VICTOR KODJO DJANGMAN vs NDK FINANCIAL SERVICES LTD
November 24, 2022
HIGH COURT
GHANA
CORAM
- HER LADYSHIP JUSTICE AFI AGBANU KUDOMOR (MRS.)
Areas of Law
- Civil Procedure
November 24, 2022
HIGH COURT
GHANA
CORAM
AI Generated Summary
Her Ladyship Justice Afi Agbanu Kudomor of the Ghana High Court determined a motion by the Defendant Judgment Debtor Applicant for a stay of execution pending appeal from the courts 14 July 2022 judgment. The Applicant had filed a notice of appeal, asserting serious questions of law and that the appeal would be rendered nugatory without a stay. The Plaintiff Judgment Creditor Respondent opposed, arguing the High Court lacked jurisdiction due to C.I. 132 and emphasizing Applicants admissions of indebtedness. Relying on the Supreme Courts Ex parte Ecobank Ghana Limited ruling, the court held it retained jurisdiction until the Record of Appeal was transmitted. On the merits, the court granted a partial stay limited to the 26% interest award and dismissed a stay over the principal GH0,538,378.11 and GH0,000 costs, ordering no costs on the application.
APPLICATION FOR STAY OF EXECUTION PENDING APPEAL
This is a motion on notice for an order of stay of execution pending appeal against the judgment of this Court dated 14th July 2022.
The grounds for the instant application as per the depositions in the affidavit in support are that the Defendant Judgment Debtor Applicant (hereinafter referred to as Applicant) is dissatisfied with the said judgment of the court and has filed a notice of appeal; indicating that there are serious questions of law for determination by the Court of Appeal which has a high chance of success.
That unless the execution of the judgment is stayed, the appeal would be rendered nugatory as there are exceptional circumstances which warrant a stay of execution of the said judgment.
In the affidavit in opposition to the instant application, there are averments by Plaintiff Judgment Creditor Respondent (hereinafter referred to as Respondent) that the appeal has no chance of success because Applicant admitted its indebtedness to Respondent but however failed to indicate the amount of its indebtedness to him.
That despite this fact, Applicant is preventing Respondent from enjoying the fruit of the judgment. That the instant application be dismissed.
Counsel for Respondent whilst on his feet submitted that this Court has no jurisdiction to entertain the instant application because the rule which allows an Applicant to bring an application for stay of execution pending appeal before the High Court and when refused; to repeat the application in the Court of Appeal has been repealed by the Court of Appeal (Amendment) Rules, 2020 (C.I. 132).
This issue was conclusively dealt with by the Supreme Court in the case of The Republic v High Court (Commercial Division 9), Accra, Exparte: Ecobank Ghana Limited; Origin 8 Limited & Anor (Interested Parties) Civil Motion No. J5/10/2022 delivered on 18th January 2022.
The Supreme Court in that matter held that notwithstanding the coming into force of C.I. 132, the position remains that when an appeal has been lodged in the Court of Appeal against a decision of a lower Court, that lower Court continues to have jurisdiction to hear all interlocutory applications which include applications for stay of execution pending appeal of the said decision until the Record of Appeal has been transmitted to the Court of Appeal.
There is no indication from the records before this Court that the Record of Appeal has been transmitted to the Court of Appeal. This cou