STANDARD BANK OF WEST AFRICA LTD. v. BOAITEY [1971] 2 GLR 308

DIVISION: IN THE HIGH COURT, KUMASI

DATE: 28 JUNE 1971

BEFORE: TAYLOR J.

CASES REFERRED TO

(1) Vanderpuije v. Akwei [1971) 1 G.L.R. 242.

(2) Inkumsah v. The State, Court of Appeal, 18 December 1967, unreported; digested in (1968) C.C. 55.

(3) In re Knight and the Tabernacle Permanent Building Society [1892] Q.B. 613; 62 L.J.Q.B. 33; 67 L.T. 403; 8 T.L.R. 783, C.A.

(4) Maxwell v. Keun [1928] 1 K.B. 645; 97 L.J.K.B. 305; 138 L.T. 310; 44 T.L.R. 100; 72 S.J. 48, C.A.

(5) Republic v. Minister of Interior; Ex parte Lynes, Court of Appeal, 22 July 1970, unreported.

(6) Bank of Ghana v. Labone Weavers Enterprises Ltd. [1971] 1 G.L.R. 251, C.A.

[p.310] of [1971] 2 GLR 308

(7) MacFoy v. United Africa Co. [1962] A.C. 152; [1961] 1 W.L.R. 1405; 105 S.J. 1067; [1961] 3 All E.R. 1169, P.C.

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

(9) Ex parte Association of Architecis [1950] A.L.R. 827.

NATURE OF PROCEEDINGS

MOTION on notice by the applicants that an appeal filed by the respondent judgment debtor should not operate as a stay of execution.

COUNSEL

L. B. Akainyah for the applicants.

No appearance by or on behalf of the respondent.

JUDGMENT OF TAYLOR J.

This is a motion on notice by the plaintiff-respondent-applicants hereinafter referred to simply as applicants praying for an order of this court that an appeal filed by the defendant-appellant-respondent referred to herein as respondent, should not be made to operate as a stay of execution. In order to understand the reason for the application and to be in a position to decide whether it is desirable to grant or refuse it, it is in my view necessary to advert to the facts and history of the case as well as the nature of the decision against which the appeal is lodged. On 16 September 1970 the applicants sued the respondent claiming a sum of money and interest representing overdraft facilities which the applicants granted to the respondent for one month and which sum of money payable at the end of November 1969, the respondent had neglected to pay. On 10 November 1970 judgment by consent was given in this court in favour of the applicants for the sum claimed, namely, N¢8,878.45 with interest at ten per cent. per annum from 12 September 1970 to 10 November 1970 calculated by consent to be N¢183. 55 with N¢500. 00 costs. On 29 March 1971 the respondent, the judgment debtor, moved this court for a stay of execution under the judgment and for payment of the judgment debt and costs by instalment. I doubt whether there is jurisdiction to entertain the application as will appear hereinafter in this ruling. The matter however was never raised and I dealt with the application with indulgence and proceeded on the assumption that there was jurisdiction. In paragraph (13) of the affidavit in support of the motion the respondent herein in suggesting his own mode of payment deposed as follows: “That to show my good faith I am prepared to make a down payment of two thousand new cedis (N¢2,000.00) and promise to pay the balance by monthly instalment of five hundred new cedis (N¢500. 00).” He deposed further in paragraph (11) of the said affidavit that the judgment creditor, the applicants herein, were threatening to sell his hotel which cost him N¢300,000.00 to build. On 29 March 1971 when the motion was called Mr. Berko at that time the counsel for the respondent herein asked for adjournment to 31 March 1971 to advise the respondent to make the down payment of N¢2,000.00 which by his affidavit he had deposed he was prepared to pay, but on the said adjourned date neither the respondent nor his counsel appeared in court and the application was as a result struck out for want of prosecution with N¢30.00 costs awarded against the respondent.

[p.311] of [1971] 2 GLR 308

On 19 April 1971 the respondent applied to this court to relist his motion for stay which had been struck out. He was not represented by counsel but his application was granted subject to his paying costs of N¢15.00 and the case was relisted for hearing on 3 May 1971. On 3 March 1971 the respondent applied for an adjournment to brief another counsel as his counsel would seem to have deserted him; the adjournment was duly granted again subject to N¢10.00 costs against him. The case was accordingly adjourned again to 10 May 1971.

