BAIDEN vs. ANSAH [1973] 1 GLR 33

CASES REFERRED TO

(1) Joseph v. Jebeile [1963]1 G.L.R. 387, S.C.

(2) Banson v. Abbey [1962] 1 G.L.R. 213, S.C.

(3) Tormekpey v. Ahiable, Court of Appeal, 21 January 1970, unreported; digested in (1970) C.C. 44.

(4) Ansah-Addo v. Oppong Addo, Civ. App. No. 75 of 1972, unreported.

(5) Tuck v. Southern Counties Deposit Bank (1889) 42 Ch.D. 471; 58 L.J.Ch. 699; 61 L.T. 348; 37 W.R. 769; 5 T.L.R. 719, C.A.

(6) West African Bakery v. Miezah [1972] 1 G.L.R. 78, C.A.

(7) Barker v. Lavery (1885) 14 Q.B.D. 769; 54 L.J.Q.B. 241; 33 W.R. 770, C.A.

(8) Bradford v. Young; Re Falconar’s Trusts (1884) 28 Ch.D. 18; 54 L.J.Ch. 368; 51 L.T. 550; 33 W.R. 159, C.A.

(9) Wilson v. Church (No. 2) (1879) 12 Ch.D. 454; 41 L.T. 296; 28 W.R. 284, C.A.

NATURE OF PROCEEDINGS

APPLICATION for an order to suspend execution pending appeal. The facts are stated in the ruling.

COUNSEL

Messrs. Gaisie Scheck & Co. for the applicant.

K. E. A. Sekyi for the respondent.

JUDGMENT OF BAIDOO J.

On 14 June 1972, this court presided over by Coussey J, gave judgment in favour of the plaintiff (hereafter called the judgment creditor). Aggrieved by the said judgment the defendant (hereafter called the judgment debtor) filed notice of appeal on 16 June 1972. By virtue of the Supreme Court Rules, 1962 (L.I. 218), r. 27 as amended by the Court of Appeal Rules, 1969 (L.I. 618), the appeal operated as a stay of execution and would have preserved the status quo ante pending the determination of the appeal by the Court of Appeal. Anxious however to enjoy the fruits of his victory, the judgment creditor filed a motion in this court on 17 July 1972 praying for leave to go into execution.

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The said motion was heard on 31 July 1972 by Coussey J. who made an order that the judgment creditor should go into execution forthwith. In the absence of a certified true copy of the said order, I have accepted the word of counsel that the order made on 31 July 1972 by Coussey J. gave the judgment creditor leave to go into execution forthwith.

By this motion filed on 8 August 1972 by the judgment debtor, he is praying that his four houses attached by fi. fa. taken out by the judgment creditor be released from attachment, and that execution of the fi. fa. be suspended by this court. At the hearing of the motion learned counsel for the judgment creditor took the preliminary objection that this court presided over by me has no power to entertain the application because of the following two reasons:

(1) Having already granted the judgment creditor leave to go into execution, the High Court cannot order a stay of execution except by way of review, and a review can be ordered only by Coussey J.

who made the order. No other judge has power to review Coussey J.’s order of 31 July 1972.

(2) The application before the court is not authorised by any enactment and is wholly irregular.

I cannot help observing that the determination of the two points raised by the judgment creditor’s counsel will substantially dispose of the judgment debtor’s application one way or the other as I don’t see any other point that calls for determination.

With respect to the first objection, it is trite law that an application for review can be dealt with only by the judge who made the order. Order 39, r. 1 (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), expressly states that the aggrieved party “. . . . may apply for a review of the judgment or order to the judge who gave judgment or made the order.” I am not therefore purporting in this application to review any judgment or order made by my brother Coussey J.

The senior registrar of this court appreciates the situation and has therefore refrained from placing before me the judgment debtor’s motion filed on 1 August 1972 praying for review of Coussey J.’s order of 31 July 1972 since in view of the current legal vacation Coussey J. will not be available to hear the motion. The registrar should have realised further that as a result of the filing of the motion for review the judgment debtor’s application for fi. fa. should have been suspended until the court, properly constituted, has had an opportunity to reconsider the question whether there should be a stay of execution or not. The necessity for registrars to suspend any further action whenever there is an interim application filed against execution was stressed by the Supreme court with great emphasis in the case of Joseph v. Jebeile [1963] 1 G.L.R. 387 at pp. 391-392, S.C.

If the registrar has power to suspend execution in view of the filing of the motion by the judgment debtor praying for review, a fortiori the court must be deemed, to have the powers which the officers have. On

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this point the case of Banson v. Abbey [1962] 1 G.L.R. 213, S.C. may be cited. In that case an application for extension of time within which to execute a bond for costs on appeal was submitted to the judge of the High Court who granted the motion and extended the time limit. It was contended by preliminary objection at the hearing of the appeal that the judge acted without jurisdiction. The Supreme Court at p. 216 of the report overruled the objection on the grounds that since the High Court registrar has power to fix or extend the time within which to execute the bond for costs, “a fortiori the court must be deemed, in the exercise of its inherent jurisdiction to have the powers which its officers have in matters concerning which the rules of procedure required the registrar to perform duties relating to appeals.”

