GHANA LIBYAN ARAB HOLDING COMPANY LIMITED vs. EXOTIC TRENDZ

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D.2026

CORAM: PWAMANG JSC (PRESIDING)

ASIEDU JSC

DARKO ASARE JSC

DZAMEFE JSC

BARTELS-KODWO JSC

CIVIL APPEAL

NO: J4/37/2025

18TH MARCH, 2026

GHANA LIBYAN ARAB HOLDING …… PLAINTIFF/RESPONDENT/APPELLANT

COMPANY LIMITED.

VRS

EXOTIC TRENDZ ……. DEFENDANT/APPELLANT/ RESPONDENT

JUDGMENT

DZAMEFE, JSC: –

This is an appeal against the ruling of the Court of Appeal (Division) Accra, dated 27th June 2023.

FACTS

The plaintiff/appellant hereinafter simply referred to as the plaintiff issued a writ of summons and statement of claim dated 24th May 2019 against the defendant/appellant/respondent also referred to as the defendant for the following reliefs; –

The recovery of one hundred and six thousand, two hundred and thirty-three United States dollars and twelve cents (USD 106,233.12), being the outstanding rent and service charges of June 2016.

The recovery of one hundred and thirty-three thousand eight hundred and three Ghana cedis and twenty-three pesewas (GH133,803.23) being the outstanding rent and service charges as of June 2016.

Interest on (a) and (b) from June 2016 to the date of final payment at the prevailing bank rate.

General damages for breach of contract.

Costs of a full indemnity basis.

Any other order(s) which this honourable court deems fit.

The defendant entered appearance, filed a statement of defence and later an amended statement of defence and counterclaimed for the following reliefs;-

Damages for appellant’s fraudulent misrepresentations to respondent in respect of the construction of the hotel and the business prospects arising therefrom.

Damages for breach of the contractual obligation … appellant had to complete the hotel in the oxford street mall.

Costs

From the Record of Appeal, prior to the commencement of the trial, the High Court entered judgment on admission in favour of the plaintiff against the defendant on 25th October 2020 on the following terms;-

Recovery of US$93,277,06 being outstanding rent, service charge and car parking fees as of June 2016.

Recovery of Gh¢96,402.84 being outstanding utility charges as of June 2016.

Interest on (a) and (b) from June 2016 till 28th October 2020, date of judgment, at the prevailing commercial bank rate.

Costs of Gh¢4,000.00.

The court proceeded to trial in respect of the outstanding portions of the plaintiff’s claim with trial commencing on 29th October 2021 and ending on 18th May 2022. The trial court delivered its final judgment on 10th November 2022 in favour of the plaintiff and dismissed the defendant’s counterclaim in its entirety.

The defendant dissatisfied with the judgment appealed same by filing a notice of appeal on 20th June 2023 on the following grounds; –

The judgment is against the weight of evidence adduced at the trial.

The trial Court erred when it failed to take into consideration that the Applicant had made a deposit of 35,000 USD to the Appellant since 2016.

The trial Court disregarded the fact that the assessed cost incurred by the Applicant in putting the office space into a habitable store ought to be deducted from any monies due the Appellant/Respondent.

The trial Court erred when it ruled that the email reminder to the Appellant/Respondent to speed up the construction of the hotel to serve as the agreed flow of customers for Respondent business operations never placed any liability on the Appellant.

The defendant simultaneously filed a motion for stay of execution pending appeal on 20th January 2023, but same was refused on 3rd February 2023, whereupon it repeated same before the Court of Appeal on 8th February 2023. The Court of Appeal on 27th June 2023 granted the defendant’s repeat application for stay of execution pending appeal in part.

The plaintiff dissatisfied with the Court ruling ordering a partial stay of execution applied to the Supreme Court for Special leave to appeal against the Court of Appeal decision dated 27th June 2023, that granted the partial stay of execution.

This Court on 31st January 2024 granted Special leave to the appeal against the Court of Appeal’s ruling complained of.

NOTICE OF APPEAL

This is pursuant to the Special Leave granted by the Supreme Court on the following grounds; –

The learned Justices of the Court of Appeal, in partially granting the Respondent/Appellant/Respondent’s Motion for Stay of Execution pending Appeal, exercised their discretion improperly when they relied in a non-existent ground of appeal.

