EMOS CONSULTANCY LIMITED v. MECHANICAL LLOYD COMPANY LIMITED

TORKORNOO (MRS.) JSC:-

What should have been the pleasant enjoyment of the fruits of justice has turned into a merciless round of litigation in the suit that has brought this appeal before the Supreme Court.

Background

In October 2012, the plaintiff/appellant/appellant (hereafter referred to as plaintiff) obtained judgment in the high court against the defendant/respondent/respondent (defendant) in the sum of GBP 26,689.00 or its cedi equivalent, damages of GHC 6,000 with costs of GHC5000

The defendant thereafter appealed and applied for stay of execution of the judgment. On 11th February 2013, the trial judge ordered the defendant to pay 50% of the judgment sum and stayed execution of the other 50% of the judgment sum pending appeal.

The defendant repeated the application for stay of execution pending appeal in the court of appeal. The court of appeal dismissed that application in March 2013 and affirmed the high court order to pay 50% of the judgment sum. The plaintiff thereafter paid GHC 45,105.55 as 50% of the judgment sum ordered.

Since the appeal was filed in November 2012, the appeal records have not been transmitted to the court of appeal for the appeal to be heard. In October 2019, the plaintiff applied to the high court for leave to issue a writ of fifa against the defendant/judgment debtor for execution of the outstanding 50% judgment sum. The application was resisted by the defendant.

The high court judge ruled inter alia that ‘where a court gives a decision and a party is dissatisfied, that party may appeal or in the case of a stay of execution, repeat the application at the appellate court. Where the appellate court dismisses the appeal or the repeat application, the effect is that the decision of the trial court persists, unless specifically set aside or reversed. In the instant case, the repeat application filed by the respondent was dismissed by the court of appeal…The court of appeal did not reverse or set aside the order made by the trial judge. It is my view that the said decision of the trial judge is binding on the parties. The Respondent having paid 50% of the judgment debt to the Applicant, which said payment was confirmed by the plaintiff’s counsel in the garnishee proceedings and in his letter dated 7th February 2019, it should not lie in the mouth of the applicant that the defendant has not paid the 50% of the judgment debt ordered by the court. By their own admission and acknowledgment, the plaintiff/judgment creditor has