On the adjourned date, 10 May 1971, the respondent was represented by another counsel Mr. Mmieh who asked for a further adjournment to study the case on the ground that he had just received the papers. The respondent had this further indulgence and the case was duly adjourned to 17 May 1971 and he was as usual mulcted in costs, this time N¢10.00.

On 17 May 1971 the respondent by his counsel finally moved the court. Although he had deposed that he was prepared to pay N¢2,000. 00 as aforesaid and his former counsel had asked for an adjournment to advise him to pay this sum of money, nevertheless on 17 May 1971 his counsel asked on his behalf for further time to the end of the month to pay the said N¢2,000.00. No reasons were given why the respondent wanted time. In their affidavit in opposition the judgment creditors, the applicants herein, had deposed that the respondent is not only engaged in the timber business but that he is a man of means and the sole proprietor of a prosperous hotel. These averments in the affidavit of the applicants were not challenged by the respondent. In the result the application for stay was dismissed with costs assessed at N¢50.00.

On 17 May 1971 the same day after the respondent’s application had thus been dismissed the solicitors for the applicants herein wrote to the registrar to proceed with the execution which had apparently been suspended pending the hearing and determination of the motion for stay. In the meantime on 18 May 1971 the respondent appealed to the Court of Appeal by filing a notice of appeal at the High Court against the ruling of 17 May 1971 dismissing his application for stay of execution. The ground of the appeal which must have been drafted by the respondent or his counsel with a twinkle in the eye and filed with a chuckle is the omnibus ground with which our courts are so familiar. I will run the risk of refraining from specifically mentioning it, in the sure knowledge that it is well known to all persons with any pretensions to knowledge of practice at the Ghana Bar. That ground seems to be the refuge of a drowning man at sea clinging to straws. Be that as it may on 21 May 1971 the senior registrar of this court wrote to the solicitors of the applicants in reply to their letter of 17 May 1971 aforesaid that the respondent had appealed and intimated, inter alia, to the solicitors as follows: “Since an appeal operates as a stay of execution, I am suspending the execution of your fi.fa. in question to await any other order that the court might subsequently make.” I have no doubt that this must indeed be precisely what the respondent surreptitiously wanted. He must have, on advice, been under the impression that he has so manoeuvred the process of the court by his appeal that the long: period during which the appeal will be pending will [p.312] of [1971] 2 GLR 308 give him a breathing space and confound the applicants. However, on receipt of this letter the solicitors of the applicants brought this application asking for an order that the appeal should not operate as a stay of execution and for any further order or orders as to this court may seem meet. He must have considered the application hopeless for he disdainfully kept away from court.

On the application coming before me on 21 June 1971, the respondent true to his past practice was not even represented although he had been served with the motion papers and supporting affidavit on 4 June 1971 long before the hearing date. I think before considering the merits of the application on the facts it is necessary to examine the legal implication of rule 27 of the Supreme Court Rules, 1962 (L.I. 218), as amended by the Court of Appeal (Amendment) Rules, 1969 (L.I. 618). That rule provides: “An appeal shall operate as a stay of execution or of proceedings under the judgment or decision appealed from except so far as the Court below or the Court may otherwise order.”

