KWAKU ANSA-ASARE v. CAL MERCHANT BANK LTD

RULING

AKAMBA, J.A.:

This is an application by the Defendant/Appellant/Applicant [herein after simply as Applicant] seeking an order for stay of execution of the judgment of the Accra High Court dated 23rd May 2002 Coram: Agnes Dzordzie (Mrs.) J, pending appeal.

The applicants’ reasons for seeking the stay of execution are that the Respondent would be unable to refund the colossal sum involved should the same be paid to him and the appeal eventually succeeds. Also, the Applicant is of the view that it is economically wise to leave the judgment sum with them to invest same, being a Bank, and to pay it off should their appeal fail. Lastly, the appellant pointed out that his appeal has every chance of succeeding in which event a refund would be unnecessary.

The Respondent vehemently opposed the application contending that not only is the appeal doomed to failure but that he is a man of substance and can refund the total sum in an unlikely event of the appeal succeeding. In addition the Respondent gave an indication of his willingness to give a written undertaking to refund the sum should the Court so desire. Finally the Respondent stressed that he did all the necessary legal work for which he was retained, attaching the property in respect of which he organized two auction sales and therefore properly earned his fee.

In our view the Applicant did not deny that the Respondent did the work for which he was retained as per Exh. 'C'. There appears however to be a dispute as to what amount is payable to the Respondent, but that is an issue to be properly determined when the appeal is heard. What is important here is whether in the event of the appeal succeeding, the Respondent would be in a position to refund the sum involved. From the affidavit evidence and the arguments urged before us we are satisfied that the Respondent is in a position to refund the money should the appeal succeed. Accordingly we hereby refuse the application for stay of execution on the condition that the Respondent deposits with the Registrar of this Court a written undertaking within seven (7) days of this order that he will refund the full amount in the event of the appeal succeeding.

No order as to costs.

J. B. AKAMBA

JUSTICE OF APPEAL

LARTEY, J.A.:

I agree.

AKOTO-BAMFO (MRS):

I also agree.