The learned Justices of the Court of Appeal exercised their discretion improperly when they granted the Respondent/Appellant/Respondent’s Application for Stay of Execution pending appeal even though the Respondent/Appellant/Respondent failed to demonstrate any exceptional circumstance.

SUBMISSIONS

GROUND I

Counsel for the appellant submits that the Court of Appeal in granting the Respondent’s repeat application for Stay of Execution based their decision on what it described as a “ground of appeal relating to the calculation of the US$ sum and interest thereon” which said ground of appeal, according to the appellant, raised a fundamental arguable point of law.

The beef of the appellant is that, there was no such ground of Appeal in the nature described by the Court of Appeal, for same to be a basis for the partial grant of the application for stay of execution pending appeal.

Counsel submits that in those circumstances, it was incumbent on the court to exercise a certain level of scrutiny, particularly in exercising their discretionary powers, to determine whether the grounds of Appeal, is indeed borne out of the record. It is his case that the Court of Appeal failed in its duty by granting a partial Stay of Execution on the basis of a non-existent ground of appeal, making the Court of Appeal’s decision susceptible to being set aside. That the Court of Appeal wrongfully exercised its discretion when it relied on a non-existent ground appeal to partially grant the respondent’s application for Stay of Execution pending appeal.

The applicant therefore prayed this Court to intervene by setting aside the order of the Court of Appeal, dated 27th June 2023, which said order partially granted the respondent’s application for stay of execution of the judgment dated 10th November 2022, pending appeal.

RESPONSE

Counsel for the respondent in his statement of case submits that the purported calculation of interest at the prevailing commercial bank rate on a claim in foreign currency was an issue correctly considered by the Court of Appeal because on the strength of legal authorities, the calculation of interest on sums in foreign currency such as the United States dollars is governed by the prevailing interest rate in that foreign currency and not the local rate of interest as contended by the applicant herein. Where the judgment debt or damages was to be paid in a foreign currency then the rules governing monetary transactions in that foreign currency in the foreign country will prevail unless expressly provided for or agreed upon by the contending parties.

Counsel referred this court to the following; –

GHANA PORTS & HARBOURS AUTHORITY VRS ISSOUFOU [1993/4] 1 GLR 24-60

COURTS (AWARD OF INTEREST) INSTRUMENT 1994 (L.I.1295)

Counsel submits further that, the grant or refusal of the application of Stay of Execution pending appeal is discretionary and the Court must do a balancing act. In so doing, the Court must ensure that a party who wins his case should not be prevented from reaping the fruits of his victory. On the other hand, the party who has appealed must also not end up with an empty victory as if he wins the appeal and the other party has already executed the judgment his judgment from the appeal may be rendered nugatory.

It is his case that the Court of Appeal in its ruling dated 23rd June 2025 complied with the need to maintain a balance between the Judgment Creditor/Respondent and the Judgment Debtor/Appellant.

Counsel argued that the ruling of the Court of Appeal was in exercise of its discretionary jurisdiction and to succeed in an appeal against same, the applicant must establish exceptional circumstances where the judges failed to act judiciously. Counsel submits further that where a legal point was not raised at the trial court, it can be raised for the first time on appeal and even before an appellate court. He referred the court to the case of AG vrs Faroe Atlantic Co. Ltd [2005/6] SCGLR 27 per Wood JSC (as she then was).

Counsel said an illegality that was not raised in the lower court, could be raised for the first time on appeal and where all the facts relating to a point of law are before it, the Court of Appeal will not hesitate to consider it.

The appellate court will also entertain an allegation of lack of jurisdiction when raised for the first time on appeal. Where the legal issue raised is substantial and could be disposed of without the need for fresh evidence, and also a substantial point of law that will not involve new facts, the appellate court will entertain it.

Counsel submits that the Court of Appeal in its ruling dated 23rd June 2024 was within it remit in concluding that the respondent’s plea that the applicant’s claim in foreign currency, calculation of interest on same in the local currency, raised major arguable issues for the appeal proper. Moreover, the ground of judgment against the weight of evidence covers the respondent’s argument that there existed exceptional circumstances warranting Stay of Execution pending appeal.

