SAMADU VRS MUNGIS (A2/22/2024) [2025] GHADC 36 (12 February 2025)

IN THE DISTRICT COURT HELD AT DAMBAI ON WEDNESDAY 12TH FEBRUARY 2025 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE CASE NO: A2/22/2024 IDDRISU SAMADU PLAINTIFF OF DORMABIN VRS MUNGIS MALLAM DEFENDANT OF PAI KATANGA PLAINTIFF PRESENT DEFENDANT ABSENT REPRESENTED BY E. TEY PHILIP KWEKU ANEBO, ESQ. FOR THE PLAINTIFF/J CREDITOR/RESPONDENT PRESENT CHRISTIAN M.K KPATSI, ESQ., FOR THE DEFENDANT/J DEDBTOR/ APPLICANT PRESENT ________________________________________________________________ RULING ON MOTION ON NOTICE FOR STAY OF EXECUTION PENDING APPEAL The Plaintiff/Judgment Creditor/Respondent hereinafter called the Respondent caused a Writ of Summons to be issued against the Defendant/Judgment Debtor/Applicant hereinafter called the Applicant for the following reliefs: (i) Recovery of GH¢35,903.00. (ii) Interest on the said amount from August 2022 till date of final payment. (iii) Any order or further order the court may deem fit (iv) Costs. The Defendant denied liability of all the claims and in his Defence counterclaim as follows: i. A declaration that the Plaintiff’s negligent act in arrangement of his cement bags in Defendant’s shop led to the rain entering, the shop and causing damages to about 300 cement bags and other building materials belonging to Defendant all valued at about GH¢17,100.00 ii. Special damages of GH¢17,100 iii. General and punitive damages for the negligent act of the Plaintiff as per relief iv. Cost including legal fees. v. Any other or orders this Honourable Court may deem fit. On 12th December, 2024 this court delivered its judgment in favour of the plaintiff as follows: (i) Plaintiff is to recover the sum of GH¢35,903 from the Defendant. (ii) Defendant is to pay interest on the GH¢35,903.00 at the prevailing commercial rate from August 2022 till date of final payment. (iii) General damages of GH¢15,000.00 is awarded against Defendant in favour of Plaintiff. (iv) Cost of GH¢12,000.00 is awarded in favour of Plaintiff. On 30th December, 2024 the Applicant filed the instant application praying for an order to stay the judgment of this court. This ruling is therefore in respect of the applicant’s application for an order of stay of execution pending appeal. In the relevant portions of the 17 paragraph affidavit in support of his application, the applicant avers that he is dissatisfied with the decision of this Court and has thus filed Notice of Appeal in respect of the whole judgment. The applicant attached as Exhibit MA1 the said Notice of Appeal. The applicant said he has been advised by counsel and verily believe the same to be true that the grounds of appeal are substantial and have reasonable prospects of success on appeal and that the Appeal is not vexatious or ill intended to deny the Respondent the fruit of his judgment. According to the applicant in the event that his application succeeds it will be difficult to retrieve the amounts since the Plaintiff Judgment Creditor has no known current business or source of income. The respondent vehemently opposed the application. In his affidavit in opposition to the application the respondent argued that the present application was brought in bad faith. According to the respondent the applicant assertion that the Respondent will not be able to pay back the amount if the appeal succeeds is nothing but a bare assertion and without basis. Respondent said he is a successful businessman and was able to raise money to pay for one thousand two hundred (1,200) bags of cement and also paid for his lawyer’s services and other incidental cost. As such he is not a man of little or no means. Respondent argued that the Applicant is only trying to deny the Respondent the fruits of his judgment. He therefore prays that the application be dismissed. CONSIDERATION OF THE APPLICATION The refusal or granting of an application for stay of execution is at the discretion of the court. However, there are settled principles that guide the Court in exercising its discretion. These principles have been emphasized in plethora of authorities. It has also been the settled principle that these principles need not be followed in straight jacket manner but the circumstances of each case ought to determine how the principles are applied. In the case of Ofosu-Addo v. Graphic Communications Group Ltd. [2011] SCGLR 355 the Supreme Court per Gbadegbe JSC sums up that “although an application for stay of execution pending appeal may be granted in the discretion of a Court when the judgment on which it is based is shown by the applicant at the hearing to suffer from erroneous statement of law or that a refusal would occasion irreparable harm or inconvenience to the applicant. These are not the only reasons for which a court may make a grant. The Court in granting or refusing an application for stay of execution pending the determination of an appeal acts according to well established 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 by the making of orders such as that in respect of which the instant proceedings was launched by the plaintiff.” That the Court in such an application tries to hold even the rights of the parties in the waiting period of the appeal cast the duty on the Court to consider each case in its peculiar circumstances. In the case of Nii Tettey Opremereh II and Nii Adama Sorsey V Komexa Ltd and 4 others [2021] DLSC 9998 at page 4 Dordzie (Mrs.), JSC stated that: “This court’s decision in the case of NDK Financial Services v. Yiadom Construction & Electrical Works [2007-2008] SCGLR 93 spelt out some of the principles and held as follows: The principle 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 applicant would be if the judgment were 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.” From the affidavit evidence, the applicant has failed to demonstrate to this court that he will suffer irreparable harm or inconvenience or that he will suffer greater hardship if he pays the judgment debt. The applicant stated in his pleadings that he used to be a businessman but now unemployed because his business has collapsed. Even though he did not produce any evidence in support of this claim, I have no reasonable grounds to disbelieve him. However, the Respondent has been consistent that he is a businessman and despite the challenges he has had with the Applicant his business is still operational. Again, the Applicant’s own evidence was that he owed the Respondent three hundred and eighty eight (388) bags of cement and the Applicant has held on to this debt since the year 2022 that is about three years now. In my respectful view it will be unconscionable for the Applicant to hold on to his just debt whilst pursuing his appeal. The prudent thing therefore is for him to pay at least part of the judgment debt for the mean time. There is no doubt in my mind that if the Applicant’s Appeal is successful, he can easily recover the money under same order of the court. In the contrary I am of the considered view that the Respondent will suffer greater hardship if execution of the judgment is wholly stayed and the Applicant is made to keep the money whilst fighting the appeal. From the foregoing and in the interest of fairness, the Applicant/Judgment Debtor is ordered to pay GH¢40,000.00 to the Respondent/Judgment Creditor within two weeks from today failure which the Respondent is to go into execution to recover the amount. There will be no order as to costs. SGD H/W ALHASSAN DRAMANI. DISTRICT MAGISTRATE 12TH FEBRUARY, 2025.