NTAADU VRS BOAKYE (J4/32/2024) [2024] GHASC 54 (11 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – AD 2024

Coram

OWUSU (MS.) JSC (PRESIDING) LOVELACE-JOHNSON (MS.) JSC ASEIDU JSC DARKO ASARE JSC ADJEI-FRIMPONG JSC

Civil Appeal

NO. J4/32/2024

11TH NOVEMBER, 2024

LAWRENCE YAW NTAADU ……….. PLAINTIFF/RESPONDENT/RESPONDENT VRS STEPHEN BOAKYE ……….. DEFENDANT/APPELLANT/APPELLANT

Judgment

ADJEI-FRIMPONG JSC: This appeal turns on a simple issue. It is, whether the learned Justices of the Court of Appeal properly exercised their discretion in refusing to stay execution of its judgment pending appeal in this Court. It is common learning that granting or refusing stay of execution of a judgment or decision is discretionary. This is therefore an appeal against the exercise of a court’s discretion.

The law in this area is fairly settled. BADDOO JSC sitting in this Court in the case of KYENKYENHENE VRS ADU [2004-2004]1 SCGLR 142 at 154 had cause to refer to CHARLES OSENTON & CO VRS JOSEHNSTON [1942] AC 130 HL as follow: “The law as to the reversal by a Court of Appeal of an order made by a judge below in the exercise of his discretion is well established and any difficulty that arises in due only to the application of well-established principles in an individual case. The appellate tribunal is not at liberty to merely to substitute its own discretion for the discretion exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion, in that no weight or no sufficient weight has been given to relevant considerations, such as those urged upon us, by the appellant, then the reversal of the order on appeal may be justified.” The principle has gained large following in many cases in this Court. WOOD JSC (as she then was) SAPPOR V WIGATAP [2007-2008] SCGLR 176 at 697 stated the position this way: “The principles clearly enunciated in the two Court of Appeal decisions in NKRUMAH V SERWAA [1984-84]1 GLR 190 and BALLMOOS V MENSAH [1984-84]1 GLR 725, are that an appellate court would not interfere with the exercise of discretion where the court below applied wrong principles, or the conclusion reached would work manifest injustice or even that the discretion was exercised on wrong or inadequate materials.” See IN RE PARAMOUNT STOOL OF BAMIANKOR; EFFIA IV & ANOR VRS NANA TAIBA II & ORS (2010) SCGLR 37; BUABENG VRS FORKUO 22 nd Jan 1970, DIGESTED IN (1970) C.C. 59 CA; OWUSU VRA OWUSU ANSAH [2007-2008] SCGLR 870; TRABOULSI & CO VRS PATERSON ZONCHONIS & CO., LTD [1973]1 GLR 133.

This case originated in the High Court, Sefwi Wiawso. It involved the sale of a hotel then called MARCELLINI situate at Sefwi Essam. The Plaintiff/Respondent/Respondent/Respondent, the Plaintiff for short, was the owner of the hotel. Sometime in April 2014, he offered to sell same to the Defendant/Appellant/Applicant/Appellant (herein Defendant). Out of the agreed price of GHC150,000, the Defendant paid GHC40,000.00. The remaining amount of GHC110,000 was to be paid by 31st December 2014. Meanwhile the Defendant was put in possession of the hotel which he started running. He even changed the name from “MARCELLINI” to “OBAAPA HOTEL”. The transaction itself appears not to have been properly written. The receipt for the payment of the GHC40,000 however stated in part: “The Transferee/Stephen Boakye undertakes or promises to pay to the seller the remaining balance of GHC110, 000, 00 on or before 31st December, 2014 without fail. Failure to pay it on the said stipulated time, the Transferor can review the transaction.” Eventually the Defendant defaulted on payment of the outstanding amount. The Plaintiff purported to review the transaction by increasing the price to GHC300,000.00. That, the Defendant failed to pay. The Plaintiff therefore commenced the suit at the High Court. He sought the following reliefs: i. An order for the recovery of the building which is being run as Hotel Obaapa by the Defendant which said hotel Defendant agreed with the Plaintiff to buy but could not pay for the full cost. ii. An order directed at the Defendant to account for the period that the Defendant has operated to hotel, i.e. from 22/04/2014 to date of recovery of possession, and Defendant deposit paid therefrom.

iii. An order that Defendant pays for the items/properties destroyed whilst operating the said hotel iv. An order of injunction to restrain the Defendant, his agents, assigns, etc. from further operations at the said hotel v. Further order or orders as this Court may deem fit. The High Court at the end of trial gave judgment in favour of Plaintiff but not in terms of the reliefs sought. The Court was of the view that the recovery of possession of the hotel and the ancillary reliefs were not available to the Plaintiff. Instead, it enforced the supposed review clause on the receipt by ordering the Defendant to pay the sum of GHC300,000.00 subject to the deduction of the initial deposit of GHC40,000.00. Interest was ordered to be paid on the amount fixed. On appeal to the Court of Appeal, the Defendant succeeded in part. The learned Justices took the view that the Plaintiff was entitled to recover the property. They so held and further ordered the Defendant to restore the physical structure of the hotel to its pre - contract state, fair wear and tear excepted. Still aggrieved, the Defendant has appealed the substantive judgment in this Court. In the meantime, his application for stay of execution pending appeal failed in the Court of Appeal. The learned Justices of the Court of Appeal had simply ruled: “This is an application by the Defendant/Appellant/Appellant/Applicant for Stay of execution pending appeal. It is opposed by the Plaintiff/Respondent/Respondent /Respondent. We have considered the submission for the Counsel for the Respondent and all the processes filed by the parties. We are not satisfied that the Applicant has demonstrated that the application be granted. There are no exceptional circumstances. The application is therefore refused.” The Defendant appeals against the above ruling in this Court on the following grounds:

a. The ruling/decision of the Court of Appeal was against the weight of documentary evidence/records b. The Court of Appeal failed to exercise their discretion judicially c. The order/ruling of the Court of Appeal was against the natural justice rule, having regard to the fact that, Counsel for the Defendant/Appellant/Applicant/Appellant tendered in an excuse duty. On examining the record before us, none of the grounds of appeal deserves any detailed discussion as they bear little merit. The plaint under the ground (c) is simply that Counsel for the Defendant was not in court and had filed an excuse duty before the Court. Therefore, by proceeding to determine the application for stay, the audi alteram paterm rule was breached. This contention owes must to logic and authority. It fails to recognize that the Learned Justices were seised with his motion paper, the supporting affidavit and the annexures. It was a matter to be fought on affidavit evidence. Nothing was to be said that was not in the affidavit. The ruling is clear that the learned Justices of the Court below considered the entirety of the processes before reaching their decision. The Defendant’s application was to succeed or fail on the processes he had filed and not what Counsel for his side would have said, had he been present. We simply dismiss the ground (c). Grounds (a) and (b) can be taken together. We are told that the learned Justices did not exercise their discretion judicially and that their decision is against the weight of documentary evidence. Naturally, one would expect the Defendant to make reference to document(s) available on record which would have enured to their case and/or destroyed the Plaintiff’s case. In reality however, what the Defendant appears to have meant was that the learned justices had relied on a Sales Book (which the Defendant describes as self-serving) to determine the application against him.

Reading the ruling of the Court as quoted above, it is not clear to say that the said document was relied upon to rule against the Defendant. And given that Counsel was not in Court at the determination of the application, we wonder how he arrived at that position. In any case it will appear from the judgment of the Court of Appeal that the learned justices had attached no considerable weight to the said Sale Book in determining the various reliefs. This is what they wrote at page 28 of their judgment about the Sales Book in particular and records in general [page 35 ROA]: “Apart from a couple of receipts tendered at the trial, the record does not reflect the keeping of any proper books of account by the Defendant regarding the running of the hotel. In that sense, an order for account would not achieve any useful purpose as figures are likely to be cooked up.” We do not, from this statement, see how the learned justices would turn round to accord such a considerable weight to the Sales Book as to inform their decision against the Defendant in the application. As is clear from the ruling their Lordships of the Court of Appeal considered all the processes filed by the parties and were not satisfied that the Defendant demonstrated that the application be granted. They found no exceptional circumstances warranting the grant and therefore dismissed the application. The Defendant in this case has failed to demonstrate that the learned Justices failed to exercise their discretion justly. In the affidavit in support of the application for stay, the Defendant had deposed to the following in paragraphs 15 and 19 as follows: “15. That I am advised and verily believe same to be true that, the Court of Appeal never took into consideration the number of years and the quantum of money paid to the Plaintiff for all those years. To that extent, the decision of the Court of Appeal has resulted in substantial miscarriage of justice to us…”

“19. That the grant of this application shall create a level playing field for all the litigating parties pending the final determination of the substantive Appeal.” The argument they make before the Learned justices which failed to convince them are the same argument they have put before us forgetting that it is not the business of this Court to substitute our discretion for that the Court of Appeal. It is largely the same arguments that are made before us when Counsel submits at paragraph 20 page 17 of his Statement of case thus: “Furthermore, My Lords, the status quo ante should be maintained in this case/suit pending the final determination of the appeal lodged before the Honourable Supreme Court and same is awaiting determination. The Appellant has been the one operating the Hotel under reference since the year 2014 and has been maintaining same with his own resources…” It seems to us perusing the arguments of the Defendant before us he has merely repeated the arguments made before their Lordships at the Court of Appeal to convince us to reverse their decision, forgetting that, it is not the business of this Court to substitute our discretion for that of the Court of Appeal. It is settled principle that it is not the duty of an Appellant seeking to overturn a decision by the exercise of discretion to merely to repeat the same arguments before the appellate Court in the hope that it would exercise the discretion differently. See LAFFERI (NIG) LTD VRS NAL MERCHANT BANK PLC (2015)14 NWLR Part 1478, Page 64 at 87-88. We find no merit in the Defendant’s grounds (a) and (b) also. On our analysis of the facts and the applicable, we think their Lordships at the Court of Appeal were right on their decision to dismiss the application for stay of execution. The appeal is therefore dismissed.

(SGD.) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT)

(SGD.) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT)

(SGD.) A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT)

(SGD. ) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT)