KAMARA v. TRAORE [1968] GLR 1009
13 November 1968 · ANNAN J · ≈ 5 min read
[1968] SLR (HC) 43Other citation styles and permanent link
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DIVISION: HIGH COURT, KUMASI
DATE: 13 NOVEMBER 1968
BEFORE: ANNAN J.
NATURE OF PROCEEDINGS
APPLICATION to the High Court for an order staying the execution of the judgment of the district court pending appeal. The facts are sufficiently stated in the ruling.
COUNSEL
Kofi Sackey for the applicant.
Dr. Aboagye for the respondent.
JUDGMENT OF ANNAN J.
This application is for an order staying execution of the judgment debt and costs ordered by the District Court Grade I, Kumasi, in the above-mentioned suit pending the hearing and determination of the appeal of the applicant to this court.
The facts, not in dispute, show that the applicant, the defendant in the suit, submitted to judgment on the plaintiff-respondent’s claim. The suit was for a debt of N¢1,000.00 and was on the undefended list. The plaintiff’s writ of summons states that he had given the defendant financial assistance to enable him take delivery of his vehicle after repairs. The defendant had promised to repay the loan within a week. In the trial court, the defendant filed a notice of his intention to defend with an affidavit admitting the plaintiff’s claim. He, however, put in a counterclaim for N¢2,000.00 damages in his affidavit and then asked for a stay of execution of any judgment that may be awarded against him pending the hearing and determination of the counterclaim. The defendant’s counterclaim was based on allegations that the plaintiff had, without any lawful justification, seized the defendant’s vehicle by taking its ignition key and removing the battery. The vehicle was then loaded to its maximum capacity with goods for transportation to Mali. The vehicle was under unlawful seizure from 5 October 1968 till 17 October 1968. The plaintiff had behaved in this manner because the defendant had not paid the loan of N¢1,000.00. The defendant therefore claimed special damages of N¢1,724.50 and general damages of N¢380.00. When the matter came on for trial before the district magistrate on 31 October 1968, judgment was entered against the defendant for the sum admitted by him and the defendant’s application for a stay of execution and for transfer of his counterclaim to the appropriate court was refused, and the counterclaim was struck out. The defendant’s appeal is from the order striking out the counterclaim and refusing stay of execution.
[p.1011] of [1968] GLR 1009
The counterclaim is admittedly outside the jurisdiction of the district court and there was therefore no question of that court trying that claim. It was contended however that it should have remitted the claim to the appropriate court for determination and this argument was supported by reference to the Courts (Amendment) Decree, 1968 (N.L.C.D. 277), para. 1 (b) which amended the Courts Decree, 1966 (N.L.C.D. 84), para. 52. In my view that provision is not apt to justify the argument. The provision is clear that it applies only to a writ of summons for proceedings to be commenced in the High Court or a circuit court. A counterclaim is a cross-action and is therefore a separate action and it is filed to commence proceedings in the court in which the plaintiff’s claim is filed. Clearly a counterclaim cannot come into being independently of a claim by a plaintiff and it cannot be said that a counterclaim issued in the district court is a claim for the commencement of an action in either the High Court or a circuit court. The provision relied on by counsel for the applicant merely provides a convenient and useful administrative measure to enable writs of summons for actions in either court to be accepted for filing in the district court, and makes provision for their subsequent transmission to the appropriate court in which on the face of the writ the plaintiff desires to commence his suit. That being so the district court could not, by virtue of N.L.C.D. 84 as amended, transfer the counterclaim to any other court for trial assuming that a generous interpretation is permissible of the statutory provision to equate a counterclaim to a writ of summons. The order striking out the counterclaim does not therefore seem to me to be wrong. Assuming however, that that order was wrong, is a defendant entitled to an order of stay of execution merely because he has a valid cross-action pending for determination against the plaintiff ? I think not. The existence of a right in a party to sue or an actual suit cannot, per se, operate to prevent a successful party from enjoying the fruits of his litigation. It is also clear that an appeal cannot, per se, operate as a stay of execution. I think the main consideration in applications such as this is the question whether a successful party either on appeal or in the cross-action is likely to find his efforts nugatory and where there is no reasonable ground to show such a likelihood, the application ought not to be granted. On the affidavit there is no averment that the plaintiff is not in a position to meet any judgment that may be awarded the defendant on his counter-claim. That claim itself is not admitted, and then there is the fact that the plaintiff was able to grant a loan of N¢1,000.00 to the defendant. If that transaction is any guide at all in the consideration of the material position of the plaintiff, then it affords grounds to show that the plaintiff is not impecunious. He has established his [p.1012] of [1968] GLR 1009 claim by due process of law. The defendant has not. I see no ground for denying him the fruits of victory.
The application is dismissed with costs of N¢50.00 to the plaintiff-respondent.
DECISION
Application dismissed with costs.
L. F. A.
