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Property -
Stay of execution pending appeal
- Refusal of the grant – Whether
or not the Court of Appeal
decision as erroneous - Whether
or not the decision occasioned a
miscarriage of justice
HEADNOTES
The
Respondent in this application
invoked the original
jurisdictions of the high court
seeking a number of reliefs.
After a closely contested trial
between the parties, the High
Court entered judgment in favour
of the Respondent declaring him
owner of the property Plot No.
61A Airport Residential Area
Accra and damages for
trespass. The Applicants
counter claim was also
dismissed. Dissatisfied with
the said judgment the Applicant
filed a Notice of Appeal and
subsequently an application for
stay of execution pending the
hearing of the Appeal. The
trial judge dismissed the
application which was then
repeated at the Court of
Appeal. The Court of Appeal on
19th March, 2014
dismissed the application.
HELD
From the
affidavit evidence before me
especially, the affidavit in
opposition filed on 8th
April, 2014 paragraphs 13, 19
and 26 which have not been
discounted, the applicant does
not live in the premises himself
and will thus not suffer any
hardship should this application
be refused. On the contrary it
is the Respondent who would be
frustrated and deprived of the
fruits of his victory for no
good reason, should this
application be granted.
Accordingly this application
fails and it is dismissed. I
make no order as to costs.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Joseph V.
Jebeille (1963) I GLR 387
Golden Beach
Hotels (GH) Ltd. vs. Pack Plus
Int. Ltd (2012( SCGLR 452
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
J. B.
AKAMBA
COUNSEL
MR. YONI
KULENDI FOR
DEFENDANT/APPELLANT/APPLICANT
WITH HIM DENNIS ADJEI DWUMOH,
GEORGINA ARTHUR AND ROSENBERG
OWUSU ADOKOH
.
JUSTINA
TETE-DONKOR WITH HER CHRIS
YEBOAH FOR PLAINTIFF/ RESPONDENT
/ RESPONDENT PRESENT
____________________________________________________________________________________
R U L I N G
____________________________________________________________________________________
This is a
motion on Notice for an order to
suspend the refusal of the grant
of stay of execution pending
appeal and for stay of
proceedings consequent upon the
order of refusal to stay
execution delivered by the Court
of Appeal on 19th
March, 2014.
The
Respondent in this application
invoked the original
jurisdictions of the high court
seeking a number of reliefs.
After a closely contested trial
between the parties, the High
Court entered judgment in favour
of the Respondent declaring him
owner of the property Plot No.
61A Airport Residential Area
Accra and damages for
trespass. The Applicants
counter claim was also
dismissed. Dissatisfied with
the said judgment the Applicant
filed a Notice of Appeal and
subsequently an application for
stay of execution pending the
hearing of the Appeal. The
trial judge dismissed the
application which was then
repeated at the Court of
Appeal. The Court of Appeal on
19th March, 2014
dismissed the application.
The Applicant
who labels the court of Appeal
decision as erroneous and
occasioning a miscarriage of
justice has filed the present
motion for an order to suspend
the order of refusal and for a
stay of proceedings consequent
upon the order of refusal to
stay execution.
I have
carefully considered the
arguments of both counsel in
this application as well as read
the motion paper and the
supporting affidavits and
annexures and those in
opposition. I have come to the
view that no exceptional
circumstances beyond or
additional to those elements
summarised by Akufo Addo JSC in
the case of Joseph V. Jebeille
(1963) I GLR 387 have been urged
on me to warrant a grant of this
prayer. This is a necessary
requirement for the grant of an
order to suspend an order of a
lower court or a stay of
proceedings consequent upon an
order refusing an application
for stay of execution as pithily
stated by my respected brother,
Dr. Date Bah, JSC in Golden
Beach Hotels (GH) Ltd. vs. Pack
Plus Int. Ltd (2012( SCGLR 452
at 459 thus : “According to the
argument we earlier advanced in
this ruling, the criterion for
suspending an order of a lower
court should not be identical
with the criterion summarised
by Akufo Addo JSC in the
Jebeille case in relation to
applications for stay of
execution, but should embody an
additional element or
requirement. The precise nature
of this additional element or
requirement we would leave to
subsequent cases to develop.
However, subject to fine-tuning
in the light of the facts of
subsequent cases we would
propose that a possible test
could be the nugatory effect
referred to in the Jebeille
case (supra), combined with the
need for exceptional
circumstances. If this test of
a “nugatory effect-plus more”
is not insisted upon, there
would be no point in maintaining
the distinction between the two
kinds of orders, namely, stay of
execution and suspension of
orders of lower courts”.
From the
affidavit evidence before me
especially, the affidavit in
opposition filed on 8th
April, 2014 paragraphs 13, 19
and 26 which have not been
discounted, the applicant does
not live in the premises himself
and will thus not suffer any
hardship should this application
be refused. On the contrary it
is the Respondent who would be
frustrated and deprived of the
fruits of his victory for no
good reason, should this
application be granted.
Accordingly this application
fails and it is dismissed.
I make no
order as to costs.
(SGD) J. B.
AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
MR. YONI
KULENDI FOR
DEFENDANT/APPELLANT/APPLICANT
WITH HIM DENNIS ADJEI DWUMOH,
GEORGINA ARTHUR AND ROSENBERG
OWUSU ADOKOH.
JUSTINA
TETE-DONKOR WITH HER CHRIS
YEBOAH FOR PLAINTIFF/ RESPONDENT
/RESPONDENT PRESENT.
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