SETHI BROTHERS GHANA LIMITED (PLAINTIFF) vs. REGENCY ALLIANCE INSURANCE LIMITED (DEFENDANT) [2019]DLHC7142

SETHI BROTHERS GHANA LIMITED (PLAINTIFF) vs. REGENCY ALLIANCE INSURANCE LIMITED... [2019]DLHC7142

Date	2019-04-18
Suit No.	SUIT NO: CM/0216/2016
Citation No.	[2019]DLHC7142

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

AKOSUA G. DUAMROH ESQ. FOR DEFENDANT/APPLICANT.

THEOPHILUS KPORVIE ESQ. FOR GODWIN ADJEI GAMFI ESQ. FOR PLAINTIFF/ RESPONDENT.

[2019]DLHC7142
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													<main id="main" class="content" style="min-height: 60rem" >SETHI BROTHERS GHANA
LIMITED<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>REGENCY ALLIANCE
INSURANCE LIMITED<o:p></o:p>(DEFENDANT)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: CM/0216/2016&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 18TH APRIL
2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p>AKOSUA G. DUAMROH ESQ.,
FOR DEFENDANT/APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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THEOPHILUS
KPORVIE ESQ., FOR GODWIN ADJEI GAMFI ESQ., FOR PLAINTIFF/ RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<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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</div>The
present application seeks an order of this court to set “aside the garnishee
order granted on the 26th March 2019”. The application is brought
under the inherent jurisdiction of the court.<o:p></o:p>On
the 22nd day of June 2018, this court entered judgment in favour of
the plaintiff/respondent against the defendant/applicant and ordered certain
sums of money to be paid by the defendant to the plaintiff. The defendant filed
an appeal against the said judgment to the Court of Appeal and later, filed an
application before this court, for the stay of execution of the judgment
delivered. The said application was heard by this court which granted same on
terms: that 30% of the judgment sum plus the costs awarded be paid to the
plaintiff within a certain period of time. Viewing the grant as a refusal, the
applicant repeated the application before the Court of Appeal which, on the 19th
November 2018, varied the order of this court by ordering that 15% of the
judgment sum and costs be paid by the applicant within a period of 30 days from
the date of the order of the Court of Appeal.<o:p></o:p>Not
satisfied, the applicant filed an appeal against the ruling of the Court of
Appeal and, in the meantime, an application for stay of execution pending
appeal before the Court of Appeal was dismissed by that court on the 11th
February 2019. The applicant then filed a “notice of motion for stay of
proceedings pending appeal before the Supreme Court.<o:p></o:p>Before
the hearing of the application for stay of proceedings pending appeal before
the Supreme Court however, the respondent came to this very court and obtained
a garnishee order nisi against the accounts of the applicant held with certain
banks. It is this garnishee order nisi that triggered the instant application
in which the applicant seeks to set aside the garnishee order nisi for the sole
reason that, at the time that order was made by this court, the applicant had a
motion pending before the Supreme Court and that if the pendency of the said
motion, which had been served on the respondent, had been brought to the notice
of this court, the court would not have granted the garnishee order nisi.<o:p></o:p>The
respondent in reply referred to certain authorities and write ups and submitted
that the application before the Supreme Court is for the stay of proceedings and
that what took place before this court in respect of the order for the
garnishee nisi was a step in the execution of the judgment and that
that was not affected by the application for stay of proceedings that was
pending before the Supreme Court.<o:p></o:p>I
have considered very carefully the distinction which counsel for the respondent
sought to draw between an application for stay of proceedings and an
application for stay of execution and I think that that distinction does not
hold in the instant matter. Conceptually, the courts have recognised the
difference between an application for an order for stay of proceedings and an
application for an order for a stay of execution as shown in the case of Footprint Solutions Co. Ltd vs. Leo &amp;
Lee Company Ltd (unreported) Civil Appeal No. J4/52/2011, delivered on the
24th May 2013 where the court speaking through Anin Yeboah JSC
stated among others that:<o:p></o:p>It is settled at law that orders of stay of
proceedings and stay of execution are conceptually different. Whereas a stay of
proceeding may bring a temporary halt to proceedings, an order of stay of
execution on the other hand operates to bring the processes of execution to a
temporary halt.<o:p></o:p>The
reason for the court holding that the distinction drawn by counsel for the respondent
is inapplicable to the facts of this very case is that when the respondent
appeared before this court in respect of the application for garnishee order
nisi, what they sought to enforce is the order or decision by the Court of
Appeal that 15% of the judgment sum plus cost be paid by the applicant herein.
This implies that the respondent proceeded to enforce the order made or given
by the Court of Appeal and, in the opinion of the court, that is the very thing
that the applicant seeks to prevent when they filed their motion before the
Supreme Court “for an order for stay of
proceedings under the decision of the Court of Appeal of the 19th of
November 2018”. <o:p></o:p>The
application before the Supreme Court seeks, as it were, to stay or prevent the respondent
from proceeding under the decision of the Court of Appeal given on the 19th
November 2018 to reap the benefit under that decision. Hence, it cannot be
reasonably argued that the application before the Supreme Court has no bearing
on the application for garnishee order nisi which took place before this very
court. The distinction sought to be drawn by the re</main>