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July 29, 2019
HIGH COURT
GHANA
CORAM
RULING
The defendants herein filed this application by motion on notice for stay of execution of the judgment in default of appearance entered against them.
By a writ of summons issued on the 12th October, 2018, the Plaintiff/Judgment/Creditor/Respondent (hereinafter referred to as the Plaintiff) claimed against the defendants herein as follows:
a. A declaration that the plaintiff is entitled in law and fact to lift the veil of incorporation of the 1st and 2nd defendants with a view to making the 3rd -11th defendants personally liable for the indebtedness due and owed him by the 1st and 2nd defendants.
b. A declaration that by reason of the repeated pattern of broken promises and undertakings, the plaintiff is entitled to the full payment of is investment made with the 1st defendant and guaranteed by the 2nd defendant in addition to general, special and punitive damages.
c. A declaration that the conduct of the 1st and 2nd defendants in relation to the indebtedness owed the plaintiff is fraudulent and/or concealed fraud on the plaintiff whose indebtedness due him must be settled by all the defendants.
d. SUCH FURTHER ORDER(S) as the Honorable Court may deem fit.
On 25th October, 2018 the court entered judgment in default of appearance against the 1st and 2nd defendants. However, on 18th February, 2019 the court set aside the default judgment entered on 25th October, 2018.
Again, on 22nd March, 2019 upon an application by the plaintiff, judgment in default of appearance was entered against the 2nd defendant.
On 17th June, 2019 an application to set aside the default judgment was dismissed by the court.
The defendants have filed a Notice of Appeal against the default judgment entered by the court as well the order dismissing the motion to set aside the default judgment. The instant application is borne out of the Notice of Appeal.
The grounds of the application as captured by the affidavit in support and argued by counsel for the defendants are as follows:
1. The contention of the Applicants is that there are serious legal issues which could be determined on appeal and for which reason a stay of execution ought to be granted.
2. That apart from the 2nddefendant who was served with the writ of summons, the rest of the defendants had not been served.
3. That stay of execution is permissible in such circumstances especially when the question of the jurisdiction of the Court to enter the judgment is under attack and the issue of the violation of
AI Generated Summary
The High Court, per Dr. Richmond Osei-Hwere, J., ruled on a motion for stay of execution pending appeal arising from a default judgment entered on 22 March 2019 against the second defendant. The plaintiffs October 2018 writ sought to recover an investment and pierce the corporate veil to reach the third through eleventh defendants. The defendants argued that serious legal issues exist for appeal, that most defendants were not served, and that hardship would result if a stay were refused. The plaintiff opposed, highlighting procedural defects in the Notice of Appeal (lodged in the wrong registry and double-barreled) and that only the second defendant is subject to judgment. Applying Ghanaian authorities governing stays, the court found no serious points of law on appeal, noted appeals by parties with no judgments, and emphasized that the judgment is for a liquidated sum so refunds can be made if the appeal succeeds. Finding no exceptional circumstances and that the balance of convenience favored the plaintiff, the court dismissed the application and awarded costs of GHC 4,000.