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August 14, 1972
HIGH COURT
GHANA
CORAM
JUDGMENT OF BAIDOO J.
On 14 June 1972, this court presided over by Coussey J, gave judgment in favour of the plaintiff (hereafter called the judgment creditor). Aggrieved by the said judgment the defendant (hereafter called the judgment debtor) filed notice of appeal on 16 June 1972. By virtue of the Supreme Court Rules, 1962 (L.I. 218), r. 27 as amended by the Court of Appeal Rules, 1969 (L.I. 618), the appeal operated as a stay of execution and would have preserved the status quo ante pending the determination of the appeal by the Court of Appeal. Anxious however to enjoy the fruits of his victory, the judgment creditor filed a motion in this court on 17 July 1972 praying for leave to go into execution.
[p.36]
The said motion was heard on 31 July 1972 by Coussey J. who made an order that the judgment creditor should go into execution forthwith. In the absence of a certified true copy of the said order, I have accepted the word of counsel that the order made on 31 July 1972 by Coussey J. gave the judgment creditor leave to go into execution forthwith.
By this motion filed on 8 August 1972 by the judgment debtor, he is praying that his four houses attached by fi. fa. taken out by the judgment creditor be released from attachment, and that execution of the fi. fa. be suspended by this court. At the hearing of the motion learned counsel for the judgment creditor took the preliminary objection that this court presided over by me has no power to entertain the application because of the following two reasons:
(1) Having already granted the judgment creditor leave to go into execution, the High Court cannot order a stay of execution except by way of review, and a review can be ordered only by Coussey J. who made the order. No other judge has power to review Coussey J.'s order of 31 July 1972.
(2) The application before the court is not authorised by any enactment and is wholly irregular.
I cannot help observing that the determination of the two points raised by the judgment creditor's counsel will substantially dispose of the judgment debtor's application one way or the other as I don't see any other point that calls for determination.
With respect to the first objection, it is trite law that an application for review can be dealt with only by the judge who made the order. Order 39, r. 1 (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), expressly states that the aggrieved party ". . . . may apply for a review of the judgment
AI Generated Summary
Baidoo J addressed an application by the judgment debtor to suspend execution after a High Court judgment by Coussey J had awarded substantial damages and later authorized immediate execution. Although a notice of appeal had been filed, the judgment creditor obtained an order to execute forthwith, and the debtor’s four houses were attached under fi. fa. In response to preliminary objections, Baidoo J emphasized that while review lies only to the judge who made the order, the present application was not a review but an interim measure within the High Court’s inherent jurisdiction during the transitional period before the appeal is entered in the Court of Appeal. He noted risk of irreparable prejudice: the judgment creditor’s apparent impecuniosity affecting refund prospects, an apparent per incuriam damages assessment, and serious irregularities in service and sealing of process. Concluding that justice required protection pending appeal, he granted a stay of execution.