LARYEA VRS. FINALI VENTURES LIMITED (LD/0009/2015) [2024] GHAHC 124 (6 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAND COURT DIVISION, HELD IN ACCRA ON MONDAY THE 6TH DAY OF MAY 2024, BEFORE HER LADYSHIP JUSTICE NABEELA NAEEMA WAHAB MS. FRANCIS VIDAL LARYEA - PLAINTIFF/RESPONDENT SUIT NO. LD/0009/2015 VRS FINALI VENTURES LIMITED - DEFENDANT/APPLICANT RULING I. BACKGROUND 1. The Plaintiff an accountant resident in the United Kingdom instituted an action against the Defendant Limited Liability Company by a Writ and Statement of Claim filed on 27th October 2015. 2. It was essentially the case of the Plaintiff that he acquired the subject land measuring 0.46 acres and situate at Airport Hills Residential Area in Accra from the Defendant Company and the transaction is evidenced by a sublease dated 2nd July 1998. 3. The Plaintiff admitted in his Statement of Claim that he is in breach of covenants of the sublease to pay monies/outgoings. He however added that he is willing and able to perform his obligation to pay the monies he covenanted to pay but he has been unable to do so because the Defendant has refused to inform him of his total indebtedness under the sublease, despite his requests to the Defendant to inform him of his total indebtedness. The Plaintiff therefore stated that in order to finally and fully discharge his obligations under the sublease, he requires the Defendant to provide SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 1 of 24 him with an updated and exhaustive list of all his outstanding obligations under the sublease. 4. The Plaintiff also stated in his Statement of Claim that he had not been able to complete a three-bedroom structure he had started constructing on the subject land within the two-year period he covenanted he would. He however added in his Statement of Claim that this was because the Defendant had denied him access to the subject land. 5. By his action, the Plaintiff sought the following reliefs: a) A declaration that under the terms of the sublease dated 2nd July 1998 and entered between the Plaintiff and the Defendant and in all the circumstances set out in the statement of claim the Plaintiff has a right to access his property to complete his three-bedroom building. b) An order of a mandatory injunction compelling the Defendant to allow the Plaintiff access to his site to enable him complete his three-bedroom building. c) Costs and such orders as the Honourable Court may deem fit. 6. In a Statement of Defence filed on 11th May 2016, the Defendant stated that the Plaintiff had failed to remedy breaches under the sublease communicated to him and that it had duly determined the sublease. The Defendant therefore counterclaimed for a declaration that it is entitled to recover possession as the sublease had been duly determined. 7. The issues set down for determination by the Court differently constituted are stated in pages 4 to 5 of the Judgment delivered by the Court after the trial and dated 18th December 2023, a copy of which is attached by the Defendant/Applicant to the present application and marked as Exhibit A. SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 2 of 24 8. The issues set down for determination included whether or not the Plaintiff was in breach of covenants of the sublease. In addressing this issue, the Court found and stated at page 14 of the Judgment that the agreement between the Parties is a indeed a sublease and not a lease although the parties to the agreement are referred to as Lessee and Lessor. The Court also noted and stated that the Plaintiff admitted in his Statement of Claim that he is in breach of covenants of the sublease. The Court therefore found and stated at page 17 of the Judgment that the real issue that arises for determination from the pleadings is whether or not the Plaintiff was aware of the total outgoings/his total indebtedness under the sublease, for it is his case that he was unable to honour his obligations because he did not know his full indebtedness and it is the case of the Defendant that the Plaintiff’s full indebtedness had been communicated to him, but he had refused to pay same. 9. The Court found sufficient evidence that the Plaintiff had requested the Defendant to provide him with his full indebtedness under the sublease. The Court however found and stated at page 23 of the Judgment that the real reason for the continuing breach to pay all outgoings was a disagreement between the Parties as to what amount may be regarded as legitimately required under the sublease. 