GOLDEN BEACH HOTELS (GH) LTD v. PACKPLUS INTERNATIONAL LTD

R U L I N G

DR DATE-BAH JSC:

This is an application for an order from this Court suspending an order of the Court of Appeal made on 14th December 2011 or, in the alternative, an order staying execution of the proceedings consequent upon that order which refused the Applicant’s application for stay of execution. The application is patently made in order to circumvent the received learning that this and other courts will not grant a stay of execution of orders that are not executable. The application relies principally on two authorities: Merchant Bank Ghana Ltd. V Similar Ways Ltd., an unreported decision of this court dated 29th March 2011 (Civil Motion J8/38/2011} and Standard Chartered Bank (Ghana) Ltd. V Western Hardwood Ltd. & Another [2009] SCGLR 196.

In the Merchant Bank case, the High Court had delivered a judgment when one party had not been served with any hearing notice for the day of judgment. That party had applied to set aside the delivery of the judgment. That application was dismissed. It appealed against this dismissal and in the meantime applied unsuccessfully to the High Court and the Court of Appeal for an interim injunction to restrain the execution of the judgment. It next applied to the Supreme Court for this relief of an interim injunction. In response to that application, our brother Atuguba JSC said:

“All along, it is obvious that its applications and appeals do not relate to any executable order. That however does not mean that it has no interest in holding off the enforcement of the substantive judgment to which its processes relate.

If a stay of execution cannot lie other remedies may lie. One of such remedies can be the suspension of the entry of judgment. In that event the effect of the judgment itself is temporarily frozen and incidental processes such as execution can’t fly not because execution thereof is stayed but that the life of the judgment itself is in coma. This measure will prevent the eventual success of the applicant’s appeal being rendered nugatory.

This measure will protect the applicant from being injured by the prima facie default of the trial court having delivered its judgment without notice to the applicant, pending the determination of its appeals.”

In the Standard Chartered case, Atuguba JSC, delivering the ruling of the Court, considered the effect of Rule 20 of the Supreme Court Rules, 1996, CI 16.He stated (at p. 200) that:

“…this court can, in an appropriate case, grant a “stay of proceeding