In Vanderpuije v. Akwei [1971] 1 G.L.R. 242, Hayfron-Benjamin J. did some penetrating analysis of the scope and purpose of this rule. Although I am unable to agree completely with him I have found his effort very illuminating indeed. I must say though that the problem I have to contend with is slightly different from the problem be dealt with. In the case decided by Hayfron-Benjamin J. the application was for an order that proceedings in the suit itself should not be stayed pending an appeal from an interlocutory decision to the Court of Appeal. In this case the substantive proceedings have been concluded and there is nothing further pending before this court. Furthermore the ruling of this court dismissing the application for a stay of execution is certainly not a judgment; consequently what the applicants are asking for, having regard to the facts and the history, is as indicated at the commencement of this ruling an order that the appeal of the respondent against the ruling of this court delivered on 17 May 1971 should not be permitted to operate as a stay of execution of the judgment of this court delivered on 10 November 1970. Thus formulated it becomes clear that the registrar by his letter already referred to, has misconceived the scope and ambit of L.I. 618. Hayfron Benjamin J. in his invaluable judgment in Vanderpuije v. Akwei (supra) would seem to have adverted albeit obliquely to this problem. At p. 249 he said: “The wording of L.I. 618 makes it clear that it operates only to stay proceedings that may be taken under the order itself. In this case, the order refusing … being only procedural, there is nothing to be done under it.” I will adopt this language mutatis mutandis. Indeed if for the word “proceedings” the word “ execution” is substituted and the word “order” appearing after “case” is replaced by “decision” the dictum will apply perfectly well to the case I am dealing with. In my view an appeal as is referred to, and as is intended by the said L.I. 618, operates only to stay execution which may be taken under the judgment or decision appealed against. It seems to me that “decision in the context of L.I. 618 must necessarily be a decision which has the effect of or involves an order

[p.313] of [1971] 2 GLR 308 to do or not to do something, so that if the person against whom the decision is given appeals then what the decision enjoins to be done or not to be done will be statutorily stayed pending the hearing and determination of the said appeal.

In the case before me the respondent who is legally bound to pay the judgment debt in any event applied to this court for an order permitting him to pay the said judgment debt by an initial down payment of a part and the balance by instalment. This was refused. The refusal has not the effect of ordering him to do something or not to do something which he was not originally bound to do or not to do and which can consequently be stayed.

Now to talk of a stay of execution under the decision in the circumstance of this case necessarily implies that the decision is one in respect of which execution can issue. The respondent asked for a stay of execution and his request was refused. This indeed is the effect of the dismissal of the application: The request for payment by instalment and a stay of execution was refused. Is there any execution which could issue to give effect to this refusal. In my opinion there is none. Of course I agree that after the refusal implicit in dismissing his application, costs assessed at N¢50.00 were awarded against the respondent. This is clearly an order and if there is an appeal against this order, execution under the order will be stayed. But we are concerned here not with an appeal against the order as such but with an appeal against the refusal. Surely there can be no question of a stay of execution in respect of the refusal; therefore apart from a stay of execution in respect of the costs, the only execution which could issue is execution in respect of the judgment of 10 November 1970 and since there has been no appeal from that judgment there can be no question of a statutory stay of execution by virtue of L.I. 618. In the result it seems that execution in respect of the judgment of 10 November has not been statutorily stayed. There is no doubt that pending an appeal this court has a discretion to order that the appeal shall not operate as a stay of execution the judgment or decision appealed from, but in my opinion the decision itself must be one capable of being enforced by execution before this court can order that execution should not operate as a stay. If there is nothing to be stayed then nothing can be stayed even by statute and it will be an abuse of language and an exercise in futility to order that the appeal shall not operate as a stay of execution.

There is a further reason why I think the applicants may very well be entitled as of right to proceed into execution without the necessity of applying for an order to go into execution. An appeal to operate as a stay of execution must in my opinion be an appeal in respect of a matter on which there is a right of appeal. If there is no right of appeal then on general principles the appeal is a nullity and ought to be ignored. This in my view is clearly the conclusion which Azu Crabbe J.A. delivering the judgment of the Court of Appeal in Inkumsah v. The State, Court of A peal, 18 December 1967, unreported; digested in (1968) C.C. 55,

[p.314] of [1971] 2 GLR 308 would seem to have arrived at after considering a number of decided authorities on the matter. Now the provision which deals with the jurisdiction of the Court of Appeal to hear appeals and the right of an appellant to appeal is article 110 of the Constitution, 1969. The relevant provisions are as follows: “110 (1) The Court of Appeal shall have jurisdiction throughout Ghana to hear and determine, subject to the provisions of this article and of this 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 this Constitution or any other law.

(2) Save as otherwise provided in this 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.”