ANALYSIS

COURT OF APPEAL RULING ON 23RD JUNE 2024 -PAGE 49 ROA)

BY COURT: – “The application before us is a repeat application for stay of Execution. Having read all the processes and heard both counsel for and in opposition to the application, we are of the considered view that the Applicant’s ground of appeal relating to the calculation of the US$ sum and interest thereon raised a fundamental arguable point on the basis of which the application for stay must be partially granted. We accordingly Stay Execution of numbers 1 &2 of the Notice of Revised Entry of Judgment i.e. exhibit ‘4’ and dismiss the application for Stay related to numbers 3, 4, 5 & 6. Application granted in part”.

Stay of Execution is simply the suspension of the operation of a judgment or an order, put differently an order suspending the execution of the judgment or order of a court. Although the court will not without good reason delay a successful plaintiff in obtaining the fruits of his judgment, it has power to stay execution if justice requires that the defendants should have this protection. If a judgment is given or an order made for the payment of money the debtor may apply then or later for a stay. The court, if satisfied that there are special or exceptional circumstances which render it inexpedient to enforce the judgment or that the judgment debtor is unable for any cause to pay the money, may stay execution. The application must be supported by an affidavit showing the grounds and relevant facts to succeed, but of course mere service of a notice of appeal does not operate as a stay.

It is trite learning that an application for Stay of Execution of a judgment must succeed, if the applicant can demonstrate and satisfy the court that there are arguable points in the appeal. It must also be shown that the applicant had a clear right which deserves preservation, and also that the applicant would suffer greater or irreparable loss or hardship if the stay was refused, then the court would exercise its discretion in favour of the applicant and grant the stay.

Again, it is a well established principle of law that an appellate court to which an application for stay of a judgment which is the subject matter of an appeal has been made must see to it that the appeal, if successful, is not rendered nugatory. This is the paramount duty of the appellate court.

The refusal or granting of an application of stay of execution is at the discretion of the court. However, there are settled principles that guide the court in exercising it’s discretion. It has also been the position of this court that the settled principles need not to be followed in a straitjacket manner but the circumstances of each case ought to determine how the principles are applied.

The principles for considering an application for stay of execution pending appeal were all settled; the main principle adopted by the courts was what the position of the appellant would be if the judgment were to be enforced and the appeal was successful. In effect, the essential point in considering such applications was whether the applicant would be returned to the status quo ante should the appeal succeed. Another determining principle was which of the parties would suffer greater hardship should the application be granted or refused.

See NII TETTEY OPREMEREH II AND NII ADAM SORSEY VRS. KOMEXA LIMITED AND 4 OTHERS [2021] DLSC 9998– DORDZIE JSC

The court in granting or refusing an application for Stay of Execution pending the determination of an appeal acts according to well settled principles that enables it to bridge the gap in the intervening period between the delivery of the judgment in the court below and the time that the appeal is finally determined in order to deal with the rights of the parties in the pending appeal by the grant of interim or provisional remedies, which among others ensure that a successful appeal is not rendered nugatory.

COURT OF APPEAL

The Court of Appeal ruling dated 27th June 2023 which is basis of this appeal, was based on the “Notice of Revised Entry of Judgment” i.e. exhibit 4.

NOTICE OF REVISED ENTRY OF JUDGMENT

Dated and entered this 18 day of November 2022.

This action having come on before the High Court, Commercial Court 5, Accra, presided over by His Lordship, Justice Constant K. Hometowu on the 10th day of November 2022 and His lordship, having granted final judgment in favour of the Plaintiff. It is adjudged that Judgment be entered for the Plaintiff, as follows:

NO.

ORDER

AMOUNT

1.

Recovery of the Ghana Cedi (GHC) equivalent of US$ 106,233.12, being rent arrears as of June 2016

GHC 1.528,694.601

2.

Interest on the aforementioned GHC 1,528,694.60 at the prevailing rate?, from June 2016 to November 2022

GHC 3,923.649.493

3.

Recovery of arrears of Utilities as of June 2016

GHC118, 532.43

4.

Interest on the aforementioned GHC 118, 532.43 at the prevailing rate, from June 2016 to November 2022

GHC304,233.22

5.

Damages for Breach of the Lease Agreement

GHC 50,000.00

6.

Cost after the cause

GHC 50,000.00

TOTAL

GHC 5,975,109.74

The Court of Appeal stayed execution of Numbers 1 &2 of the Notice of Revised Entry of Judgment as above.