10. From pages 23-29 of the Judgment, the Court considered what the Defendant may legitimately demand from the Plaintiff as total outgoings per the sublease between the Parties and held that it was indeed the case as claimed by the Plaintiff that he was in breach of the covenant to pay outgoings because his total indebtedness had not been properly assessed by the Defendant and/ communicated to him. 11. In the concluding paragraphs of the Judgment, at page 55, the Court thus made a conditional mandatory order directed at the Defendant to provide information of the total indebtedness of the Plaintiff within three months of the Judgment and an order for the Defendant to pay same within six months after service of his total indebtedness on him. SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 3 of 24 12. In determining whether or not the Plaintiff is entitled to access to the subject land, the Court found and stated in pages 32 to 35 of the Judgment that whilst the Plaintiff did not provide evidence in support of his claim that the Defendant had denied him access to the subject land, the Defendant admitted during cross-examination that it had denied the Plaintiff access to the subject land. The Court found and held that the Defendant was not entitled to deny the Plaintiff access to the subject land for breach of covenant as same was not justified by the sublease. 13. In view of the finding that denial of access was not justifiable under the sublease for breach of covenant, the order of mandatory injunction made by the Court therefore included an order directed at the Defendant to grant the Plaintiff access to the subject land two weeks after the Plaintiff had complied with the conditional mandatory order and paid his full indebtedness under the sublease. 14. The Court however found and stated at page 35 of the Judgment that from the Defendant’s testimony, the Plaintiff had been denied access to the subject land after the time provided in the sublease for the Plaintiff to complete his structure on the subject land had already lapsed. The Court therefore found and held that denial of access was not the reason why the Plaintiff had not been able to complete his structure as he claimed. 15. Although the Plaintiff had not been able to complete his building on the subject land within the two years that he had covenanted that he would, and the reason for this breach was not because the Defendant had denied the Plaintiff access to the subject land, the Court found that the sublease had not been duly terminated by the Defendant. 16. In pages 36 to 45 of the Judgment, the Court addressed the issue of whether or not the Defendant is entitled to its counterclaim for possession of the subject property. SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 4 of 24 17. In pages 40 to 42 of the Judgment in particular, the Court analyzed clause 4b of the sublease on termination relied on by the Defendant in support of its claim that the sublease had been duly terminated which provides that: “If at the end of five (5) years the demised premises remains undeveloped then the demised premises shall revert to the Lessor” (Emphasis added) and held that clause 4b of the sublease was unconscionable and/ or contrary law and same could not be enforced. The Court relied especially on the decision of the Court of Appeal in the case of Nana Kwadwo Poku vrs Michael Adusei [Unreported, Suit No. H1/02/2017, dated 24th July 2018] and section 29(3) of the Conveyancing Act, 1973 (NRCD 323) which was the law in force at the time the sublease was executed as well as section 57(3) of the Land Act 2020 (Act 1036) currently in force, which repealed the Conveyancing Act. 18. The Court also found and stated at pages 43 to 45 of the Judgment that the Defendant had not been able to establish that it had duly notified the Plaintiff of its intention to determine the sublease in accordance with the terms of the sublease and in accordance with law and thus held at page 45 of the Judgment that the Defendant was not entitled to its counterclaim or to possession of the subject land. 19. The Court noted and stated in the concluding paragraphs of the Judgment at pages 52 to 53 that as the sublease had not been determined, in the event that the Plaintiff fulfilled the conditions of the mandatory injunction and was granted access to the subject land, the Plaintiff will be bound by the terms of the sublease. 20. The Court also noted and stated that by the sublease, the Plaintiff did not have an automatic right to an extension of time to complete his building after the time agreed on by the parties. The Court found and stated that an extension of time is a discretion of the Defendant under the sublease. SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 5 of 24 21. The Court therefore stated that as there was no evidence that the Plaintiff’s failure to complete his building within the time he had covenanted to do so was as a result of denial of access by the Defendant, the grant of access to the subject land will not automatically entitle the Plaintiff to extension of time to complete his building. 22. The Court added that the Defendant may exercise its discretion/right to grant the Plaintiff an extension of time to complete his three-bedroom structure or may determine the sublease as it has a right to do under the valid provisions of the sublease and in accordance with law. 23. The implications of the conditional mandatory order and the summary of the findings and holdings of the Court were summarized at pages 53 to 55 of the Judgment. 