It is quite clear from these provisions of article II that the right of appeal lies in respect of a judgment, decree or order. The decision of the court refusing to make an order for a stay of execution and payment by instalment is, as I have already pointed out in this ruling, not a judgment. It is I think obviously not a decree and the only outstanding question is whether it is an order because if it is not an order, then since it is neither a judgment nor a decree there could be no question of a right of appeal against it. I would have had no hesitation whatsoever in saying that it is not an order but for the following pronouncement of Hayfron-Benjamin J. in Vanderpuije v. Akwei [1971] 1 G.L.R. 242 at p. 247:

“The Court of Appeal (Amendment) Rules, 1969, therefore may imply that where there is no appeal against an interlocutory decision further proceedings are stayed unless the court otherwise directs. But it must be an interlocutory decision and not merely an interlocutory order. A ruling on an application for an adjournment refusing that adjournment and ordering the case to proceed is an interlocutory order and may, subject to any rules governing the same, be appealable, but it is certainly not a decision. A ruling on an application for an order of interim injunction granting such an order affects the rights of the parties pending the determination of the case. It is an interlocutory decision, and an appeal from such a ruling would operate as a stay of execution of that order. An order on an application under L.I. 618 itself for the case to continue despite an appeal would be an interlocutory order and if it is in turn appealed against would not stay the proceedings.” I have found it extremely difficult to agree in toto with these observations. In the first place it is my view that the expression “decision” is wider in its connotation and implication than an order. I am fortified in this view by a careful reading of articles 102 (6) and (8), 104 (3), 105 (1), 106 (2), 107, 108 (b), 113 (4) and 125 (2) and (3) of the Constitution, 1969, where the words “decision,” “decisions” and “order” have been used in

[p.315] of [1971] 2 GLR 308 such a way as to show plainly that by the fundamental law of the land a clear distinction is drawn between the said words, although the precise distinction was not indicated. I think an order necessarily implies a decision but a decision need not involve an order. Quite apart from the distinction reflected by considering the ordinary dictionary meanings of decision and order respectively, I am justified in drawing the distinction by a consideration of the English Court of Appeal case of In re Knight and the Tabernacle Permanent Building Society [1892] 2 Q.B. 613, C.A. In that case Lord Esher M.R. said at p. 617: “In the case of Ex parte County Council of Kent ([1891] I Q.B. 725), where a statute provided that a case might be stated for the decision of the Court, it was held that, though the language might prima facie import that there was to be the equivalent of a judgment or order, yet, when the context was looked at, it appeared that the jurisdiction was consultative, and that there was nothing which amounted to a judgment or order.” Apparently quoting this case it is stated in Stroud’s Judicial Dictionary (3rd ed.), Vol. I at p. 743 that, “Decision’ is a popular, and not a technical, word and means little more than a concluded opinion. It does not by itself amount to Judgment, or Order.” A decision as any standard dictionary will show implies the resolving of an issue, a resolution which may but need not necessarily carry with it any command but an order carries with it a mandate, a precept, a command or an injunction as appears in Jowitt, Dictionary of English Law (1959 ed.) at p. 1273. On that same page this appears: “In its simplest sense, an order is a mandate or direction…. More commonly, however, order signifies a direction or command by a court of judicature . . .”

In Stroud’s Judicial Dictionary (3rd ed.), Vol. 3 at p. 2013, Fullager J. is quoted as saying as follows in Ex parte Association of Architects [1950] A.L.R. 827; “In the absence of some special definition or some special context the word ‘order’ does not include a refusal to adjudicate.” Having regard to my view of the meaning of order I will adopt this language mutatis mutatidis and say that in the absence of some special definition or some special context the word order does not include a refusal to make an order. In my opinion there is a distinction between decision and order as I have endeavoured to show herein and for this reason I find it difficult to accept the view in the dictum of Hayfron-Benjamin J. referred to above that a ruling on an application for an adjournment refusing to grant the application is an order and not a decision. In my opinion a ruling refusing an application for an order of adjournment is a decision as it resolves an issue. It may very well not be an order because the tribunal asked to make an order has refused to make an order and to say that a refusal to make an order is tantamount to an order is an abuse of language. I am aware that this view of the law that a refusal to grant an adjournment is an order, would seem to be supported by the English case of Maxwell v. Keun [1928] 1 K.B. 645, C.A. Fortunately I am not bound by that decision and

