July 18, 2018
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Appau, JSC, considered a repeat motion for stay of execution of a Court of Appeal order that required a company to pay a substantial judgment debt or face winding-up. The company, a mining enterprise with a lease from the Government of Ghana, had earlier been subjected to summary judgment for US$1,105,902.30 and a winding-up petition under Act 189, even as a Commercial Court had confirmed a creditor-approved scheme of arrangement under section 231 of Act 179. In this application, the company argued that proceeding with winding-up would halt directors’ powers and risk terminating its appeal, and might trigger forfeiture of its mining lease. The Court reaffirmed its duty to prevent appeals from becoming nugatory, balanced the equities—recognizing delay as the respondent’s main prejudice mitigated by interest—and granted a stay, preserving the status quo until the substantive appeal determines the interaction between the scheme and winding-up orders.
RULING
APPAU, JSC:-
Before us is a motion for stay of execution of the decision/order of the Court of Appeal dated 7th December 2017 pending an appeal against that decision/order. Though it is a repeat application after a similar one had been refused by the Court of Appeal, it is not regarded as an appeal against the decision of the Court of Appeal as held by this Court in JOSEPH v JEBEILE & Another [1963] 1 GLR 387. It is, in fact, a fresh application altogether and we are supposed to exercise our discretion unmindful of the reasons grounding the refusal by the Court of Appeal. Our paramount consideration is whether there are exceptional circumstances to warrant the grant. In so doing, however, we must avoid the temptation of prejudicing the appeal by going into the merits of the substantive matter, which is yet to be gone into and for which the application has been made.
As we have consistently held in several cases dating back to the Joseph v Jebeile case (supra), it is the paramount duty of every court to which an application for stay of execution pending appeal is made to ensure or see to it that the appeal, if successful, is not rendered nugatory - MENSAH v GHANA FOOTBALL ASSOCIATION [1989] 1 GLR 1 @ p. 2. This consideration is given premium particularly, where the judgment appealed against is one involving the payment of money by the appellant/applicant. Before we determine the merits of the application, a brief narration of the facts would be essential for a better appreciation of the reasons behind the exercise of our discretion.
Somewhere in September 2013, the respondent in this application instituted an action in the High Court against the applicant for the recovery of the sum of US$1, 105,902.30. The applicant could not defend the action so the trial court entered summary judgment against it in the said sum on the application of the respondent. Subsequently, the respondent, realizing that the applicant could not pay the judgment-debt within the time it expected, petitioned the High Court under the Bodies Corporate (Official Liquidation) Act, 1963 [Act 189] for the official winding-up of the applicant. The High Court granted the order but stayed its execution for a period. The applicant applied to the trial High Court to stay execution and to set aside its winding-up orders. The major reason advanced in support of applicant’s motion for stay was that the Commercial Court, which is a court of co-ordinate jurisdiction, had earlier on co