BOSOMPEM V BOATENG (AR/JB/05/2011) [2024] GHACC 393 (20 November 2024)

INTHECIRCUIT COURT–ASHANTI REGION BEFOREHH ROSEMARIEAFUA ASANTE (MRS)HELD ONWEDNESDAY20THNOVEMBER2024 KwadwoBosompem Plainitiff/judgment/Applicant/Creditor vrs SerebourBoateng Defendant/judgment/Respondent/Debtor SubstitutedbyBoatengSiriboe KwasiManu SuitNo.AR/JB/05/2011 RULING The Applicantfiledamotionforstayofexecution on3rdJuly2024againsttherespondentwho is the judgment creditor. According to the applicant judgment was entered in favour of the defendant on27thJuly 2021.Thattheapplicanthasfiledanappealhoweverhehasnotreceived the proceedings, but have received an entry of judgment. which suggest that the respondent wasgoingintoexecution. The defendant is opposed to the motion to stay execution and deposes to the fact that per exhibit KB4 a search conducted at the registry of the court shows that the plaintiff has not compliedwiththeconditionsof appealandhaveforthepast20yearsdeniedthemofthefruitsoftheirvictorysincethedecision of the court of Appeal in 2010. According to them the applicant has not disclosed any exceptional circumstances for the grant of the application and prays that the application be dismissed. In their supplementary affidavit the applicant makes reference to judgment by the court of appeal titled KOFI BOATENG SIRIBOE VRS KWADWO FORDJOUR Civil Appeal No Ha1/5/2023dated29thSeptember2010. I proceed to look at Exhibit KB4 which shows that the entry of judgment was served on the plaintiffjudgmentdebtorwholodgedanappealon27thSeptember2021andnorecordofappeal settled. the respondent states that they have tried to settle the record of appeal, however I find this assertion problematic as judgment was given as far back as July 2021, which is 3 years ago. In the case of SEATECV PENTON HOOK FARMS 1987/19881 GLR 51, Itwas held as follows: “A successful party could not be deprived of the fruits of his judgment unless it could be satisfactorily shown that if a stay was not granted, it would create an irreparable injury. The court in the exercise of absolute and unfettered discretion to grant or refuse an application for stay would therefore only grant a stay if there were special circumstances which had been deposed to in an affidavit unless the application was made at the hearing. EXCEPTIONAL CIRCUMSTANCES WHERE A STAY OF EXECUTION COULD BE GRANTED WERE SUCH AS EXAMPLE WHERE EXECUTION WOULD DESTORY THE SUBJECT MATTER Or ACTION OR DEPRIVE THE APPLELLAM MEANS OF PROSECUTING THE APPEAL OR WHERE THE RESULTS OF THE APPEAL WOULD BE RENDERtheappealNURGATORYIFSTAYOFEXECUTIONWASNOTGRANTED….BESIDES THE MERE FACT THAT THE APPELLANT WOULD BE FINANCIALLY embarrassed WAS NO REaSONWHYSTAY OFEXECUTIONWOULDBEGRANTED.”Is theapplicanttryingtomake the court believe that for three years now they still have not procured the proceedings? I am tempted to agree with the respondents that they went to sleep after 3 years and have now woken up to stop the respondent s from going into execution. From the affidavit in opposition, the applicant’s reason is that failure to grant the application will render the appeal nugatroy in case it succeeds. However it is surprising that an appeal which has a life span of 3 months limitation period has not been filed on grounds that they have not procured the proceedings in 3 good years, although the law makes room for extension of time to appeal. I will refuse the application on grounds that the applicants have not shown any exceptional circumstance to warrantastay. Costof8,000.00infavouroftherespondent ……………SGD……………………….. HHRosemarieAfuaAsante(Mrs) CircuitCourt Juaben-Ashanti