ENDURANCE OTI BOATENG AND OTHERS vs. NOBLE DREAM MICRO FINANCE LTD& 2 OTHERS [2018]DLHC9323

Date	2018-11-19
Suit No.	SUIT NO. INTS 39/2016
Citation No.	[2018]DLHC9323

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

BRIGHT OBENG MANU FOR THE CLAIMANT/APPLICANT

KWAKU YEBOAH APPIAH FOR THE PURCHASER/RESPONDENT

[2018]DLHC9323
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													<main id="main" class="content" style="min-height: 60rem" >ENDURANCE
OTI BOATENG AND OTHERS<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>NOBLE
DREAM MICRO FINANCE LTD&amp; 2 OTHERS<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<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. INTS 39/2016&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:
19TH NOVEMBER 2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>BRIGHT
OBENG MANU FOR THE CLAIMANT/APPLICANT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
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PURCHASER/RESPONDENT <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE<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:0cm;margin-bottom:.0001pt;
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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>This
is an application by the Claimant/Applicant hereinafter referred to as the
Applicant praying for an order of stay of execution in relation to the order of
the court dated 9th March, 2018 placing the purchaser/respondent in
possession of House No. Plot 8, 25th Street Atasomanso, Kumasi.<o:p></o:p>The
background to this application is that on 19th June, 2016 the
applicant’s interpleader suit was dismissed by the court. Subsequently, the
applicant filed a motion to set aside the sale of the disputed property but the
same was dismissed by the court on 18th January, 2017. The applicant
then instituted a fresh action seeking to set aside the sale for fraud but the
High Court presided over by Justice Nicholas M. C. Abodakpi dismissed the suit
on 2nd May, 2018. On 11th May, 2018 this court dismissed
the applicant’s motion for review of the order directing the Registrar to place
the respondent in possession of the property. Dissatisfied with the court’s
decision, the applicant filed another process against the 9th March,
2018 order – this time the applicant prayed the court to suspend the said
order. On 16th July, 2018 the court dismissed the application for
the order of suspension. Obviously aggrieved by the latest decision, the
applicant has filed the instant motion.<o:p></o:p>It
is the applicant’s case that the pending appeal against the order of the court
placing the respondent into possession of the property in dispute is likely to
succeed and that the balance of convenience weigh heavily in favour of the
grant of the application. According to counsel, the applicant has evinced
exceptional circumstance to warrant the grant of the application.<o:p></o:p>The
respondent is opposed to the application. It is counsel for the respondent’s
contention that the application is an abuse of the court process since the
court has dismissed similar applications brought forward by the applicant.
Counsel submitted further that the balance of hardship falls on the respondent
if the application is granted, as the respondent has spent huge sums of money
to legally acquire the property from the court.<o:p></o:p>It
is an established principle of law that where the decision of the court makes
an executable order then there can be stay of execution pending appeal. See the
case of Anang Sowah v Adams [2009] SCGLR111.<o:p></o:p>In
Standard Charted Bank (Ghana Ltd) v Western Hardwood Ltd &amp; Anor [2009]
SCGLR 196 and Merchant Bank Ghana v Similar Ways Ltd [2012]1SCGLR 440, the
Supreme Court held that the court in exceptional circumstances could in the
interest of doing justice, stay execution pending appeal against a judgement or
ruling even in situations where the said decision did not make an executable
order.<o:p></o:p>I
agree with counsel for the applicant that the application to suspend an order
of the court and an application for stay of execution are not mutually
exclusive. These applications can be filed consecutively. From the authorities
above, while an application to suspend an order of the court is synonymous with
non-executable orders, application for stay of execution is made in respect of
executable orders. In both applications, the existence of exceptional
circumstance is a key consideration.<o:p></o:p>In
dismissing the motion to suspend the orders of the court on 16th
July, 2018, I made the following pronouncement on the question of exceptional
circumstance at pages 4 and 5 of the ruling:<o:p></o:p>“In the instant case, the
applicant is not alleging a procedural breach but is rather challenging the
substantive correctness of the order through the appeal process. I do not
intend to assess the potency of the appeal but it is trite learning that the
likelihood of success of an appeal must be apparent on the face of the record
for same to be described as a special circumstance which may warrant a stay of
execution or suspension of an order of the court. This tag may prevail in
situations where there is an alleged breach of natural justice or a procedural
breach which goes to jurisdiction. In the absence of these, it is difficult to
conclude that the applicant has evinced a special circumstance by merely
filling an appeal to reverse the order to put the respondent in possession of
the disputed property.”<o:p></o:p>In
the instant application, the applicant has not demonstrated any change in
circumstance which could be described as exceptional. The same old argument has
been dangled in the face of the court. Indeed, the likelihood of success of the
appeal is not apparent on the face of the record. It must also be noted that
the applicant has not appealed against the dismissal of the interpleader suit
which led to the execution process. As observed in the 16th July,
2018 ruling, it appears the focus of the applicant is to protect the interest
of a party who is alien to the instant action. In sum, the applicant has not
evinced any special circumstance which is personal to him or wholly projects
the need for substantial justice through staying execution.<o:p></o:p>For
the foregoing reasons, the application fails and same is dismis</main>