In the absence of the motion for review, has this court any power to order suspension of the fi. fa. taken out by the judgment creditor? This brings me to the second objection raised by the judgment creditor’s counsel. Counsel for the judgment debtor has cited a number of rules which he contends give this court power to suspend execution. Order 42, r. 16 (1) (b) and Order 63, r. 6 cited by learned counsel for the judgment debtor are inapplicable because the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), apply only in cases pending in the High Court and not during the transitional period after judgment when notice of appeal has been lodged; from that time onward the rules applicable are the Supreme Court Rules, 1962, contained in L.I. 218 as amended. Thus in the Banson case (supra) the High Court judge relied on Order 64, r. 6 in granting the appellant extension of time to execute the bond but the Supreme Court pointed out that the rules of court cited by the judge do not apply during the transitional period after judgment.

There is however great force in the contention of the judgment debtor’s counsel that by virtue of the notice of appeal filed on 8 August 1972 in respect of the order of Coussey J. made on 31 July 1972 granting the judgment creditor leave to go into execution, the second appeal lodged by the judgment debtor operates as a stay of execution. This contention was bitterly opposed by the judgment creditor’s counsel who stressed that there is no right of appeal from the said order of 31 July 1972 citing as authority for his proposition the case of Tormekpey v. Ahiable, Court of Appeal, 21 January 1970, unreported; digested in (1970) C.C. 44. That case cannot be relied on as authority for the view urged by the judgment creditor’s counsel because the facts of that case are distinguishable from the facts of the present case. More important the case was decided before the new Courts Act, 1971 (Act 372), came into force.

Section 10 (1) and (3) of the Courts Act, 1971 (Act 372), provide as follows:

“10. (1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of the

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Constitution, appeals from any judgment, decree or order of the High Court of Justice or any Justice thereof and such other appellate jurisdiction as may be conferred upon it by the Constitution, or this Act or any other law. . . .

(3) Except as otherwise provided in the Constitution, an appeal shall lie as of right from a judgment, decree or order of the High Court of Justice to the Court of Appeal in any cause or matter determined by the High Court of Justice.”

(The emphasis is mine). On the face of it, section 10 of the Courts Act, 1971 (Act 372), gives the aggrieved party (the judgment debtor herein) the right to appeal from the order of 31 July 1972. This point came up for determination in Civil Appeal No. 75 of 1972 in the case of Ansah-Addo v. Oppong Addo. Unfortunately the second appeal was discontinued as the appeal in the substantive case was ready for hearing and it was considered a waste of time to argue the second appeal challenging the order granting leave to go into execution. The Court of Appeal therefore made no pronouncement on the point but simply made an order on 4 July 1972 dismissing the appeal as discontinued.

I am of the view that the order made on 31 July 1972 was the final judgment in the case. In the decision of the court given on 14 June 1972 the trial judge left open the question of enforcement of the various damages awarded under the various heads pleaded by the judgment creditor in his statement of claim. He could at the time of giving judgment have given the necessary direction authorising immediate execution provided there was sufficient evidence before him to justify such an order. See on this point the case of Tuck v. Southern Counties Deposit Bank (1889) 42 Ch.D. 471, C.A. where Kay J. observed that the best occasion for deciding whether there should be a stay of execution or not is at the moment when judgment is being given. However in this instant case it was after the court had given its decision that the judgment creditor initiated further proceedings by way of motion for a final order permitting him to go into execution forthwith. The judgment sought to be enforced awarded the judgment creditor damages of ¢46,882.21, according to the notice of entry of judgment filed by the judgment creditor on 17 July 1972, and the judgment debtor is naturally very much aggrieved by the order of Coussey J. made on 31 July 1972. He has therefore appealed from the said order. The point as to whether the judgment debtor has a right of appeal or not will in due course be properly looked into and authoritatively ruled upon by the Court of Appeal. I have no jurisdiction to go into the merits of an appeal lodged to the Court of Appeal.

Having lodged his second appeal in respect of the order made on 31 July 1972, can the judgment debtor apply to the High Court to suspend the fi. fa. taken out by the judgment creditor in pursuance of the said order of 31 July 1972? To answer this question we must refer to rule 21 of L.I. 218 which states:

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“After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole of the proceedings as between the parties thereto, and every application therein shall be made to the Court and not to the Court below, but any application may be filed in the Court below for transmission to the Court.”