Number 1 – Recovery of the Ghana Cedis (GHC) equivalent of US$106,233.12 being rent arrears as of June 2016 – Gh¢1,528,694.60.

Number 2 – Interest on the aforementioned Gh¢1,528,694.60 at the prevailing rate from June 2016 to November 2022- GH¢3,923,649.48

Counsel for the respondent herein informed the Court of Appeal in his submission that the revised entry of judgment filed by the appellant herein is far greater than what was due and that the local prevailing rate in Ghana is being used whilst most of the judgment debt was in the US dollars hence the prayer for the order staying its execution.

Counsel for the appellant herein hold the Court of Appeal in response to the appeal that, there were no exceptional circumstances to warrant the grant. They also denied calculating interest on dollars but was the cedi equivalent.

The Court of Appeal in its ruling stated that it granted the application partially because in its considered view, the applicants’ ground of appeal relating to the calculation of the US dollars sum and interest thereon raises a fundamental arguable point (emphasis mine).

It is the case of the respondent herein that the trial High Court made awards in foreign currency when it had no power or authority to do so since it offend the provisions of the Foreign Exchange Act (Act 723). Counsel submits that the Foreign Exchange Act (Act 723) prohibits.

Engaging in Foreign exchange business without a licence issued by the Bank of Ghana.

Pricing, advertising, receipting or making payments for goods and services in foreign currency in Ghana without authorization from the Bank of Ghana.

Counsel submits further that the issue of demands for payment of rent in United States dollar found no favour of the Court of Appeal and it held correctly that the appeal relating to calculation of the US$ sum and interest therein raises a fundamental arguable point on appeal and therefore constitutes exceptional circumstances for the grant of stay of execution pending appeal.

Counsel for the respondent said the issue of claim in foreign currency, calculation of the debt in United States dollars are all part of the appeal records and the Court of Appeal did no wrong in hearing the respondent’s argument on those issues. This is in answer to the appellants’ ground of appeal which states that the Court of Appeal, in partially granting the motion for stay of execution pending appeal, exercised their discretion improperly when they relied on a non-existent ground of appeal.

What is the position of the law, when a ground of appeal is not specifically listed before the appellate court?

The Court of Appeal and the Supreme Court have the power to decide an appeal on grounds that are not specifically set out by the Appellant if it serves the interest of justice. If new points arise that are necessary for determining the real matter in controversy, the court may allow them, especially if the opposing party has had the opportunity to address them. The court will not typically entertain entirely new issues that were not raised in the court below, especially if they require fresh evidence, unless they are questions of law that do not need further evidence.

While the rules of court set strict requirements for filing grounds of appeal, they also grant appellate courts the discretion to look beyond them to ensure “substantial justice”.

Rule 8 (8) of the Court of Appeal Rules, 1997 (C. I. 19) provides that the court shall not be confined to the grounds set out, provided the Respondent has had a “sufficient opportunity” to contest the case on that new ground. The courts have held that they may consider additional grounds even without formal leave, if it is necessary to reach a fair and final determination.

See:-

VALCO LTD VRS AKUFFO – (2004) JELR 65742 (SC) 

EDEM AFFRAM VRS BERNARD YAW OWUSU – (2023) JELR 110981 (SC)

Rules 8 (8) states: –

The appellant shall not without the leave of the court, argue or be heard in support of a ground of objection not mentioned in the notice of appeal, but the court may allow the appellant to amend the grounds of appeal on the terms that the court thinks just.

Counsel for the Respondent contended that the purported calculation of interest at the prevailing commercial bank rate or claim in foreign currency was an issue correctly considered by the Court of Appeal because on the strength of legal authorities, the calculation of interest on sums in foreign currency, such as the US Dollars is governed by the prevailing interest rate in that foreign currency and not the local rate of interest as contended by the applicant herein.

See GHAPOHA V. ISSOUBU (Supra).

Two issues arise in this appeal to my mind:-

Interest rates on foreign currency transactions, and

Whether an appellate court is bound by the grounds of appeal listed before it.