[p.316] of [1971] 2 GLR 308 there is as far as I can gather no binding local case directly in point. In the said Maxwell v. Keun (supra) before Lord Hanworth M.R. and Atkin and Lawrence L.JJ. the first point raised by Sir Norman Birkett for the respondents in the appeal was a preliminary objection to the jurisdiction of the court to hear the appeal brought against the decision of Lord Hewart the Lord Chief Justice dismissing an application to postpone the hearing of an action in his list and ordering the applicant to pay the costs of the application. Sir Norman Birkett submitted that there could be no appeal from the decision of the Chief Justice because he did not make an order but he merely refused to alter his list. In other words he refused to make an order altering his list. In holding that the court had jurisdiction to hear the appeal it does not seem to me that the court gave any good reasons at all for its decision. Lawrence L.J. gave no reasons at all. Atkin L.J. merely said at p. 653, “I need say nothing further on the first point, except that I am quite satisfied that that is an order of the learned judge from which an appeal lies. . . .” And the Master of the Rolls who may be thought to have dealt with the point at length only said at p. 649:

“It is said that in fact the Lord Chief Justice determined to make no order and that s. 27, sub-s. I of the Judicature (Consolidation) Act, 1925, which refers to matters of appeal, deals with appeals from a judgment or order of the High Court; but the order of the Lord Chief Justice directed that costs of the application should be paid by the applicant to the respondents: and although it is not uncommon that no order should be drawn up upon that, the attachment of an order as to costs to the decision makes it, in my judgment, plain that the order in fact made was one which was of a character which is embraced within the sub-section.” I am afraid I do not agree with this reasoning. Assuming that the decision refusing the adjournment is not an order, it is difficult as a matter of logic to imagine how the decision can be transformed into an order merely because an order is engrafted on it. After all if one can appeal from an order and there are inherent in a decision one order and two or three matters which are not orders, why cannot the legislative intention be satisfied if the appeal is held to apply only to the order. The appeal in the case was clearly not in respect of the costs; it was in respect of the refusal. No doubt the urge which impels lawyers trained in the common law tradition to do substantial justice must have persuaded the English judges inadvertently to ignore clear statutory provisions. In my view a refusal to make an order is not an order and I agree with the submission of Sir Norman Birkett in that case, and consequently with the utmost respect I must say that I am not persuaded by the contrary view contained in the decision of the English Court of Appeal in the matter. If a case proceeds to a conclusion in which a court has unjustly refused an adjournment thereby occasioning a miscarriage of justice, I cannot see what prevents the aggrieved party from appealing against the decision on the ground that he has not had a fair trial. In such a case the possible fear

[p.317] of [1971] 2 GLR 308 regarding a miscarriage of justice which led the judges to concede a right of appeal where none existed would disappear. In Maxwell v. Keun (supra) it seems to me that if there had been no order as to costs, the English Court of Appeal would have had difficulty in supporting its conclusion.

Another observation in Vanderpuije v. Akwei (supra) in the passage referred to already which I am unable with the greatest respect to accept for reasons appearing hereunder is the second proposition that it must be an appeal from an interlocutory decision which has the effect of staying proceedings and not merely an appeal from an interlocutory order. I would have thought that rather having regard to article 110 (2) of the Constitution it must be an appeal from an interlocutory order and not merely an appeal from an interlocutory decision which has such effect since the right of appeal conferred by the Constitution is in respect of judgments, decrees and orders and therefore only decisions which have the attributes of judgments, decrees and orders are appealable. For this reason also I am unable to go along with the following further observation at pp. 245-246 of Vanderpuije v. Akwei (supra): “I am fortified in my view by the ruling of the Court of Appeal in Republic v. Minister of the Interior; Ex parte Lynes, Court of Appeal, 22 July 1970, unreported. In that case the Republic had brought an appeal against an interlocutory order of the High Court without obtaining special leave. Counsel for the respondent took a preliminary objection to the jurisdiction of the Court of Appeal to entertain the said appeal. The learned Director of Public Prosecutions honourably conceded the point, rightly in my view, and the appeal was dismissed. This took place after the Constitution had come into force.”