24. Aggrieved by this Judgment of the Court delivered on 18th December 2023, the Defendant filed a Notice of Appeal on 19th December 2023. 25. On 12th January 2024, the Plaintiff filed an Entry of Judgment and caused same to be served on the Defendant. 26. The Defendant thereafter filed Additional Grounds of Appeal on 31st January 2024. II. APPLICATION FOR STAY OF EXECUTION PENDING APPEAL 27. The Defendant as Applicant filed the instant application on 13th February 2024, seeking an order for a stay of execution of the Judgment of the Court dated 18th December 2023 pending the determination of its appeal. III. SUMMARY OF THE CASE OF THE PARTIES SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 6 of 24 28. Relying on the Notice of Appeal and Additional Grounds of Appeal, copies of which are exhibited as Exhibits B and C respectively, it is essentially the case of the Defendant/Applicant as stated in paragraphs 8 and 9 of the affidavit in support of the application that the instant application should be granted for the reason that: i. There are substantial issues of law and facts in the Notice of Appeal that would merit serious consideration by the Court of Appeal; and also ii. Exceptional circumstances exist in the present case to warrant a stay of execution. 29. In an affidavit in opposition filed by the Plaintiff/Respondent on 27th February 2024, it is the case of the Plaintiff/Respondent as stated in paragraphs 8 -12 of the affidavit in opposition that: i. The application for stay of execution is premature as the Defendant/Applicant has not yet complied with the mandatory injunction and the Plaintiff/Respondent can therefore not go into execution. ii. The appeal has no real chance of success. iii. Greater hardship will be caused to the Plaintiff/Respondent if the application is granted. iv. No exceptional circumstances have been demonstrated by the Defendant/Applicant. v. The application for stay of execution has been filed “only to frustrate the Respondent” and deny him the “fruits of his labour”. SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 7 of 24 IV. SUMMARY OF WRITTEN SUBMISSIONS FILED BY COUNSEL FOR BOTH PARTIES 30. In written submissions filed by Counsel for the Defendant/Applicant on 3rd April, 2024 and pursuant to the Order of this Court dated 22nd March 2024, Counsel for Defendant/Applicant relied on cases including Republic v Court of Appeal; ex parte Ghana Commercial Bank Pensioners Association [2001/02] SCGLR 883 at 890 and submitted that the filing of an Entry of Judgment by the Plaintiff/Respondent signifies an earnest intent to execute the Court’s decision and for this reason the application for stay of execution is not premature. 31. Counsel for Defendant/Applicant also relied on the case of Dzokoto & Amissah v BBC Industrials Co (Ghana) Ltd and City Express Bus Services Ltd [2011] 2 SCGLR 825 and stated that the appeal filed will be rendered nugatory if the instant application is not granted. 32. In written submissions filed by Counsel for the Plaintiff/Respondent on 17th April 2024, Counsel for the Plaintiff/Respondent relied on a decision of the Supreme Court and submitted that the Judgment of the Court challenged on appeal by the Defendant/Applicant is final because the orders of the Court by nature, disposed of the disputed issues between the parties. 33. Relying on the case of Republic v Court of Appeal, Ex Parte Sidi (1987-1988) 2 GLR 170, Counsel for Plaintiff/Respondent further submitted that a party who applies for a stay of execution pending the hearing and determination of its appeal is in effect asking that all processes that can be taken after judgment for the purpose of satisfying the judgment should be stayed until the appeal is heard and a decision on it is given. 34. Counsel for the Plaintiff/Respondent submitted relying on the case of Nana Akwasi Agyeman VIII v Nana Hima Dekyi XIII (1982-83) GLR 453 that in considering SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 8 of 24 whether or not to grant an application for stay of execution pending appeal, the Court should amongst others consider whether or not the Appeal is filed in good faith and whether exceptional circumstances to warrant the grant of the order has been established. Counsel submitted that the conduct of the Defendant/Applicant that led to the action being instituted suggests that the present appeal has not been filed in good faith. 