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November 13, 1968
HIGH COURT
GHANA
CORAM
JUDGMENT OF ANNAN J.
This application is for an order staying execution of the judgment debt and costs ordered by the District Court Grade I, Kumasi, in the above-mentioned suit pending the hearing and determination of the appeal of the applicant to this court.
The facts, not in dispute, show that the applicant, the defendant in the suit, submitted to judgment on the plaintiff-respondent's claim. The suit was for a debt of N¢1,000.00 and was on the undefended list. The plaintiff's writ of summons states that he had given the defendant financial assistance to enable him take delivery of his vehicle after repairs. The defendant had promised to repay the loan within a week. In the trial court, the defendant filed a notice of his intention to defend with an affidavit admitting the plaintiff's claim. He, however, put in a counterclaim for N¢2,000.00 damages in his affidavit and then asked for a stay of execution of any judgment that may be awarded against him pending the hearing and determination of the counterclaim.
The defendant's counterclaim was based on allegations that the plaintiff had, without any lawful justification, seized the defendant's vehicle by taking its ignition key and removing the battery. The vehicle was then loaded to its maximum capacity with goods for transportation to Mali. The vehicle was under unlawful seizure from 5 October 1968 till 17 October 1968. The plaintiff had behaved in this manner because the defendant had not paid the loan of N¢1,000.00. The defendant therefore claimed special damages of N¢1,724.50 and general damages of N¢380.00.
When the matter came on for trial before the district magistrate on 31 October 1968, judgment was entered against the defendant for the sum admitted by him and the defendant's application for a stay of execution and for transfer of his counterclaim to the appropriate court was refused, and the counterclaim was struck out. The defendant's appeal is from the order striking out the counterclaim and refusing stay of execution.
[p.1011]
The counterclaim is admittedly outside the jurisdiction of the district court and there was therefore no question of that court trying that claim. It was contended however that it should have remitted the claim to the appropriate court for determination and this argument was supported by reference to the Courts (Amendment) Decree, 1968 (N.L.C.D. 277), para. 1 (b) which amended the Courts Decree, 1966 (N.L.C.D. 84), para. 52. In my view that provision is not apt
AI Generated Summary
Annan J. considered an application by the defendant, who had admitted indebtedness of N¢1,000 to the plaintiff for a loan enabling retrieval of a repaired vehicle, to stay execution of the District Court Grade I, Kumasi judgment pending his appeal. The suit proceeded on the undefended list, and while admitting the debt the defendant filed a counterclaim seeking N¢2,000 in damages for an alleged unlawful seizure of his vehicle—loaded for transport to Mali—by the plaintiff, claiming special damages of N¢1,724.50 and general damages of N¢380. The district magistrate entered judgment for the admitted sum, refused a stay and transfer, and struck out the counterclaim. On appeal, Annan J. held that, under N.L.C.D. 277 and N.L.C.D. 84, a counterclaim is a cross-action filed in the same court and cannot be transferred by the district court. He further held that neither a pending appeal nor a cross-action per se justifies a stay absent evidence that execution would render appellate or counterclaim efforts nugatory. Finding no averment of the plaintiff’s inability to satisfy any adverse judgment and noting the plaintiff’s solvency, the application was dismissed with costs of N¢50.