The above rule deals only with the period after the appeal has been entered in the cause list by the registrar of the Court of Appeal when the registrar of the court below has complied with the provisions of rule 15 which state as follows:

“15 (1) The Registrar of the Court below shall transmit the record when ready together with— (a) a certificate of service of the notice of appeal;

(b) a certificate that the conditions imposed under rules 12 (4) and 13 have been fulfilled;

(c) five or three copies as the case may be of the record for the use of the Judges;

(d) the docket or file of the case in the Court below containing all papers or documents filed by the parties in connection therewith.

(2) The Registrar of the Court below shall also cause to be served on all parties mentioned in the notice of appeal a notice that the record has been forwarded to the Registrar, who shall in due

course enter the appeal in the cause list mentioned in rule 3 (1).”

During the transitional period from the moment the notice of appeal is lodged right up to the time the appeal is entered, the trial court can entertain interim applications especially on matters affecting execution. By virtue of its inherent jurisdiction to control the registrar, the bailiffs and the whole staff, the High Court is the appropriate forum to deal with the judgment debtor’s application, especially as the order was made on 31 July 1972 just when the Court of Appeal went on long vacation.

Having disposed of the preliminary objection raised by learned counsel for the judgment creditor I now turn my attention to consider the application on its merits to see whether it should be granted or refused. The judgment sought to be enforced awarded a total of ¢46,882.21 damages, including damages for loss of use calculated at ¢90.00 from the date of accident 28 January 1971 till date of judgment 14 June 1972. In view of the recent decision of the Court of Appeal in the case of West African Bakery v. Miezah [1972] 1 G.L.R. 78, C.A. in which all the relevant authorities on the question of assessing damages from date of accident were exhaustively reviewed, it appears on the face of the record that the award was made per incuriam. Furthermore the judgment creditor himself gave a clear impression in paragraphs (4) and (5) of his statement of claim that he was impecunious. In those paragraphs the judgment creditor pleaded as follows:

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“4. As a result of the collision the plaintiff’s said Bedford cargo truck was badly damaged causing the plaintiff considerable financial loss.

5. The damaged mechanical parts have been repaired at a cost of ¢5,529.11. The plaintiff paid a deposit of N¢1,000.00 against the cost of repairs but as he has been unable to pay the balance the repairers have not released the vehicle to him.”

The most important factor that must weigh with any court dealing with a motion for stay of execution is the question whether the judgment creditor will be able to refund the judgment debt if the appeal succeeds. Some of the authorities on the point are: Barker v. Lavery (1885) 14 Q.B.D. 769, C.A.; Bradford v. Young; Re Falconar’s Trusts (1884) 28 Ch.D. 18, C.A. and Wilson v. Church (No. 2) (1879) 12 Ch.D. 454, C.A.

The point was duly emphasized by the Supreme Court in its judgment in the case of Joseph v. Jebeile [1963] 1 G.L.R. 387 where the court made the following observation at p. 390:

“While we do not wish to say anything that may be interpreted as a fetter on the exercise of the discretion of a trial judge when he considers an application for stay of execution pending appeal we think it necessary in the interest of justice to say generally that when such an application is considered in a case involving, inter alia, the payment of money, the main consideration should be not so much that the victorious party is being deprived of the fruits of his victory, as what the position of a defeated party would be who had had to pay up or surrender some legal right only to find himself successful on appeal. In this respect it is wholly immaterial what view a trial judge takes of the correctness of his own judgment or of the would-be appellant’s chances on appeal, if the position (it is not of course suggested that that is the position in the case before us) is that the victorious party is unlikely to be able to refund the amount paid to him, or the defeated party to be restored to the status quo ante, in the event of a successful appeal (and it should not be difficult to determine the likelihood of such an event), then it would be palpably unjust to refuse stay of execution . . . .”

I would have ordered the judgment debtor to deposit the judgment debt and costs in court but for the fact that the amount is so enormous. It will obviously be inflicting an intolerable hardship to order the judgment debtor to deposit such a colossal sum in court pending appeal. Moreover in view of a very grave irregularity which occurred at the commencement of the action and which I discovered while writing this ruling, it is likely that the writ of summons served on the judgment debtor may be ruled by the Court of Appeal to be fatally irregular and void. The original summons on the court docket shows that the judgment creditor presented it for assessment on 10 September 1971 when the fees payable were stated on the summons to be ¢40.30, but it was not until 18 September 1971 that the necessary fee of ¢40.30 was paid as the official court receipt No. J.557556 dated 18 September 1971 shows.

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Yet the summons was served on the judgment debtor on 15 September 1971 even though the summons had not been officially sealed. The original summons has still not been sealed.

In the circumstances it will be better to suspend execution until the Court of Appeal has had time to consider the whole matter. The judgment debtor’s application is therefore granted.

DECISION

Stay of execution granted.

S.O.