35. Counsel for the Plaintiff/Respondent also submitted that in the affidavit in support of its application, the Defendant/Applicant did not state or show any exceptional circumstance to warrant the grant of the present application and prayed that for the above-stated reasons, the present application should be refused. V. ISSUES RAISED FOR DETERMINATION BY THE PRESENT APPLICATION 36. The issues raised for determination by the present application are: i. Whether or not the present application is premature and for that matter whether or not the Court has jurisdiction to consider same. ii. Whether or not the judgment of this Court should be stayed pending the determination of the appeal filed by the Defendant/Applicant. VI. APPLICABLE LAW, ANALYSIS AND OPINION 39. Order 43 Rule 11 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47) is one of the provisions which regulates the practice for making Applications for stay of execution in the High Court. It provides thus: Without prejudice to Order 45 rule 15, a party against whom a judgment or order has been given or made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 9 of 24 judgment or order, and the Court may by order grant the relief, on such terms as it thinks just. (Emphasis added) 41. From Order 43 Rule 11 of C.I 47, a Court has jurisdiction to consider an application for stay of execution grounded on matters which have occurred since the judgment. ISSUE 1: WHETHER OR NOT THE COURT HAS JURISDICTION TO CONSIDER THE PRESENT APPLICATION 42. In explaining the application of Order 43 Rule 11 of C. I. 47, the learned author, S. Kwami Tetteh at page 1051 of his book “CIVIL PROCEDURE, A PRACTICAL APPROACH” referred to the case of London Permanent Benefit Society v. De Buer [1968] 1 ALL ER 372 and stated that the power to grant relief under Order 43 Rule 11 of C.I. 47 is to be exercised on the basis of matters that have occurred since the date of the judgment or order. 43. In the Ruling of the Supreme Court dated 28th April, 2020 in Ogyeadom Obranu Kwesi Atta VI v. Ghana Telecommunications Co. Ltd & Anor [Civil Motion No. J8/131/2019] reported as Ghana Telecommunications Co. Ltd & Another v Atta VI [2017-2020] 1 SCGLR 1090 at page 1109, the Supreme Court speaking through Pwamang JSC also cited the case of London Permanent Benefit Society v. De Buer (supra) with approval and stated that as Plowman J. observed of Order 45 rule 11 of the English Rules on which Order 43 rule 11 of C.I. 47 is based: “The power conferred by that rule to grant relief is a power to do so, and I quote “on the ground of matters which have occurred since the date of the judgment”. (Emphasis added) 44. In respect of the specific matters which must have occurred since the date of the judgment and which may be a ground for an application for stay of execution, in the SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 10 of 24 case of The Republic v. High Court (Commercial Division 9), Accra, Ex Parte Ecobank [Unreported; Civil Motion No. J5/10/2022; 18th January 2022], the Supreme Court speaking through Pwamang JSC explained that “the filing of an appeal is certainly one matter that may occur after a judgment and can ground an Application for stay of execution or of proceedings under Order 43 Rule 11”. (Emphasis added) 45. This Court therefore finds relying on the Notice of Appeal filed by the Defendant/Applicant, exhibited as Exhibit B, that a matter has occurred after the judgment of this Court dated 18th December 2023 which can ground the present application for stay of execution and the Court has jurisdiction to consider the present application. 46. The Plaintiff/Respondent however maintains that the present application is premature for the reason that the order of conditional mandatory injunction made by the Court has not been complied with and the judgment cannot be executed. The Court finds that the challenge of the Plaintiff/Respondent in this regard is essentially that the Judgment appealed against is not executable. 47. In the case of Ghana Airport Company Ltd v. Osei Ansong [Unreported; Civil Appeal No. H1/23/2014; 30th April 2014; CA] an appeal was filed by a plaintiff against the grant of an application for stay of execution by the trial judge. The Court of Appeal stated inter alia that: “A condition precedent to the consideration of an application for stay of execution pending an appeal is that there must be a valid appeal pending and the judgment appealed against must be executable.” (Emphasis added) 48. In Mensah v Ghana Football Association and others [1989-90] 1 GLR, page 1 the Supreme Court stated at page 12 thus: SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 11 of 24 “The concept of stay of execution in our law…is founded on the idea that where the person against whom the order is directed is in no position to execute the judgment by the various execution processes, then a stay of execution is meaningless and logically pointless. As a hypothetical illustration, I think it is meaningless and pointless to stop a man from shooting his neighbour when he has neither a gun or a bullet.” (Emphasis added) 49. In a Ruling of the Supreme Court in the case of Tony Adams v. Anang Sowah [Unreported; Civil Motion No J8/2/2009; 14 January 2009; SC] Atuguba JSC (as he then was) stated that if the judgment appealed is not executable then the question of stay of execution does not simply arise. 