Richard Owiredu v Beijing Urban Construction (CIV APP 15 of 2008) [2008] SLCA 63 (18 July 2008)

Ss !N THE COURT OF APPEAL FOR SIERRA LEONE Misc: APP. 4/2008 BETWEEN: Richard Owiredu - Appellant/Applicant AND Beijing Urban Construction Group Limited : 1" Respondent (Carrying on business as Bintumani Hotel) Clarence

Coram

HON. MR. JUSTICE S.A. ADEMOSU J.A. HON. MR. JUSTICE N.C. BROWNE-MARKE J.A. HON. MRS. JUSTICE A. SHOWERS J. S.M. SESAY ESQ. FOR APPLICANT R. JOHNSON ESQ. FOR RESPONDENT 2 (& SH RULING DELIVERED ON THE f $ DAYOF ~ 7 2008 Ademosu J.A. By a Notice of Motion dated 5” May 2008 the applicant prayed Inter alia for an order that execution of the judgement of the High court dated 25" day of January 2008 and all | Subsequent proceedings be stayed pending the hearing and |

determination of Appellant/Applicant’s appeal to the Court of Appeal for Sierra Leone The application is supported by the affidavit of Richard Owiredu Appellant/applicant and exhibits thereto attached The application was opposed on behalf of the 1" Respondent but only technical on grounds which we have already rejected. Although R. Johnson Esq in his argument maintained that this application should not be granted because in his opinion special circums:ances have not been shown by the Appellant/Applicant. Turning to the substance of the application it is necessary to see whether or not this Court ought to grant the application for stay of execution of the judgement. Counsel for the applicant has urged that the Court should grant the application because of the reasons deposed to in the supporting affidavit and the exhibits attached. The reasons advanced that are not in dispute are:

1) That Appellant/Applicant stood for bail for the 2” Respondent at Aberdeen Police Station on condition that he produced him the next day.

2) That he produced the 2 Respondent as required after which the case file and the 2” Respondent were transferred to Congo Cross Police Station for further investigation and the Appeilant/Applicant had nothing to do with the case again _

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3) That Ghanaian High Commissioner even verified what he has deposed to but action was taken against hen

The contention of counsel for the Applicant is that the document the 4° Respondent relied on as a guarantee for the debt of the 2~ Respondent was discharged when the Applicant produced the 2 Respondent to the Police. Counsel for the 1" Respondent's argument is that the guarantee still stood. Whether or not the guarantee still stood is an issue which would be fully considered by the Court of Appeal. For now, we are content to say that the Applicant has shown prima facie good grounds of appeal. What remains for us to consider

is whether special circumstances have been shown to warrant a stay In his affidavit the Applicant states inter alia that the judgement of the High Court has a potential of devastating his business completely if not stayed. By the way the amount involved is US23,975/87 plus interest on the said sum at the rate of 15% per annum and costs assessed at Le4,500,000.00 That the basis of the 1** Respondents claim pursuant to the judgement of the High Court was founded on the said guarantee to which he had already complied by producing the 2" Respondent to the Police at Aberdeen Police Station. What | can consider to be a serious averment Is the one where the Applicant States that he carries on business here and the judgement debt and costs will paralyze his business because it would eat into his capital base anu force him to lay off some of his staff. He has stated that he

is prepared to enter into a Bond to abide the outcome of his appeal.

by The granting of stay of execution is based on proof of exceptional or ~ speciai circumstances Radar V Jaber (1950-56) ALRS L

115. In Tuck v Southern Counties Deposit Bank (1889) 42 ChD. 471, 61 LT. 348 it was held that the court should consider all the facts before deciding whether they constitute proper facts for its discretion to be exercised As this Court has said before it is not every ground of law that qualifies as a special circumstance for a stay of execution For a Z ~ ye ground of law to so qualify it ought to be shown it is substantial that a U decision on it one way or the other will affect the substratum of the fe Ae aes whole case and the applicant has some chance of success lam | satisfied that an issue of law has been raised on which the compelling right of the parties depend so that is desirable to resolve it in the Court of Appeal. The result is, | feel that justice of the case demands that a stay be granted. - 5 In the premises, a stay of execution of the judgement dated 25" January 2008 is hereby granted as prayed but on condition that the Applicant do pay costs under the judgment to the solicitors for the " Respondent on their undertaking to return them if the appeal is Successful.

HON. MR. JUSTICE S.A. ADEMOSU

| acetal {Oo NALD “a1 of iON. MR. JUSTICE N.C. BROWN-MARKE - | AGREE A. Slower fer/c6 HON. MR. JUSTICE A. SHOWERS | AGREE