors of law set out in the motion paper and supporting affidavit. In arguing
the application counsel for applicant relied on a number of cases decided by
this court on the scope of article 138(b) of the Constitution. <o:p></o:p>At the outset, let me
point out that the applicant has made references to alleged errors of law
committed by the Court of Appeal duly constituted with regard to C.I 100 and
section 123 of the Companies Act, 1963 (Act. 179) but in the ruling of the
court which I have reproduced above, no reference was made to those statutes so
those references do not quality for consideration as prima facie errors
apparent on the face of the record. The relevant legal point in its application
and submissions before me is the contention that the court of Appeal
misconstrued its jurisdiction under article 138 (b) or section 12 (b) of Act
459 pursuant to which it applied for the order of variation of the decision of
the Single Judge. Paragraph 20 of the affidavit in support sums up applicant’s
submission on this point. It states;<o:p></o:p>“20. That I am advised and verily
believe same to be true that the misconception of the nature and scope of the
substantive special power of variation, discharge or reversal in a bu</main>