50. In the unanimous decision of the Supreme Court in the case of Ghana Telecommunications Co Ltd & Another v Atta VI (supra), however, the Supreme Court stated at page 1094 of the report that: “True, it is to say that there has been a collection of cases of this court which preclude the court from exercising its jurisdiction to grant stay of execution in cases which come before it in the exercise of its appellate jurisdiction where the decision of the Court of Appeal made no executable orders as in the matter before us. However, in the case of NDK Financial Services Ltd v Yiadom Construction and Electrical Works [2007-2008] 1 SCGLR 93, the court granted an order of stay of execution of a non-executable order…The words of Brobbey JSC (as he then was)…at page 98 of the Report [is] as follows: In considering an application for stay, the court should endeavour to do substantial justice…” 51. The Supreme Court added at page 1098 of the report that “The time has come for us to embrace a new approach …the view is reached that in appropriate cases, the ends of justice is better served even in cases where the judgment …is said to be merely executable.” SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 12 of 24 52. It is thus reported in holding 1 at page 1090 of the report that in the case of Ghana Telecommunications Co Ltd & Another v Atta VI (supra) the Supreme Court departed from its previous decisions that refused stay of execution of judgments of the Court of Appeal that were not executable. The understanding of this Court of the decision in Ghana Telecommunications Co Ltd & Another v Atta VI (supra) is therefore that it may have jurisdiction to consider an application for stay of execution even if the decision appealed against is merely executable or non-executable if the ends of justice will be better served in considering the application. 53. This Court however finds that the time within which the Defendant/Applicant is to comply with the order of conditional mandatory injunction made by the Court and contained in its Judgment of 18th December 2023 has lapsed. An application for contempt of Court may thus be filed against the officers of the Defendant Company if the assessment to be made per the Order of conditional mandatory injunction has not been made. 54. The Judgment of the Court dated 18th December 2023 which contains an order of conditional mandatory injunction directed at the Defendant/Applicant and against which an appeal has been filed is therefore executable. See the concurring opinion delivered by Pwamang JSC in the case of Ghana Telecommunications Co. Ltd & Another v Atta VI (supra), at page 1119 of the report, where His Lordship Pwamang JSC referred to the case of Mensah v Ghana Football Association (supra) and explained that: “…execution is putting in motion the machinery of the law to enforce a judgment of a court and that since the applicant could be proceeded against for contempt of court, that would amount to execution.” 55. This Court is of the considered opinion that the present application is not premature and it has jurisdiction to consider the instant application. SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 13 of 24 ISSUE 2: WHETHER OR NOT THE INSTANT APPLICATION SHOULD BE GRANTED. SETTLED PRINCIPLES TO BE CONSIDERED 56. Per Order 43 Rule 11 of C.I. 47, the decision of the Court to grant an application for stay of execution is discretionary and “the Court may by order grant the relief, on such terms as it thinks just.” (Emphasis added) 57. The Supreme Court has however held that in the exercise of a Court’s discretion on whether or not to grant an application for stay of execution, the principles to be considered are well-settled. In NDK Financial Services Ltd. v. Yiadom Construction and Electrical Works Ltd (supra) the Supreme Court held as reported in head note 1 of the report that: “The principles for considering an application for stay of execution pending an appeal were well-settled” (Emphasis added) 58. Similarly, in the case of Charles Osei Bonsu v. Dorothy Aboagye & Anor (2015) 81 GMJ 25, the Supreme Court in its judgment delivered on 30th July 2014 also stated that the principle for considering an application for a stay of execution is well-settled. The Court referred to the cases of Livingstone Djokoto v. BBC Industrials [2012] 36 MLRG 107, NDK Financial Services Ltd. v. Yiadom Construction & Electrical Works & others [2007-2008] 1 SCGLR 93), Mensah v. Ghana Football Association and Others (supra) Joseph v. Jebeile and Another (1963) 1 GLR 387-392 SC; and held that it must be shown that without the order of stay of execution, the applicant’s appeal, if successful would be rendered nugatory. SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 14 of 24 59. In Dzokoto & Amissah v BBC Industrials Co (Ghana) Ltd and City Express Bus Services Ltd [2011] 2 SCGLR 825 at 830, the Supreme Court held per Anin Yeboah JSC (as he then was) that: “In deciding applications for stay of execution, both trial court and an appellate court must carefully examine the judgment appealed against and the order or decree sought to be executed to consider whether the appeal would not