ANTONIO OLIMPIO SANTOS FELEX v. GIOVANNI ANTONELLI & ANOTHER
July 20, 2016
COURT OF APPEAL
GHANA
CORAM
- GYAESAYOR, JA (PRESIDING)
- KORBIEH, JA
- WELBOURNE, (MRS.) JA
Areas of Law
- Civil Procedure
- Commercial Law
July 20, 2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice P. K. Gyaesayor, presiding in the Court of Appeal, addressed an interlocutory application arising from ongoing business litigation over equipment shipped into Ghana for the benefit of a second defendant, intended to be used to defray the cost of shares being acquired by the shipping party. The High Court had ordered interim preservation of the equipment, and multiple attempts by the defendants to secure an interim injunction and a stay were refused, including by a single appellate judge who found no exceptional circumstances. The applicants then asked the full bench to reverse the single judges refusal. Emphasizing that the equipment was vulnerable to wear and tear and could be damaged if left with the second defendant, the full bench agreed with the single judges cogent reasons and, in the interest of justice, declined to vary the order, refusing the application. Justices F. G. Korbieh and Margaret Welbourne indicated agreement.
GYAESAYOR, JA
Parties are locked up in a business litigation in respect of certain equipment shipped into the country by plaintiff/respondent to the benefit of 2nd defendant which was to use the said equipment to defray cost of shares being acquired by plaintiff/respondent.
As a result of a dispute which arose between them the matter went to the High Court which in the course of the hearing and upon an application brought by the plaintiff made an order of interim preservation of the equipment pending the determination of the suit.
The defendants applied for stay of the order after an application for interim injunction filed by them was refused.
A subsequent application for stay of execution was also refused by the trial court in a ruling dated 26/4/2016.
The application was repeated in the court of appeal before a single appellate judge who refused the application on the grounds that there are no exceptional circumstances to warrant the grant.
The instant application is for the full bench to reverse the order of the single appellate judge.
We have taken a serious look at the reasons given by both the lower court and the court of appeal and we find that both decisions are intended to preserve the equipment from wear and tear and thus putting the plaintiffs/respondents to a disadvantage.
As rightly stated by both courts the equipment can possibly be damaged if they are allowed to remain with the 2nd defendant.
In his ruling of 27th day of June 2016, the single appellate judge gave cogent reasons for refusing to stay the order of the court granting the order for preservation of the said equipment “which are vulnerable to tear and wear, damage which would affect their value”. We agree with that ruling in the interest of justice.
We shall in the circumstance refuse the application to vary the order of the single appellate judge.
The application is accordingly refused.
SGD
P. K. Gyaesayor
(Justice of Appeal)
SGD
Korbieh, JA I agree F. G. Korbieh
(Justice of Appeal)
SGD
Welbourne, JA I also agree Margaret Welbourne (Mrs.)
(Justice of Appeal)