Commercial Law Index

The court determined the principles of granting a stay of execution and injunction pending appeal in a case that involves a state government.

The first respondent raised a preliminary objection on the jurisdiction of the court, since there was a stay of execution pending in the court below on the same issue and the first appellant had not appealed on the attachment of the appellant’s monies in banks (garnishee order). In determining its jurisdiction, the court applied Order 4 Rule 6 of the Court of Appeal Rules 2011 (Rules of the Court) and held that it had discretionary powers to make injunctions pending appeal even when no application lied in the court below depending on the facts and circumstances of the case. Additionally, the court held that there was an appeal predicated on the garnishee order thus the issues were properly before it.

The court set out the principles of granting a stay of execution and injunction pending appeal: to preserve the subject matter of the appeal from irreparable damage pending appeal. It also held that the principles are applied when a party has an arguable appeal and to enhance public interest.

The court observed that the appellant had admitted its indebtedness to part of the judgment debt and held it just and fair to refuse the application with respect to that amount. The court held that the trial court erred in granting garnishee orders on balance of the judgment debt. Accordingly, the application succeeded in part. 

This was an appeal against a garnishee order granted by the court. The appellant contended that the garnishee proceedings were null and void because the first respondent did not disclose that the second respondent fell within the jurisdiction of the lower court. Further, the appellant argued that there was abuse of court process because the garnishee order was made after the appellant was granted leave to appeal.

The respondent argued that the appellant was not a party to the garnishee proceeding and cannot challenge the procedure.

In deciding the matter, the court held that the question of the judgement creditor establishing that the garnishee was within jurisdiction was not for the judgement debtor to determine but the court. It found that the appellants were not parties to the garnishee proceedings and that an appeal does not operate as a stay of execution. The appeal was thus dismissed.
 

Litigation was commenced to recover a debt from a company incorporated in Australia that was wholly owned by a Ghanaian company. The High Court granted judgment in favour of the appellant for the amount due. The judgment was appealed because the respondent proposed a scheme of arrangement to reorganise their debts with their creditors. but the appellant subsequently the appellant filed a petition to liquidate the company as it was unable to pay off its debts. The court granted to wind up the company. However, the Court of Appeal granted a stay of execution of the winding-up before the respondent appealed the original decision of the High court to pay the amount due.

The appellant did not succeed with the appeal because they did not prove that the Court of Appeal failed to take relevant matters into consideration, considered irrelevant matters of misapplied the law.