If the appeal in Republic v. Minister of the Interior; Ex parte Lynes (supra) is an appeal against an interlocutory order then having regard to article 110 (2) of the Constitution I do not see how the Court of Appeal can be said not to have jurisdiction. If however it is merely against an interlocutory decision which has not the attribute of a judgment, decree or order then the court has no jurisdiction.

This point, needless to say, was not necessary for the decision and that might be the reason why it was not dealt with in the case of Bank of Ghana v. Labone Weavers Enterprises Ltd. [1971] 1 G.L.R. 251, C.A., which declared that the Lynes case was given per incuriam. It is my view however that leaving aside the unnecessary part regarding special leave, if the appeal had been from an interlocutory decision which had not the attributes of an order, then having regard to article 110 of the Constitution, the Court of Appeal in the Lynes case would have been right in its decision that it had no jurisdiction.

I cannot help feeling though that in Vanderpuije v. Akwei (supra) the distinction which I have sought to draw between “decision” and order” was blurred and that the wording in L.I. 618 regarding “judgment or decision appealed from” must have led the court inadvertently to the conclusion that a right of appeal exists in respect of “decision” as such instead of decision having the attribute of a judgment or decree or [p.318] of [1971] 2 GLR 308 order. In this respect I think article 126 (5) of the Constitution has modified L.I. 618. The article reads: “(5) Subject to the provisions of this article, the operation of the existing law after the coming into force of this Constitution shall not be affected by such commencement; and accordingly the existing law shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring it into conformity with the provisions of this Constitution, or otherwise to give effect to or enable effect to be given to any changes effected by this Constitution.”

Now having regard to this provision of the Constitution it seems to me that rule 27 of the Supreme Court Rules as amended already referred to must now read as follows having regard to article I 10 of the Constitution:

“An appeal shall operate as a stay of execution or of proceedings under the judgment, decree or order appealed from except so far as the Court below or the Court may otherwise order.”

This since 22 August 1969 is now the proper rule!

These points are highly relevant to the case I am dealing with. The respondent in this case applied for an order to permit him to make payment of a judgment debt in a pertain manner. The court refused to make the order asked for. To say that the refusal is an order is to me obviously an abuse of language because the court did not make the order asked for nor any other order. It decided to make no order and maintained the status quo. Since there is no order of the court, the right of appeal contained in article 110

(2) of the Constitution cannot be exercised except in respect of the costs because that right arises in respect of appeals against judgments, decrees or orders.

It seems therefore that the respondent has no right of appeal from that decision and therefore his appeal is a nullity. He cannot found an appeal on the decision and expect it to have the effect of staying execution. As Lord Denning put it in MacFoy v. United Africa Co. Ltd. [1962] A.C. 152, P.C., one cannot put something on nothing and expect it to stay there. It seems to me therefore that the application is misconceived and that the registrar’s letter has no doubt misled the solicitors of the applicants to make this application asking for a futile order.

Although I am convinced my interpretation is right, nevertheless in the unlikely event that I may be wrong in the view I have taken of the legal implication of L.I. 618 and article 110 of the Constitution I propose to deal with the application on its merits and on the assumption that the appeal had indeed somehow stayed or is in some way capable of staying execution of the judgment. Excluding the order as to costs, a stay of execution of the decision does not of course make sense.

From the history of the case it seems clear to me that the respondent has been deliberately avoiding or at least delaying his creditors. It was deposed to that he is a man of substance; he did not challenge it, indeed he boasted of his means by swearing that he has a hotel worth N¢300,000.00 and he confirmed that he is in the timber business. He

