MERCHANT BANK GHANA LTD v. SIMILAR WAYS

JUDGMENT

ATUGUBA, J.S.C:

The plaintiff/Appellant/Appellant/Applicant sued the Defendants/Respondents in the High Court, Accra claiming:

“a) The recovery of $30,808.30 or its cedi equivalent being the balance of the Pre-Export Facility account as at 1st December, 2000.

b) Interest on the said sum at the current bank rate from 1st December 2000 till date of final payment.

c) In addition to or in the alternative the judicial sale of the mortgage property used by the 2nd Defendant to secure the Pre-Export Facility.”

After the conclusion of the hearing judgment, after several adjournments was delivered on the 8th day of January 2009, for inter alia, $80,000 or its cedi equivalent and Gh¢5,000.00 costs on the defendants’ counterclaim.

The applicant, claiming non service on it of any notice of the date for judgment first moved the High Court on 10/9/2009 to set aside both the delivery of judgment and its entry and for interim stay of execution of the same. This application was dismissed on 21/1/2010. On 29/1/2010 the applicant filed an appeal against the Ruling dismissing its said application and also against the judgment dated 8/1/2009 aforesaid. It thereupon as a second step, applied to the High Court for stay of execution but same was dismissed. The applicant’s third step was to repeat its application for stay before the Court of Appeal, but withdrew the same.

Its forth step was to file on 15/4/2010 an application for interlocutory injunction pending appeal. In the meantime it obtained, (having earlier failed in the High Court), leave of the Court of Appeal on 16/6/2010 to amend its notice of appeal by deleting that part thereof relating to the original judgment dated 8/1/2009.

When its application for interlocutory injunction in the High Court was dismissed on 28/7/2010 the applicant repeated its application for the same at the Court of Appeal. The Court of Appeal dismissed the application, holding per Akamba J.A as follows:

“The only appeal referable to the present application is that filed on 29th January 2010 which, at best, is an appeal against the ruling of His Lordship Abdullah Iddrisu J, delivered on 21st January 2010 refusing to stay execution of the decision of the High Court dated 8th January 2009. Incidentally this ruling of 21st January 2010 is not executable and could not ground the interlocutory application before us. The present application being an application for interlocutory injunction pending appeal should properly be premised up