REPUBLIC VRS. TAY AND ANOTHER , EX PARTE: MISYL ENERGY COMPANY LTD (CR/0140/2020) [2025] GHAHC 4 (20 February 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, CRIMINAL COURT 4, HELD IN ACCRA ON THURSDAY, THE 20TH DAY OF FEBRUARY, 2025, BEFORE HER LADYSHIP, COMFORT KWASIWOR TASIAME, JUSTICE OF THE HIGH COURT. CASE NO. CR/0140/2020 THE REPUBLIC VRS DAVID ASEYE TAY AND KWASI OSEI OFORI - RESPONDENT EX PARTE: MISYL ENERGY COMPANY LTD – APPLICANT ______________________________________________________________________ PARTIES: PRESENT COUNSEL: PRISCILLA AGUDEY WITH CEPHAS DOMETEY KOFIE HOLDING BRIEF FOR MARGARET AGOE OWUSU FOR THE APPLICANT/RESPONDENT- PRESENT 1 | P age OSEI OWUSU WITH PAA KWASI KUDOADZI FOR THE RESPONDENT/APPLICANT- PRESENT _____________________________________________________________ RULING The facts of this case are as follows: Misyl Energy was the complainant in a criminal case, The Republic v. David Aseye Tay. The accused was convicted, and the court, by way of restitution, granted a property to Misyl Energy. Kwasi Osei Ofori (the "Respondent/Applicant"), who was handling the property despite the Restitution Order being posted on it, was convicted for contempt of court, cautioned, and discharged. A second application for contempt was subsequently filed against the Respondent. Counsel for the Respondent raised a preliminary legal objection to the second contempt application. After considering the arguments, the court overruled the objection on 15th August, 2024. Dissatisfied with the court’s ruling, the Respondent's legal counsel filed a notice of interlocutory appeal and subsequently sought a Stay of Proceedings. The application was filed on 18th September, 2024, with a return date set for 9th October, 2024. Applicant’s Case It is the case of the Respondent/Applicant (the “Applicant”), that by a motion filed in this suit, the Applicant raised preliminary legal objection to a second application for contempt of court filed against him by the Respondent. That the court in its ruling dismissed all 5 grounds of Applicant’s preliminary legal objection. That aggrieved by the ruling, the Applicant mounted an appeal against same on 3/10/2024. That the appeal is mounted in good faith to raise substantial matters of concern both in this case and for the development of other matters of substantial interest in law … That the grounds of appeal include jurisdictional matters, determination of which must be of great interest to this 2 | P age court and the court of appeal. That even though they have invoked the jurisdiction of the Court of Appeal by a Notice of Appeal in this matter, this court reserves the right of first hearing of an interlocutory application pursuant to the provisions of Rule 27 of the Court of Appeal Rules, 1997 (C.I. 19). That in order not to dissipate time and judicial resources on the matter, it is expedient for the honourable court to respectfully stay its hands pending the decision of the Court of Appeal. Further, that the grant shall ensure that the determination of the matter by the Court of Appeal is not rendered nugatory. When this case came on for hearing on 25th October, 2024, learned counsel for the Applicant argued that Appeal per se does not constitute a stay and indeed, that is Rule 27 of the Court of Appeal Rules, CI 19. That the said rule signifies that the Jurisdiction of the Court of Appeal has been invoked. Learned Counsel further submitted that the Respondent’s affidavit in opposition indicates that the grant of this application for stay of proceedings will not prejudice the case of the Respondent at the appeal and if anything, it will augment its position should it be successful in the end. Respondent’s Case The Applicant/Respondent herein after referred to as Respondent on the other hand is opposed to the application. They filed 24 paragraphs affidavit in opposition. Permit me to quote few relevant portions of the affidavit in opposition. “15. I am advised by counsel and I verily believe same to be true that, in applications of such nature, the Applicant is to demonstrate that there are exceptional circumstances for which reason the Court must exercise its discretion in his favour. 16. … position of the law is that the court would not stay proceedings in the hope that an appeal might succeed; neither will proceedings be stayed without strong reasons where an appeal was tested on a question of law. 17. …affidavit in support that there are special circumstances to warrant a stay of proceedings, and that the appeal has a high chance of success, does not suffice. 18. … the 3 | P age Court in assessing the exceptional circumstances ought to look at the affidavit evidence, the grounds of appeal filed vis-à-vis the reasons proffered for the stay of proceedings. 