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RULING
ESSILFIE-BONDZIE, J.A:
There are two
applications before this Court in motion No. 212/2002.
Mr. E. V. A. Adjetey filed on application for stay of
Execution and for an interim preservation of property
pending the hearing of the appeal filed in this case.
Motion 2/8/2002 filed
by Mr. Ivan Quansah on behalf of the 1st to 5th
plaintiffs/Appellants is for an order of stay of
execution of the same judgment. After close of
submissions by Mr. E. V. A. Adjetey and Mr. D. O.
Lamptey on behalf of the 6th plaintiff/appellant for an
order of stay of the execution of the judgment (which is
dated 30th May 2002) and preservation of property, Mr
Quansah who as already mentioned is also moving the
court for stay of the execution of the same judgment
applied for the two motions to be consolidated as they
deal substantially with the same matter.
This request was
granted. In his submission to this Court Mr. E. V. A.
Adjetey dwelt mainly on the various affidavits filed on
behalf of the 6th plaintiff/appellant and recited the
facts contained in them. He also submitted that the
Court erred when it said that what was claimed by the
6th plaintiff is 1,793 acres plus instead of 793 acres
plus. He contended that the 6th plaintiff supported his
claim with a map and therefore the Court went wrong when
it said that the 6th plaintiff/appellant did not support
his claim with also commentary evidence.
In his submission in
which he associated himself with the submission of Mr.
Adjetey, Mr D. O. Lamptey recited the contents of the
supplementary affidavit filed on the 23/7/2002 (that is
yesterday) on behalf of the 6th plaintiff/appellant. He
also made reference to three principles essential for
the grant of stay of execution and maintained that the
1st defendant/Respondent is dissipating the lands
contained in the Statutory Declaration dated 4th May
1976 and registered as 761/1977 with the Lands
Commission by the 1st defendant’s family. That if the
application is not granted and the appeal succeeded the
judgment would be rendered nugatory. That is the
subject-matter of the appeal would have been completely
dissipated and the judgment would be a sham.
Mr. Quansah who
associated himself with the submissions of both counsel
for the 1st – 5th plaintiff/appellant argued that the
appellants brought the suit as a result of the
registration of the Statutory Declaration by the family
of the 1st defendant/Respondent. He made reference to
Act 122 and submitted that the purpose of Act 122 is to
allow transactions of land to be registered and that the
Statutory Declaration binds only the person who
registered the document. He said that the Lands
Commission is bound to register any document presented
to be registered. In a nutshell he recited the facts
contained in the affidavits filed by the 1st – 5th
plaintiffs.
In this case the
applicants instituted an action for a declaration of
title to land, trespass and injunction. They laid claim
to a large tract of land purported to be included in the
Respondent’s family land, which have been declared in a
Statutory Declaration stamped and registered as 761/77.
Their claim for trespass against the Respondent was
dismisses by the High Court on the grand that the
applicants failed to lead evidence to prove it. In
respect of reliefs (f) and (g) of the plaintiffs’ claim
endorsed on the Writ of Summons for trespass the learned
trial judge made the following findings at page 285 of
the record of proceedings “I shall before passing to the
evaluation of the evidence in this matter pause to say
that from the plaintiffs’ amended pleadings of 4/7/2000
there is nothing disclosed against the 1st defendant as
far as claim for damages for trespass contained in the
endorsement as (f) and (g) goes. Consequently, I desire
not to detain this Court’s time in respect of the
reliefs but proceed to have the said reliefs dismissed”
There was no appeal against the above decision. The
irresistible inference is that there was no proof or
evidence disclosed that the 1st defendant (Respondent)
had trespassed or encroached on any land belonging to
the applicants. Now if the 1st defendant or Respondent
has not trespassed on the plaintiffs or applicants’ land
then on what lands, are they asking this Court to impose
the interim preservation order or injunction? In other
words what wrong have they committed to compel this
Court to impose a restraining order on the 1st defendant
and his family.
In the judgment
delivered by this Court which has been assailed in this
appeal, the Court allowed the appeal inter alia because
it found that the applicants failed to prove their
capacity to sue. They also failed not only to establish
their boundaries but to identify positively of the lands
which they claimed were included in the 1st defendant’s
family’s lands described in the registered Statutory
Declaration. It must be pointed out that since the 1st
defendant or Respondents did not counter-claim the Court
did not make an order which is executable.
After allowing the
appeal the court gave judgment in favour of the 1st
defendant or Respondent. It is our view that as there is
no Order to execute, the instant application for stay of
execution and preservation of property is misconceived.
The applications by, the 1st – 5th plaintiffs (1st – 5th
plaintiffs’ applicants) and the 6th plaintiff/applicant
therefore are dismissed.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
FARKYE, J.A:
I agree.
S. T. FARKYE
JUSTICE OF APPEAL
ANSAH, J.A.:
I also agree.
J. ANSAH
JUSTICE OF APPEAL
COUNSEL
MR. E. V.A. ADJETEY,
WITH HIM MR. D. O. LAMPTEY FOR THE 6TH
PLAINTIFF/APPELLANT.
MR. QUANSAH FOR THE 1ST
– 5TH PLAINTIFFS/APPELLANTS.
MR. LINDSAY FOR THE 1ST
DEFENDANT/RESPONDENT. |
