AFRICAN AUTOMOBILE LIMITED (PLAINTIFF/JUDGMENT/CREDITOR/RESPONDENT) vs. ACCRA METROPOLITAN ASSEMBLY (DEFENDANT/DEBTOR/APPLICANT) [2019]DLHC7153

AFRICAN AUTOMOBILE LIMITED (PLAINTIFF/JUDGMENT/CREDITOR/RESPONDENT) vs. ACCRA ME... [2019]DLHC7153

Date	2019-03-13
Suit No.	SUIT NO. RPC/344/07
Citation No.	[2019]DLHC7153

HIS LORDSHIP GEORGE K. KOOMSON (J).

PETRINA DEFIA FOR OSAFO BUABENG FOR PLAINTIFF/JUDGMENT/ CREDITOR/RESPONDENT

AKAWARI ATINDEM (ASA) FOR DEFENDANT/ JUDGMENT/DEBTOR/ APPLICANT

[2019]DLHC7153
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													<main id="main" class="content" style="min-height: 60rem" >AFRICAN AUTOMOBILE
LIMITED<o:p></o:p>(PLAINTIFF/JUDGMENT/CREDITOR/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>ACCRA METROPOLITAN
ASSEMBLY<o:p></o:p>(DEFENDANT/DEBTOR/APPLICANT)<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;
padding:0in 0in 1.0pt 0in">

SUIT
NO. RPC/344/07&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 13TH
MARCH, 2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p>PETRINA
DEFIA FOR OSAFO BUABENG FOR PLAINTIFF/JUDGMENT/ CREDITOR/RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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AKAWARI ATINDEM (ASA) FOR DEFENDANT/
JUDGMENT/DEBTOR/ APPLICANT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP GEORGE K.
KOOMSON (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;
text-align:center;line-height:115%;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>This is an application filed by the
Defendant/Judgment Debtor/Applicant seeking to set aside the Garnishee Order
Nisi made by this Court on 8th October 2018. I have read the
Application and the various affidavits filed by the parties. I have also considered
the oral submissions made by both Counsel in support and in opposition to the
application. Regard has also been given to the Court (Award of Interest and
Post Judgment Interest) Rules, 2005 (C.I. 52) and Order 43 Rule 10 of the High Court Civil Procedure Rules (C.I. 47).
I have also given consideration to the ruling of my elder sister Barbara Ackah
– Yensu JA granting the Stay of Execution on terms. <o:p></o:p>A brief summary of the facts giving
rise to this application are that, Judgment was given by this Court in favour
of Plaintiff/Applicant on 3rd March 2009 for an amount of GH¢
202,483.93 being the principal sum owed by the Defendants to the Plaintiff and
interest on the sum at 10% per mensnem to be calculated from 30th
April 2003 till date of final payment. Defendant/Respondent herein, being
dissatisfied with the judgment, filed an appeal with the Court of Appeal, and
filed for a stay of execution of the judgment of this court pending the
determination of the appeal.<o:p></o:p>On 29th July 2009, this
Court differently constituted granted the Defendant/Respondent’s motion for
Stay of execution on the condition that the Defendant/Respondent pays 50% of
the Judgment debt to the Plaintiff/Applicant. The Defendant was further
dissatisfied with the conditional grant of the stay application and repeated
the Application before the Court of Appeal, which dismissed the repeat
application.<o:p></o:p>In the case of REPUBLIC v COURT OF APPEAL, ACCRA EX PARTE GHANA CABLE LTD [2005-2006]
SCGLR 107 at page 108, it was held regarding stay of execution applications
that; “once the application is properly filed in the appellate court it must
consider the application on the merits, afresh, and come to an independent
decision. In the nature of things, unless the appellate court confirms the
decision of the court below, its own order prevails.”<o:p></o:p>On the strength of this authority, the
dismissal of the repeat application by the Court of Appeal in effect restored
the conditional stay granted by this court. In that light, following the
dismissal of the repeat application, Defendant/Respondent made payment of an
amount of GH¢202, 483.93 on 22nd December 2009 and a subsequent
amount of GH¢50,256.05 on 22nd February 2010 to the
Plaintiff/Applicant ostensibly in satisfaction of the conditions of stay. <o:p></o:p>The Plaintiff/Respondent obtained an
order for garnishee nisi against the Bank of Ghana in execution of its judgment
on the grounds, among others, that the Defendant/Respondent failed to satisfy
the conditions for stay. It is this order which the Defendant/Applicant seeks
to set aside that has brought about this present application.<o:p></o:p>The issues in contention between the
parties can be grouped into two parts; firstly, the discrepancies between the
judgments in the possession of both parties, and whether or not the payments of
GH¢202, 483.93 and GH¢50,256.05 made in December 2009 and February 2010
respectively fully satisfied the conditions of the Order for Stay of Execution
granted to the Defendants herein. <o:p></o:p>The parties are each in possession of a
judgment of this Court on the dispute that are similar in all respects except
on the issue of interest. In the Court (Award of Interest and Post Judgment
Interest) Rules, 2005 (C.1 52), it is provided at Rule 1 that:<o:p></o:p>1.
If the court in a civil cause or matter decides to make an order for the
payment of interest on a sum of money due to a party in the action, that
interest shall be calculated<o:p></o:p>(a) at
the bank rate prevailing at the time the orde</main>