[p.319] of [1971] 2 GLR 308 gave an undertaking on 17 March 1971, the date he filed his affidavit that he is prepared to make a down payment of N¢2,000. 00 and to pay the balance by monthly instalment of N¢500.00. It is now more than three months since he gave the undertaking, but he has not yet paid even one pesewa in reduction of the judgment debt, the interest or the costs. He has been asking for adjournment after adjournment during the proceedings and on occasions he absented himself from court. Indeed at the hearing of this application he was absent from court. There can be no doubt that this debtor said to be a man of means worth hundreds of thousands of new cedis is bent on using the process of the court to defeat or delay his creditors. This is amply borne out by considering even very casually the appeal filed. Clearly in the appeal lodged by the respondent the only relief be is asking the Court of Appeal is that the ruling of this court refusing a stay of execution should be set aside. He does not want any other order. He does not want an order for a down payment of part of the judgment debt and the settlement of the balance by instalment. No! The ruling should be set aside and the judgment should apparently be perpetually stayed. How an appellant can have the effrontery to ask this of a court of land is difficult to understand, but it seems to me that this vindicates the averment of the applicants in paragraph (11) of their affidavit in support of the present application, where they deposed that the respondent’s

“appeal is a conspicuous example of an abuse of the legal process and that the same is incompetent, frivolous and vexatious and a clear and flagrant ruse by the defendant judgment debtor to delay payment of the judgment debt and costs indefinitely and unreasonably.”

In the circumstance I do not see how any court bent on doing justice can exercise its discretion in his favour.

In my view considerable damage will be done to the economic and commercial interests of the country, if debtors are permitted to deal with their creditors in such an irresponsible manner and then they are to succeed as well in obtaining the assistance of the courts through the exercise of discretion in delaying and defeating their said creditors. If the matter is one of discretion, and I think it is, I certainly ought not to have any hesitation in deciding against the respondent. He will not even come to court because he no doubt has the fond convinction that by his appeal he has achieved his purpose. What he cannot get by contract and negotiation he will get through the court. Ought the discretion of this court which had inherited the equity jurisdiction of the English Court be prayed in his aid? I think not. In Joseph v. Jebeile [1963] 1 G.L.R. 387, Akufo-Addo J.S.C. delivering the judgment of the then Supreme Court endeavoured to lay down some principles admittedly not exhaustive which are to be applied by trial courts to this question of a grant or refusal that an appeal should operate as a stay of execution. He said 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 [p.320] of [1971] 2 GLR 308 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.”

It seems to me that the principle thus enunciated is directed at cushioning or preventing the hardship which must necessarily result from the likeliness of the party losing the appeal being unable to recoup the victorious party or to restore him to the status quo ante. Can it be suggested that the Standard Bank of West Africa Ltd., the applicants herein, will not be able to satisfy the respondent in the event of their losing the appeal? What possible hardship could the respondent suffer which he ought not to suffer legally if he is made to pay his just debts under a consent judgment from which he had not and would not appeal?

I do not think there is any fetter on my discretion if the matter were merely one of discretion as will disable me in the circumstance of this case from permitting the applicants to proceed with the execution in spite of the appeal. I think in exercising discretion I ought to consider, inter alia, whether the appeal was brought bona fide.

In Fofie v. Akunfo, High Court, Kumasi, 31 October 1969, unreported, Annan J. (as he then was) in considering the principles to be applied to the exercise of discretion in this type of case made the following observation with which I respectfully agree: “It is a matter for consideration whether the appeal is brought bona fide or whether it is merely intended to put off the inevitable.”

I think in this case the respondent is endeavouring to put off the inevitable evil day. I hold that the appeal in this case does not and cannot possibly operate to stay execution under the judgment of this court given on 10 November 1970. There has been no appeal from that judgment and consequently the judgment creditors, namely, the applicants herein are entitled to and can safely and legally proceed into execution. I think the court ought not to take a stand which will have the effect of depriving successful litigants of the fruits of their victory. In fact I even seriously doubt whether by our rules the court has power to make an order for payment by instalment in the circumstance of this case. I have in fact [p.321] of [1971] 2 GLR 308 dealt with this case on the basis that the court has jurisdiction to order payment by instalment. Upon that assumption I decided on the application of the respondent that he has not shown reasons why he should be permitted to pay by instalment and I accordingly refused his application. It is from this refusal that he has appealed.

