2019
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Following a US$16,009,920 High Court judgment for the Plaintiff against the 1st Defendant over long-term use of family land, interim execution was managed during a pending appeal in the Court of Appeal. A single judge ordered 30% of the judgment debt be paid into court and required the Plaintiff to post an equivalent bank guarantee before any release. The Plaintiff obtained a National Investment Bank (NIB) guarantee; an ex parte release by the trial High Court was set aside by the Supreme Court for procedural reasons and the funds were returned to court. On notice, the Plaintiff sought release of GH¢21,120,040. The 1st Defendant opposed, alleging the guarantee was invalid (unauthorized signatures; no seal) and that NIB was financially distressed. Applying the Turquand rule, corporate law principles, and Bank of Ghana’s reform update, Mensah J.A. rejected the objections and affirmed the order to release the funds.
LAWRENCE L. MENSAH, J.A.
On the 27th day of February 2019, this court gave its ruling in favour of the Plaintiffs/Respondent/Applicant (hereinafter referred to the Plaintiff) against the 1st Defendant/Appellant/Respondent (who will be referred to as the 1st Defendant) that the sum of money ordered by this Court to be paid by the 1st Defendant to the Plaintiff by way of guarantee be released to the Plaintiff. We now give the reasons for the said ruling of the 27th of February 2019 aforesaid.
It is necessary to put this ruling into its proper perspective by rehearsing the facts briefly as follows: The Plaintiff brought an action against the Defendants at the High Court, Agona Swedru, claiming, inter alia a sum of money, for the 1st Defendant’s user of the land of the Plaintiff’s family. On the 10th of May 2017, the Plaintiff obtained judgment against the 1st Defendant in the sum of US$16,009,920.00. In execution of the said judgment, the Plaintiff obtained a garnishee order nissi against the 1st Defendant to enforce payment. Meanwhile the 1st Defendant had appealed to this Court and the appeal is yet to be determined.
The 1st Defendant applied for stay of execution pending appeal at the trial High Court which granted a stay of execution on the condition that the 1st Defendant paid 50% of the judgment sum to the Plaintiff. Aggrieved, the 1st Defendant filed a repeat application to this court before the single Judge. On 7th November 2017, the single Judge granted the stay on condition that 30% of the judgment debt be paid into court. The single Judge further ordered the Plaintiff to post a guarantee in the same amount before the money paid into court could be released to the Plaintiff.
Still dissatisfied with the orders of the single Judge, the 1st Defendant applied to the full Bench for a variation, modification or reversal of the decision of the single Judge. The application was however refused by the full Bench of this court on the 4th day of December 2017. The 1st Defendant however failed to appeal against the 7th November 2017 order of the single Judge, and the 4th December 2017 order of the full Bench. What is more, the 1st Defendant refused to pay the sum ordered by the single Judge and the full Bench.
Having so failed to pay the judgment sum decreed, the Plaintiff initiated a fresh garnishee proceedings to enforce the judgment of the Court. This moved the 1st Defendant to pay the sum decreed by this Court and served on the Plaintiff Notice of Paym