ALFRED FREEMAN ANKAH vs. GOLDFIELD GHANA LTD [2018]DLHC10738

Date	2018-12-05
Suit No.	SUIT NO: BC/619/14
Citation No.	[2018]DLHC10738

HIS LORDSHIP JUDTICE EMMANUEL KWASI MENSAH

MATILDA DONKOR FOR DOE TSIKATA FOR DEFENDANT/APPLICANT

ALEXANDER FOR THE PLAINTIFF/RESPONDENT

[2018]DLHC10738
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													<main id="main" class="content" style="min-height: 60rem" >ALFRED FREEMAN ANKAH<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>GOLDFIELD GHANA LTD<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT,
ACCRA]<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;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO: BC/619/14&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;&nbsp;&nbsp;
&nbsp;DATE: 5TH DECEMBER,
2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MATILDA DONKOR FOR DOE TSIKATA FOR
DEFENDANT/APPLICANT<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;">

ALEXANDER FOR THE PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP JUDTICE EMMANUEL
KWASI MENSAH<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>&nbsp;On the 25th June, 2018, learned counsel
for the defendant judgement debtor applicant moved this court for an order to
stay the execution of the judgement of the court dated 28th
February, 2018. The application has the support of a twelve (12) paragraphed
affidavit and a three (3) paragraphed supplementary affidavit filed on the 6th
April, 2018 respectively. <o:p></o:p>That they have also annexed to the first affidavit
filed on the 6th April, 2018 a copy of the judgement and the notice
of Appeal and also attached to the 2nd affidavit is additional
grounds of Appeal. It is the case of the applicant per counsel that on the
perusal of the grounds of appeal, it reveals so many errors, including the
award of damages for causes of action not pleaded. That should the application
be refused and the applicant succeeds with the appeal in the court of Appeal,
their victory up there will be rendered nugatory. <o:p></o:p>Further that the plaintiff/respondent in his
evidence to the court, differently constituted indicated that he is unemployed
and that if the execution of the judgment is not stayed and the sum of
GHS320,000.00 is paid to the respondent, it is most unlikely that he would be
able to refund the money if the appeal is successful. That the defendant
judgement debtor applicant in this case is the Ghana Subsidiary of a Global
mining company, a reputable and internationally recognised company listed on
various stock exchanges, and so there will be able to pay the judgment debt in
the unlikely event that the court of Appeal upholds the High Court’s judgment. <o:p></o:p>On the balance of convenience, it is the
applicant’s case per counsel that the defendant is more likely to suffer
irreparable harm or hardships if the application is refused. That the applicant
is willing and is ready to offer a bond in the form of a Bank guarantee with
its bankers as security for payment of the judgement debt. Reacting to the
paragraph 9 of the affidavit in opposition, filed on the 17th April,
2018, it is the case of the applicant that its business is not going down as
the plaintiff/respondent alleged, and that as a company, the defendant is
entitled under the labour Act to declare redundancy as a result of
re-organization of its business and this does not suggest that their business
is on the downward trend. Further that in paragraphs 10-12, the respondent
stated in the affidavit in opposition that it is solvent, and will be able to
refund monies paid to it by the applicant, and that beyond this mere statement
the plaintiff/respondent presents no evidence of his solvency and the ability to
refund the money if paid. Further, it is the applicants view that if the
plaintiff/respondent says he is solvent, then she should be able to finance the
cost of his ear treatment for now, and that one of their main grounds of appeal
is that the plaintiff/respondent is not entitled to be paid by the defendant
for his further treatment. It was prayed that the application be granted. <o:p></o:p>Per the records, the plaintiff/respondent filed a
(24) paragraphed affidavit in opposition on the 17th April, 2017. In
open court and in responding to the submission of applicants per counsel on the
18th October, 2018, it is the case of the plaintiff/respondent per
counsel that the application is only a ploy to delay the course of justice
because from the applicant’s own showing, they do not intend to prosecute their
appeal. That as at the 18th October, 2018, the Notice of Appeal had
not been served on the plaintiff/respondent personally and that they only
became aware of the Notice of Appeal when it was exhibited in the affidavit in
support of the instant application. <o:p></o:p>Further, that the record of Appeal has also not
been compiled. Again, that the appeal itself is a failure looking for when to
happen because for the 28 page judgment, there are 13 grounds of appeal. That
there is no dispute that the plaintiff/respondent has an ear impairment which
according to him per counsel is deteriorating as the medical reports exhibits
AF1 and AF2 thereto show that it is&nbsp;
irreversible. It was further argued that the balance of hardships,
should the application be refused weighs on the plaintiff /respondent. Again
that the respondent is a manager at Kings University College and has been with
the applicant company for 16 years and should therefore not be denied the
fruits of his success in court. It was prayed that the application be refused.<o:p></o:p>In the instant application what appears to be
stated as special circumstances are:<o:p></o:p>1.