INTEREST RATES

L. I. 1295 (Courts Award of Interest) Interest, 1984, used to be the L. I. that governs the calculation of interest on judgment debts. This L. I. is often cited in cases to ensure that judgment creditors are not disadvantaged by inflation, providing a realistic interest rate (the bank rate) instead of outdated fixed percentages. It was revoked and replaced by the court (Award of interest and Post Judgment Interest) Rules 2005 (C. I. 52) which came in to force on January 24, 2006.

The Court of Appeal in the instant appeal considered the issue of claims in foreign currency and came to the conclusion that on the strength of our legal authorities, the calculation of interest on sums in foreign currency is governed by the prevailing interest rate in that foreign currency in the foreign country and not the local rate of interest as contended by the applicant herein.

The rate of interest awarded by the court on any judgment sum ordered to be paid to a party in any civil cause or matter was the bank rate prevailing at the time of the order. That would be the bank rate prevailing in Ghana at the relevant time. The rate was however applicable to transactions dealt with in local currency but where the judgment debt or damages was to be paid in a foreign currency then the rules governing monetary transactions in that foreign currency in the foreign country would prevail unless expressly provided for or agreed upon by the parties themselves. If a judgment is given in a foreign currency, the rate of interest awarded is typically that of the foreign currency’s home country other than the Ghana bank rate. However, as stated above, if an agreement between the parties specifies a particular interest rate for a foreign currency transaction, the court will generally award that specific rate as long as it is legal.

It is interesting to note however that, in Ghana though interests in foreign currency transactions are governed by the courts (Award of interest and Post Judgment Interest) Rules, 2005 (C. I. 52) and the Foreign Exchange Act, 2006 (Act 723), none of these specifically mentioned interest awards in foreign currency. Ghana however developed its interest on foreign currency from case law. There are a plethora of authorities from our courts that suggest that interests awarded on foreign transactions are the interest rates of the country of the currency, for example dollar interest rates for the specific time in the United States will be used in Ghana for the interest rate to be awarded.

This practice is supported by the decisions of this court in the following cases;-

NATIONAL INVESTMENT BANK LTD (NIB) V. SILVER PEAK LTD [2003-2004] 2 SCGLR 1008 where Date-Bah stated that;-

“It makes commercial sense for a dollar debt to attract a dollar interest rate because that interest rate (influenced by the rates set by the Federal Reserve Board) reflects the macroeconomic conditions of the United States, which determine the rates applicable to dollar-denominated debts worldwide. Similarly, it makes commercial sense for a cedi debt to attract a cedi interest rate since that interest rate reflects Ghanaian macroeconomic conditions (including, for instance, the rate of depreciation of the cedi against the leading foreign currencies and high interest rates). Thus if a cedi interest rate is applied to a dollar obligation, the obligee (that is, the creditor) will be overcompensated because the cedi interest rate, which necessarily reflects the high inflation rates in Ghana, will be applied to a dollar obligation which has not been subjected to that high inflation rate”.

ROYAL DUTCH AIRLINES (KLM) V. FARMEX LTD [1989-90] 2 GLR 682 SC.

In this case, the majority was of the opinion that the rate of interest payable on €23,800 awarded as damages should be the pound sterling commercial rate at simple interest prevailing in the United Kingdom as at the date of final judgment, and not the bank rate prevailing in Ghana. The Court stated that,

“On its face, the language of L.I.1295 impels me to conclude that its application is to be limited to transactions dealt with in local currency and must not be stretched to cover and include transactions involving the use of foreign currencies…..

The court awarded damages and interest on the basis that the plaintiffs had lost sums due to them from the defendants. The damages were expressed in pound sterling in order to reimburse them and not to enrich them. Equity follows the law and the principle of law underlying the award of damages is restitutio in integrum. If this principle is to be achieved in the instant case them I think the proper view to take of the matter is to allow the application and to construe the term. “Bank rate” as at 19 December 1990 as stated in the order of the court with reference to the “Bank rate” prevailing at the relevant date in the United Kingdom. This approach in my respective view would avoid the possibility of unjustly enriching one of the parties at the expense of the other. I see no justification in applying L.I.1295 to the facts of this case since the tendency to breach the principle of restitution in integrum is very high, thereby, defeating the ends of justice”.