be rendered nugatory should the court refuse it and the appellant win on appeal… Secondly, the court must also consider the exceptional circumstances, which depend on the nature of the case… This court may in appropriate cases grant stay where balance of hardship will fall on the appellant.” (Emphasis added) 60. In the case of Ghana Telecommunications Co Ltd & Another v Atta VI (supra) the Supreme Court stated that the decision in Linotype-Hell Finance Ltd v. Baker [1992] 4 ALL ER 887 is of persuasive authority and at page 1129 of the report the Supreme Court quoted the dictum of Stoughton LJ in Linotype-Hell Finance Ltd v. Baker as follows: “Where an unsuccessful defendant seeks a stay of execution pending an appeal to the Court of Appeal, it is a legitimate ground for granting the Application that the defendant is able to satisfy the court that without a stay of execution he will be ruined and that he has an appeal which has some prospect of success.” (Emphasis added) 61. From the authorities referred in paragraphs 58-60 above, this Court finds that it is not enough as stated by the Defendant/Applicant and submitted by its Counsel that the appeal as filed raises substantial issues of law for determination by the Court of Appeal, but the Defendant/Applicant must also “satisfy the Court that without a stay of execution it will be ruined”. SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 15 of 24 62. The Defendant/Applicant also states that exceptional circumstances exist to warrant the grant of the present application. Whilst the Plaintiff/Respondent disagrees and states that the Defendant/Applicant has not stated or demonstrated any exceptional circumstance to warrant the grant of the present application, in the recent decision of the Supreme Court in the case of Micaiah Addai (Masquerading as the president of the Association of Seventh Day Pentecostal Assemblies) vrs Elder Enoch Ofori Jnr and 3 others [Unreported, Civil Motion No. J8/29/2023, Ruling of 16th May 2023], the Supreme Court speaking through His Lordship Kulendi JSC referred to the case of Linotype-Hell Finance Ltd v Baker (supra) its previous decisions in Joseph v Jebeile & Another (supra) NDK Financial Services v Yiadom Construction & Electrical Works Ltd (supra), Djokoto & Amissah v BBC Industrials Co (Ghana) Ltd & City Express Bus Services (supra) amongst others and held that: “From the authorities above, in considering whether or not to grant an application for stay of execution pending appeal, the Court is minded to consider whether or not exceptional circumstances exist to warrant a grant of the order.” 63. The Supreme Court further held in Micaiah Addai (Masquerading as the president of the Association of Seventh Day Pentecostal Assemblies) vrs Elder Enoch Ofori Jnr and 3 others (supra) that: Although the list of what constitutes exceptional circumstances is inexhaustive, the following may serve as pointers: a. Has the Applicant mounted a valid appeal? b. Is the judgment sought to be stayed executable or does it have executable consequences? c. What is the likelihood of success of the Applicant’s appeal? In other words, whether the appeal is not frivolous; SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 16 of 24 d. Will the subject matter of the appeal be irretrievably lost should the appeal (which on the face of it is not frivolous) succeed? In other words, will the pending appeal or judgment be rendered nugatory if execution is not stayed? e. Has the Applicant demonstrated sufficient good faith and does the application for stay appear to be intended to enable the Applicant contest the appeal or is it for collateral reason such as undue advantage, overreaching or even to frustrate and/ or deny the victorious party of the fruits of the judgment; f. Will the Applicant suffer irreparable loss, hardship, damage or injury if the execution of the judgment is not stayed? g. On the balance of hardship, will the Applicant suffer greater hardship than the Respondent is the execution of the judgment is not stayed? 64. To determine whether or not exceptional circumstances exist to warrant the grant of the present application, this Court will rely on the above-stated principles provided by the Supreme Court on the matter. HAS THE APPLICANT MOUNTED A VALID APPEAL? 65. In the instant case, the Court finds from the Notice of Appeal relied on by the Defendant/Applicant and marked as Exhibit B that an appeal has been filed. Whether or not the appeal as filed is valid is not within the jurisdiction of this Court to determine. IS THE JUDGMENT SOUGHT TO BE STAYED EXECUTABLE OR DOES IT HAVE EXECUTABLE CONSEQUENCES? 