Now it seems to me that the initial assumption that indeed he has a right to ask for and the courts has jurisdiction to grant instalment payment may be of doubtful validity. The power to order such payment by instalment at the High Court in England was first introduced by the Rules of Supreme Court (No. 3), 1956 as amended by the Rules of Supreme Court (Rev.), 1962. This followed the recommendation of the Evershed Report. It was Order 42, r. 19 of the former rule but now Order 47, rule 1 (1) of the Rules of Supreme Court, 1967. It provides:

“Where a judgment is given or an order made for the payment by any person of money and the Court is satisfied, on an application made at the time of the judgment or order, or at any time thereafter, by the judgment debtor or other party liable to execution—

(a) that there are special circumstances which render it inexpedient to enforce the judgment or order, or

(b) that the applicant is unable from any cause to pay the money, then, notwithstanding anything in rule 2 or 3, the Court may by order stay the execution of the judgment or order by writ of fierifacias either absolutely or for such period and subject to such conditions as the Court thinks fit.

(2) An application under this rule, if not made at the time the judgment is given or order made must be made by summons and may be so made notwithstanding that the party liable to execution did not enter an appearance in the action.

(3) An application made by summons must be supported by an affidavit made by or on behalf of the applicant stating the grounds of the application and the evidence necessary to substantiate them and, in particular, where such application is made on the grounds of the applicant’s inability to pay, disclosing his income, the nature and value of any property of his and the amount of any other liabilities of his.

(4) The summons and a copy of the supporting affidavit must, not less than 4 clear days be served on the party entitled to enforce the judgment or order.

(5) An order staying execution under this rule may be varied or revoked by a subsequent order.” It is noteworthy that there is no such provision in our rules. Before this provision the High Court in England had no power to order instalment payment. A judgment debtor upon entering judgment is entitled as of right and without the leave of the court or notice to the judgment debtor to issue a writ of fi. fa. in execution of his judgment. (See notes to Order 47, r. i of I.R.S.C., 1967). I am aware that under Order 42, r. 16 (1) (b) of our own rules the court or a judge has power to stay execution “until such [p.322] of [1971] 2 GLR 308 time as they or he shall think fit”; furthermore Order 42, r. 40 mentions 64 where a judgment orders payment of money by instalment” without any reference to stay of execution. Will the combined effect of these rules mean that the court can order payment by instalment? I am not sure. It will be noticed that under the English rule quoted already the power to stay execution has engrafted on it power to order the stay “subject to such conditions as the Court or judge thinks fit.” The absence of this additional power in our rules casts some doubt on the jurisdiction to order instalment since our rule seems concerned merely with postponing the time of payment; our Order 42, r. 16 (1) (b) is identical with, and was culled from, the English Order 42, r. 17 of the Rules of the Supreme Court, 1954, and yet under that rule it seems as the notes to Order 47, rule 1 of the Rules of the Supreme Court, 1967, show there was no jurisdiction to order payment by instalment.

Of course our courts have for many years exercised this undefined jurisdiction and so perhaps by such long exercise the jurisdiction has now become inherent. I think however that this aspect of the matter raises important issues and although I hold that there are reasons which I have shown herein already why the appeal should not operate as a stay of execution, I do not propose to rest any decision in this application on this apparent lack of jurisdiction as it seems to me to be a proper matter to be canvassed in the substantive appeal pending before the Court of Appeal and not in the present application since I am now functus officio in respect of any earlier decision refusing instalment payment. The High Court registrar by his letter dated 21 May 1971 did misconceive the legal position and therefore without proceeding to make a formal order but acting under the general inherent jurisdiction of the court exemplified by paragraph 39 of the Courts Decree, 1966 (N.L.C.D. 84), namely, that all officers of court are fully subject to the directions of the court, the senior registrar is directed to proceed with the execution in accordance with the instructions of the judgment creditors, contained in their letter to him dated 17 May 1971 already referred to. If I am wrong in the view I hold regarding the legal effect of L.I. 618 and it does indeed proprio vigore operate as a stay of execution then having regard to the circumstance to which I have already adverted I will exercise my discretion and order that the appeal should not operate as a stay of execution and consequently that the applicants are free to go into execution forthwith. The respondent did not appear but having regard to my view of the legal effect of L.I. 618 and to the fact that he did not influence the registrar to write the letter which he wrote to the applicants it would seem that it was not his fault that this application was brought and so there will be no order as to costs.

DECISION

Application granted.

Applicants to go into execution forthwith.

S. A. B.