GHANA PORTS AND HARBORS AUTHORITY V. ISSOUFOU [1992-1993] 1GLR. In this case, Wiredu JSC referred to the majority decision in the case of Royal Dutch Airline vrs Farmex (supra) by positing that,

“…I have however decided to record my personal reservations on the opinion and views expressed by my brother Aikins JSC on the issue raised for determination in the Royal Dutch Airlines (KLM) v. Farmex Ltd [1989-90] 2 GLR 623, SC. To me, the issue was not merely one of interpretation of the Courts (Award of Interest) Instrument, 1984 (LI 1295) but was one as to the scope and extent of its application, i.e. whether LI 1295 was to be applied in all cases even if the general award was in foreign currency? The majority of this court held that where the award was in foreign currency, the rate of interest ought to be calculated on the prevailing rate applicable in the country which currency was used in making the award.”

In conclusion, the interest rates on awards in foreign currency transactions is the prevailing interest rates at the specific time of the judgment in the country of the currency involved.

Back to the grounds of appeal, the first ground of appeal was that the Court of Appeal granted the Respondent’s request application for stay of execution of appeal relating to the calculation of the US$ sum of interest. The appellant’s beef is that the Respondent’s Notice of Appeal filed on 20th January 2023, contains no such ground of appeal in the nature described by the Court of Appeal, for same to be a basis for the partial grant of the application for stay of execution pending appeal.

The Court of Appeal in its ruling held:-

“…we are of the considered view that the Applicant’s ground of appeal relating to the calculation of the US$ sum and interest therein raised a fundamental arguable point on the basis of which the application for stay must be partially granted” – [page 49 ROA]

The first relief of the Plaintiff was the recovery of USD106,233.12 being the outstanding rent and service charges as of June 2016. Relief ‘c’ is interest on the same sum from June 2016 to the date of final payment at the “prevailing bank rate”.

With these two reliefs, the court was faced with the determination of the outstanding rent and service charges, both in foreign currency and the interest thereon. The trial court must first ascertain the correctness of the figures mentioned as the outstanding rent and service charges and thereafter the interest thereon. From the evidence on record, the Defendant though admitted its indebtedness to the Plaintiff, disputed the amount claimed by the Plaintiff in paragraph 10 and 11 of the statement of defence.

The Court of Appeal heard counsel on both sides and also read all processes filed and came to the conclusion that the Appellant therein (Respondent herein) raised a fundamental arguable point on the calculation of the US$ sum and interest thereon which was worth hearing by the appellate court (Court of Appeal) hence, the partial grant of the repeat application for stay of execution.

In considering whether or not to grant an application for stay of execution pending appeal, the court is minded to consider whether or not exceptional circumstances exist to warrant a grant of the order. Some of the conditions that constitute exceptional circumstances, though not limited, are as follows:-

Has the applicant mounted a valid appeal to the court.

Is the judgment sought to be stayed executable or does it have executable consequences.

What is the likelihood of success of the Applicant’s appeal? In other words, whether the appeal is not frivolous;

Will the subject-matter of the appeal be irretrievably lost should the appeal (which on the face of it is not frivolous) succeed? In other words, will the pending appeal or judgment be rendered nugatory if execution is not stayed;

Has the Applicant demonstrated sufficient good faith and does the application for stay appear to be intended to enable the Applicant contest the appeal or it is for a collateral reason such as an undue advantage, overreaching or even to frustrate and/or deny the victorious party of the fruits of the judgment;

Will the Applicant suffer irreparable loss, hardship, damage or injury if the execution of the judgment is not stayed?;

On the balance of hardship, will the Applicant suffer greater hardship than the Respondent if the execution of the judgment is not stayed.

The burden is thus on the Applicant to demonstrate the existence of these considerations which would amount to exceptional circumstances to motivate a determination of an application for an order for stay of execution pending appeal in the Applicant’s favour.

The principles for considering an application for stay of execution pending appeal were well settled:  the main principle adopted by the courts was what the position of the appellant would be if the judgment was to be enforced and the appeal was successful.  In effect, the essential point in considering such application was whether the applicant would be returned to the status quo ante should the appeal succeed.  Another determining principle was which of the parties would suffer greater hardship should the application be granted or refused. See NDK Financial Services vrs. Yiadom Construction and Electrical Works Ltd. [2007-2008] SCGLR 93.