66. The understanding of this Court of the decision of the Supreme Court in Ghana Telecommunications Co. Ltd & Another v Atta VI (supra) as stated in paragraph 52 above is that the matter of whether or not a judgment appealed against is executable or not should not be the main focus in determining whether or not a Court has SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 17 of 24 jurisdiction to consider an application for stay of execution. From Micaiah Addai (Masquerading as the president of the Association of Seventh Day Pentecostal Assemblies) vrs Elder Enoch Ofori Jnr and 3 others (supra), however, this Court finds that the matter of whether or not a judgment is executable or has executable consequences is one of the pointers/ matters that may be considered in determining whether or not exceptional circumstances exist to warrant the grant of an application for stay of execution. 67. As already stated in paragraphs 53 and 54 above, the Judgment sought to be stayed has executable consequences. The Court however notes that as held in Micaiah Addai (Masquerading as the president of the Association of Seventh Day Pentecostal Assemblies) vrs Elder Enoch Ofori Jnr and 3 others (supra), whether or not a judgment has executable consequences is not the sole determining factor in determining whether or not exceptional circumstances exist to warrant the grant of an application for stay of execution, rather, it is only one of the factors to be considered. ARGUABLE POINTS OF LAW RAISED FOR DETERMINATION ON APPEAL/ WHAT IS THE LIKELIHOOD OF SUCCESS OF THE APPLICANT’S APPEAL? IN OTHER WORDS WHETHER THE APPEAL IS NOT FRIVOLOUS. 68. It is the case of the Plaintiff/Respondent that the appeal filed has no real chance of success. The Court has considered the Notice of Appeal – Exhibit B and the additional grounds of appeal – Exhibit C repeated by Counsel for the Defendant/Applicant in his written submissions. The Court is of the considered opinion that the Defendant/Applicant has misconstrued the decision of the Court appealed against. 69. The Court however notes that the duty of the Court in the instant application is not to defend the correctness of its own judgment. Indeed, in Djokoto & Amissah v. BBC Industrials Co. (Ghana) Ltd & City Express Bus Services Ltd (supra) the Supreme Court cautioned at page 829 of the report that in determining an application for stay SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 18 of 24 of execution, care must be taken not to determine any issue that might prejudice the substantive appeal. 70. This Court will therefore refrain from further comments on whether or not there is a likelihood of success of the Defendant/ Applicant on appeal. HAS THE APPLICANT DEMONSTRATED SUFFICIENT GOOD FAITH AND DOES THE APPLICATION FOR STAY APPEAR TO BE INTENDED TO ENABLE THE APPLICANT CONTEST THE APPEAL OR IS IT FOR COLLATERAL REASON SUCH AS UNDUE ADVANTAGE, OVERREACHING OR EVEN TO FRUSTRATE AND/ OR DENY THE VICTORIOUS PARTY OF THE FRUITS OF THE JUDGMENT 71. From the peculiar circumstances of this case and after considering the present application, this Court is of the considered opinion that instant application by the Defendant/Applicant appears to be for a collateral reason. The Court however considers that consideration of this factor is related to the whether or not there is a likelihood of success of the appeal. The Court therefore refers to paragraphs 69 and 70 above and will refrain from further comments on this matter especially as it is only one of the factors to be considered and not the determining factor. BALANCE OF HARDSHIP 72. In the case of Djokoto & Amissah v. BBC Industrials Co. (Ghana) Ltd & City Express Bus Services Ltd(supra), it was held that the balance of hardship “may be considered in appropriate cases to grant stay where balance of hardship will fall on the appellant.” (Emphasis added) SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 19 of 24 73. The test of hardship is thus whether or not the balance of hardship will fall on the appellant, in this case the Defendant/Applicant herein. It is not whether or not the Plaintiff/Respondent will be prejudiced should the application be granted. 74. The Court finds that the Defendant/Applicant misunderstood the test of hardship and stated in paragraph 14 of the affidavit in support of the application that the Plaintiff/Respondent will not be prejudiced should the present application be granted pending the Appeal. The Defendant/Applicant did not also make any case as to any hardship that will fall on Defendant/Applicant if the instant application is not granted. Counsel for Defendant/Applicant also repeated the same statements in his written submissions. The Court therefore finds that the Defendant/Applicant did not provide a basis for its consideration of the balance of hardship. WHETHER OR NOT THE APPEAL WOULD BE RENDERED NUGATORY SHOULD THE COURT REFUSE THE APPLICATION AND THE APPLICANT WIN ON APPEAL 75. The authorities on the matter establish that the primary consideration in determining whether or not to grant the present application is whether or not the appeal will be rendered nugatory if the application is refused and the appeal is successful. In Joseph v. Jebeile and Another (supra), the Supreme Court held that: “[I]t is the paramount duty of a court to which an application for stay of execution pending appeal is made to see that the appeal, if successful, is not rendered nugatory”. (Emphasis added) 76. Similarly, in Mensah v. Ghana Football Association and Others (supra), the Supreme Court held that: SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 20 of 24 “If the enforcement would make the appeal, if successful, nugatory then the proper order to make was one staying execution.” 