19. … nothing in the affidavit in support lend credence to the fact that there exist exceptional circumstances for the grant of the instant application. Learned counsel for the Respondent submitted that while this court is clothed with jurisdiction to stay proceedings pending appeal, such jurisdiction must be exercised based on exceptional circumstances demonstrated by the Applicant. Learned Counsel for the Respondent relied on the authority in the case of Tsatsu Tsikata vs Jubilee Ghana MV21 Inc. and Another Civil Appeal No. A3/392/16 and Dram Oil and Trading Ltd vs Alfapetrol Ghana Ltd and Another Suit No. CM/RPC/0789/21 to the effect that the fact that there is likelihood of success of an appeal cannot be an exceptional circumstance for which reason a court must grant a stay of proceedings. Respondent further contended that, per paragraphs 21, 22, 23, 24, 25, 26 and 29 of the affidavit in opposition filed on 9th October, 2024 that they would rather suffer untold hardship should the court grant this application as they would be denied the right to enforce their rights accrued under the Restitution Order of this court which has neither been set aside nor varied by any court of competent jurisdiction as it would mean a reduction in the amount of time that they would be benefiting from the property subject matter of the order whose reversionary interest is held by their grantor’s landlord. Respondent submitted further that the Applicant would rather have nothing to lose as any payment from the use of the property would be paid into an interest-bearing account of court and where the appeal succeeds, the applicant could simply apply for the release of these monies. They referred the court to the case of Amidu (No 8) vs The Attorney General and 2 others [2017-2020] 2 SCGLR and submitted that it behoves on the 4 | P age applicant to show this court that there are exceptional circumstances for the grant of such an application. In the case of ALLI YUSSIF ISSA (No. 2) V. THE REPUBLIC [2003-2004] 1 SCGLR 174, AKUFFO JSC HELD “The grant or refusal of an application for an order of stay of proceedings is entirely within the discretion of the court. As with all such discretion, it must be exercised judiciously, not whimsically or capriciously. The mere fact of the pendency of an interlocutory appeal does not necessarily justify or compel the exercise of the discretion by the trial judge. The circumstances of a particular case must be taken into account and such circumstances must include special circumstances.” Learned Counsel for the Respondent submitted that stay of proceedings is always granted in exceptional circumstances and prayed the court to enquire into the exceptional circumstances which by the law, will warrant a stay of proceedings and by necessary implication, its competence and unvaried restitution order in favour of the Respondent. She supported her assertions with the case of Dram Oil and Trading Ltd vs Alfapetrol Ghana Ltd. and Another Suit No. CM/RPC/0789/21. She stated further that the position of Barbara Ackah-Yensu J.A in TSATSU TSIKATA V. JUBILEE GHANA MV21 INC & 1 ANOR CIVIL APPEAL NO. A3/392/16, is instructive that: “...it is trite that an order for stay of proceedings should be made in exceptional circumstances such as where there was a likelihood that the subject matter of the dispute might be irretrievably lost before the determination of the appeal”. In the case of Sethi Brothers Ghana Ltd. V. Regency Alliance Ltd. (J8/68/2019) [2019] Unreported SC (30 May 2019) Date-Bah JSC later in the judgement formed the view that, for this court to order suspension of the order of the Court of Appeal or stay of 5 | P age proceedings consequent on that order the applicant must demonstrate such exceptional circumstances as to justify the exercise of the extraordinary discretion to … The ruling on the preliminary legal objection to the hearing of the motion for contempt and preservation was delivered on 15/8/2024. It has been six months now. Learned counsel for the Respondent submitted that, grant of stay would mean a reduction in the amount of time that they would be benefiting from the property subject matter of the motion whose reversionary interest is held by their landlord. The Judgement in the main case, Republic v. David Aseye Tay, that granted the restitution order was delivered in May, 2023. I am of the view that, Respondents will suffer extreme hardship when this application is granted. In addition, victors in cases must be allowed to enjoy the fruits of their labour. In addition, the hearing of the motion for contempt and preservation, will not render the appeal nugatory as submitted by learned counsel for the Applicant. This is because this application for contempt and preservation may be granted or refused. Assuming it is granted, the property will not be taken from any of the parties but rather the property will be preserved till final determination of the parts of the case before the Court of Appeal and Supreme Court. The Application for stay of proceeding is hereby refused. This case is adjourned to Wednesday 26th February 2025 for a ruling on the contempt and preservation application. Cost of GH¢3,000.00 against the Applicant (Mr. Kwasi Osei Ofori). (SGD) COMFORT KWASIWOR TASIAME (JUSTICE OF THE HIGH COURT) 6 | P age