GHANA COMMERCIAL BANK v. BULKSHIP AND TRADE LTD & ORS

RULING

AKAMBA, JSC:

The application before me is for a ‘stay of execution and proceedings or suspension of the entry of judgment pending appeal’ and is a repeat application of a similar one dealt by the Court of Appeal on 14th May 2014.

This application was made by motion and supported by a fifty-nine (59) paragraph affidavit as well as forty-seven (47) exhibits. As if that was not enough, the applicant filed his legal arguments in support of the motion. The respondents filed their joint seventy-seven (77) paragraph affidavit to which they attached five exhibits in opposition to the motion. Counsel for the respondents sought to rely on a preliminary objection, citing reference thereto, in the closing paragraphs in their affidavit in opposition.

The rules of this court do not require the filing of legal arguments in an application of this nature for stay of execution. All that is required is the motion application supported by an affidavit deposing to the facts sought to be relied upon. On the part of the counsel for the respondents it is worth noting that rule 17 of CI 16 regulates the issue of a respondent intending to raise a preliminary objection to the hearing of an appeal as distinct from the hearing of a motion. This application being a motion and not the hearing of an appeal is not covered by the rule. At the hearing of a motion, it is sufficient for the proponent to raise the objection when the motion is about to be moved. In the case of Osei Bonsu II v Mensah and Ors (2003-2005) 1 GLR 141, CA, I had occasion to deal with rule 16 of CI 19, the Court of Appeal Rules, which is in pari materia with rule 17 of CI 16, the Supreme Court Rules, which reasoning I adopt in this instance. Rule 16 of CI 19 enacts as follows:

“16. Notice of Preliminary Objection.

A respondent who intends to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice before the hearing of the preliminary objection, setting out the grounds of objection, and shall file the notice specified in Form 8 in Part 1 of the schedule together with five copies of the appeal with the Registrar within the same time.

If the respondent fails to comply with this rule, the court may refuse to entertain the objection or may adjourn the hearing at the cost of the respondent or may make such other order as it thinks fit”

Rule 17 of CI 16 on the other provides as follows:

“17 (1) Where a respondent has not indicated in his statement that h