77. In Micaiah Addai (Masquerading as the president of the Association of Seventh Day Pentecostal Assemblies) vrs Elder Enoch Ofori Jnr and 3 others (supra), the Supreme Court referred to the case of NDK Financial Services v Yiadom Construction & Electrical Works Ltd (supra) and held that: “…the main principle adopted by the courts was what the position of the appellant would be if the judgment was 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.” (Emphasis added) 78. As noted by the Plaintiff/Respondent, the Court finds that the Defendant/Applicant did not state anywhere in the affidavit in support of the application that the appeal will be rendered nugatory if the present application is refused, as a result no facts in respect of this matter were provided. 79. In his written submissions, Counsel for Defendant/Applicant merely stated in paragraph 14 that the appeal will be rendered nugatory if the present application is not granted and relied on the case of Dzokoto v BBC Industrial Co (Ghana) Ltd and City Express Bus Services Ltd (supra). 80. The Court repeats paragraph 61 above and states that from the authorities on the matter, it is not enough for an Applicant and its Counsel to repeat that there are arguable points of law raised for consideration of the Appellate Court and merely state that the appeal filed will be rendered nugatory if the application for stay is refused. An Applicant must satisfy the Court that it cannot be returned to the status quo ante or the subject matter will be lost if the application for stay of execution is refused and the appeal is successful. SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 21 of 24 81. After careful consideration of the present application, legal arguments contained in the written submissions filed, the Court is not satisfied that the Defendant/Applicant has demonstrated that the appeal would be rendered nugatory if the present application is refused and the Judgment of the Court, exhibited by the Defendant/Applicant as Exhibit A is enforced. 82. Relying on all the authorities cited and in view of the analysis above, the Court is not persuaded that a case has been made for it to exercise its discretion in the Defendant/Applicant’s favour. VII. CONCLUSION 83. The application for stay of execution pending appeal is therefore refused. 84. Costs of Three Thousand Ghana Cedis (GHS 3,000) is awarded against the Defendant/Applicant in favour of the Plaintiff/Respondent having regard to Order 74 of C.I. 47. [SGD] NABEELA NAEEMA WAHAB J. (MS.) (JUSTICE OF THE HIGH COURT) COUNSEL: MIRANDA BANNERMAN-QUARTEY - PRESENT HOLDING BRIEF OF ANDREW DANIELS FOR THE PLAINTIFF/ RESPONDENT SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 22 of 24 CHARLES TETTEH WITH DAVID AGYEKUM - PRESENT FOR THE DEFENDANT/ APPLICANT CASES REFERRED TO: 1. Nana Kwadwo Poku vrs Michael Adusei [Unreported, Suit No. H1/02/2017, dated 24th July 2018]. 2. Republic v Court of Appeal; ex parte Ghana Commercial Bank Pensioners Association [2001/02] SCGLR 883. 3. Dzokoto & Amissah v BBC Industrials Co (Ghana) Ltd and City Express Bus Services Ltd [2011] 2 SCGLR 825 4. Republic v Court of Appeal, Ex Parte Sidi (1987-1988) 2 GLR 170. 5. Nana Akwasi Agyeman VIII v Nana Hima Dekyi XIII (1982-83) GLR 453. 6. London Permanent Benefit Society v. De Buer [1968] 1 ALL ER 372. 7. Ogyeadom Obranu Kwesi Atta VI v. Ghana Telecommunications Co. Ltd & Anor (Civil Motion No. J8/131/2019; 28th April, 2020; SC). 8. The Republic v. High Court (Commercial Division 9), Accra, Ex Parte Ecobank [Unreported; Civil Motion No. J5/10/2022; 18th January 2022;SC] 9. Ghana Telecommunications Co. Ltd & Another v Atta VI [2017-2020] 1 SCGLR 1090. 10. Ghana Airport Company Ltd v. Osei Ansong [Unreported; Civil Appeal No. H1/23/2014; 30th April 2014; CA]. 11. Mensah v Ghana Football Association and others [1989-90] 1 GLR. 12. Tony Adams v. Anang Sowah [Unreported; Civil Motion No J8/2/2009; 14th January 2009; SC]. 13. NDK Financial Services Ltd v Yiadom Construction and Electrical Works [2007-2008] 1 SCGLR 93. 14. Charles Osei Bonsu v. Dorothy Aboagye & Anor (2015) 81 GMJ 25. 15. Livingstone Djokoto v. BBC Industrials [2012] 36 MLRG 107. 16. Joseph v. Jebeile and Another (1963) 1 GLR 387-392 SC. SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 23 of 24 17. Linotype-Hell Finance Ltd v. Baker [1992] 4 ALL ER 887. 18. Micaiah Addai (Masquerading as the president of the Association of Seventh Day Pentecostal Assemblies) vrs Elder Enoch Ofori Jnr and 3 others [Unreported; Civil Motion No. J8/29/2023; 16th May 2023; SC] SUIT NO. LD/0009/2015 – Francis Vidal Laryea vs Finali Ventures Limited Page 24 of 24