It is the paramount duty of a court to which an application for stay of execution pending appeal is made to see that the appeal, if successful, is not nugatory. Wilson v. Church (No. 2) (1879) 12 Ch.D. 454 at pp. 458-459 applied – JOSEPH V. JEBELE AND ANOR. [1963] 1 GLR 387

In the case of GOLDEN BEACH HOTELS GHANA LIMITED VRS PACKPLUS INTERNATIONAL LIMITED (2012) JELR 68109 (SC) this court made reference to the principle in JOSEPH V. JEBELE (supra) and stated that “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, or, when stay of execution is refused, not to order the judgment creditor to give good, substantial and realisable security for the refund of the money involved”.

A stay of execution… means simply the suspension of any process or procedure that would post date the judgment. If an applicant asks for such stay pending the hearing and determination of his appeal, that what he is in effect asking is that all processes that can be taken after judgment for the purpose, no doubt of satisfying the judgment, should be stayed until the appeal is finally heard and a decision on it given.

See – THE REP VRS. COURT OF APPEAL, EXPARTE SIDI [1987/8] 2 GLR 170 – TAYLOR J

We do not find any error with the ruling of the Court of Appeal since they exercised their discretion fairly and within the remits of their powers. To the court, the applicant has established exceptional circumstances to warrant the grant and same shall not be disturbed.

Counsel for the Appellant averred that the Court of Appeal relied on a non-existent ground of appeal. There are a plethora of legal authorities that say that the appellate court is not obliged, in deciding the appeal to confine itself to the grounds set forth by the appellant; nor is it precluded from resting its decision on a ground not set forth by the Appellant. This is notwithstanding the requirement for an Appellant to set forth the grounds of appeal. The Court of Appeal is not to be confined only to the points mentioned in the notice of appeal but will consider, so far as may be relevant, the whole of the evidence given in the trial court, and also the whole course of the trial, since appeals are by way of re-hearing. In that exercise of re-hearing the appellate court looks at the evidence in totality to do total justice which may go beyond the grounds of appeal listed by the appellant.

It is the duty of the appellate court to look beyond the grounds of appeal. Appellate judges need to appreciate the fact that their jurisdiction is one of correction, which requires them to interrogate proceedings beyond the grounds of appeal in order to uphold their onerous duty of deciding cases according to law.

SAMPSON OBENG & KWAME MUSAH VRS KWABENA MENSAH [2019] DLSC 6579 – GBADEGBE JSC

Rule 6(7) (b) of C. I. 16 reiterates the point that this court shall not confine itself to only the grounds of appeal filed in deciding the merits of an appeal before them. The court is at liberty to explore other grounds of appeal or issues in deciding an appeal before them. But there is a caveat, in the sense that in doing so the court is obliged to give reasonable opportunity to the parties or their counsel to be heard on that point or grounds without re-opening the entire appeal. FRED ROBERT COLEMAN VRS JOE TRIPOLLEN & ORS [2018] DLSC 4131 – JONES DOTSE JSC

In the instant appeal, the Court of Appeal never erred when it considered the calculation of the amount in issue and the interest thereon. This is supported by the fact that the amount is in foreign currency and the interest regime is different from the local currency interest rates. We do not see any error by the Court of Appeal in holding so and that ground of appeal is hereby dismissed.

On the second ground that the appellant failed to demonstrate any exceptional circumstances, the Court of Appeal held it did. The calculation of the amount involved was in dispute just as the interest thereon and these qualified as exceptional circumstances worth arguing before the Court of Appeal.

That ground is also dismissed as lacking merit.

The whole appeal is hereby dismissed.

(SGD.) S. DZAMEFE

(JUSTICE OF THE SUPREME COURT)

(SGD.) G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

(SGD.) S. K. A. ASIEDU

(JUSTICE OF THE SUPREME COURT)

(SGD.) Y. DARKO ASARE

(JUSTICE OF THE SUPREME COURT)

(SGD.) J. BARTELS-KODWO

(JUSTICE OF THE SUPREME COURT)

COUNSEL

NANA AGYEI BAFFUOR AWUAH ESQ. FOR THE PLAINTIFF/RESPONDENT/

APPELLANT WITH HIM AKOSUA OPAREBEA ADU-ADJEI ESQ.

JAH JOSIAH ESQ. FOR THE DEFENDANT/APPELLANT/RESPONDENT