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Land - Declaration of
title - Damages for trespass -
Special leave - Recovery of
possession - Stay of execution
pending appeal - Wether or not
the said contempt proceedings
were still pending before the
High Court for determination -
Whether or not the Court of
Appeal relied on unproven
matters to deny the appellants
the remedy sought
HEADNOTES
On 5th
September 2012, the Fast Track
Division of the High Court,
Accra, delivered judgment in
favour of the
Plaintiffs/Respondents
(Respondents), inter alia, for
declaration of title to a parcel
of land at Achiaman, near
Amasaman, damages for trespass,
recovery of possession , and
perpetual injunction restraining
the Defendant/
Defendants/Appellants
(Appellants) “their grantees,
licensees, workmen, servants,
successors in title and privies
whatsoever from entering,
remaining on or in any way
encumbering the land or any part
thereof or undertaking any
construction or other work
thereon inconsistent with the
absolute ownership, possession
and / or enjoyment” of the
Respondents.”
Being dissatisfied with the
decision, the Appellants
promptly lodged an appeal
against it to the Court of
Appeal. Their applications for
stay of execution of the said
judgment to the trial High
Court, and the subsequent repeat
application to the Court of
Appeal, were however dismissed
by the respective courts. The 21st
May, 2013 succinct ruling of the
court of Appeal which has
culminated in this instant
appeal
HELD :-
This analysis settles the issue
of whether or not the
appellant’s deposition that the
applicants were indeed at the
date of the hearing of the
application facing contempt
proceedings was in fact proven
and a fortiori, whether the
court relied on extraneous
matters to judge the appealed
decision, his subsequent
acquittal notwithstanding. The
available evidence conclusively
proved the essential fact, and
hence no unproven or extraneous
matters influenced the decision.
It bears emphasis that if the
appellants truly believe that
they are now by their subsequent
acquittal, entitled to a reverse
order, which evidence was
unavailable at the date of the
hearing of the application for
stay, it certainly cannot be
obtained through this appeal
process in this present form. In
the result, we find no merit in
this appeal on dismiss same. On
both procedural and substantive
grounds this appeal fails.
DISSENTING OPINION
STATUTES REFERRED TO IN JUDGMENT
Court of Appeal
Rules, 1997, CI 19.
Supreme Court
Rules, C.I. 16.
Courts Act 1992,
Act 459,
1992 Constitution
Evidence Act, 1975,
NRCD 323.
CASES REFERRED TO IN JUDGMENT
Blunt v Blunt
[1943] AC517
Ballmoos v Mensah
[1984-86] 1 GLR 724
N.B. Landmark
Limited v Kishini Lakiani
[2001-2002] SCGLR 318
Djokoto & Amissah v
BBC Industrials Co (Ghana) Ltd &
City Express Bus Services [2011]
2SCGLR 825,
Crentsil v Crentsil
[1962] 2 GLR 171
Appiah v Pastor
Laryea-Adjei [2007-2008] 2 SCGLR
863
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
WOOD
(MRS.) CJ:-
COUNSEL
BABA AVIO FOR THE APPELLANTS
NANA OFFEI DJAN FOR THE RESPONDENTS
WOOD (MRS.) CJ:-
On 5th
September 2012, the Fast Track
Division of the High Court,
Accra, delivered judgment in
favour of the
Plaintiffs/Respondents
(Respondents), inter alia, for
declaration of title to a parcel
of land at Achiaman, near
Amasaman, damages for trespass,
recovery of possession , and
perpetual injunction restraining
the Defendant/
Defendants/Appellants
(Appellants) “their grantees,
licensees, workmen, servants,
successors in title and privies
whatsoever from entering,
remaining on or in any way
encumbering the land or any part
thereof or undertaking any
construction or other work
thereon inconsistent with the
absolute ownership, possession
and / or enjoyment” of the
Respondents.”
Being dissatisfied with the decision,
the Appellants promptly lodged
an appeal against it to the
Court of Appeal. Their
applications for stay of
execution of the said judgment
to the trial High Court, and the
subsequent repeat application to
the Court of Appeal, were
however dismissed by the
respective courts. The 21st
May, 2013 succinct ruling of the
court of Appeal which has
culminated in this instant
appeal reads:
“The grant or refusal
of an application for stay of
execution is an equitable remedy
and depends on the discretion of
the court. He who comes to
equity must do to equity. From
the affidavit evidence and also
from the annexures to these
affidavits, it is clear to us
that the Applicants have not
come to this court with clean
hands. The affidavit evidence
before us show that the
Applicants are currently facing
contempt proceedings for
allegedly ignoring the judgment
to(sic) the trial court and the
pendency of application for stay
of execution and gone into the
land to perpetuate acts on the
land. In the circumstances, we
do not feel disposed to granting
the application. The application
is accordingly dismissed.”
The Appellants question the
correctness of the said ruling
on grounds that:
1. “The Court of Appeal in
exercising its discretion drew
wrong inferences from the facts
in dismissing the application
for stay of execution pending
appeal wherein occasioned a
miscarriage of justice.
2. The Court of Appeal erred
when it took into consideration
matters which were not properly
before it in dismissing the
Defendants/Appellants
application.
3. The ruling is against the
weight of the affidavit
evidence.”
Judged in the light of the ruling
complained of, these three
grounds of appeal are clearly so
interrelated, they would, for
prudential reasons, be
considered together. From that
perspective, the central
argument of the Appellants as
relevantly expressed in their
statement of case may be
identified as the following:
“At the date of ruling on
21/5/2013 the said contempt
proceedings were still pending
before the High Court for
determination. The contempt
application against the
Appellants was finally dismissed
on 13/1/2014. This was after the
Appellants motion for stay of
execution was dismissed on
21/5/2013 by the Court of
Appeal.
The Court of Appeal in
dismissing the application for
stay of execution relied on the
contempt proceedings which was
yet to be determined by the High
Court when the court held in its
ruling that “The affidavit
evidence before us show that the
Applicants are currently facing
contempt proceeding for
allegedly ignoring the Judgment
of the trial court and the
pendency of the application for
stay of execution and gone into
the land to perpetuate acts on
the land.”
…the Court of Appeal took into
consideration unproved and
extraneous material in
dismissing the application for
stay of execution. This is so
because the contempt proceedings
which the Court of Appeal relied
on were not pending before the
Court of Appeal. They therefore
constituted unproved or
extraneous material at the time
the application for stay of
execution was decided. This, it
is submitted occasioned a
miscarriage of justice. More so
as the contempt proceedings were
themselves dismissed on
13/1/2014.”
The Appellants garnered support for
this line of argument
pertaining to “unproved
material” from the case of
Blunt v Blunt [1943] AC517 at
518 HL, an English case which
was cited with approval in the
oft quoted case of Ballmoos v
Mensah [1984-86] 1 GLR 724 at
730. Blunt v Blunt (supra)
spelt out the principles
governing an appeal against a
discretionary relief in these
terms:
“An appeal against the exercise
of the court’s discretion may
succeed on the ground that the
discretion was exercised on
wrong or inadequate materials if
it can be shown that the
court acted under a
misapprehension of fact in that
it either gave weight to
irrelevant or unproved matters
or omitted to take relevant
matters into account, but the
appeal is not from the
discretion of the court to the
discretion of the appellate
tribunal.”
The Respondents mounted a two pronged
attack against the arguments
advanced in support of this
appeal the first, being what
they described as a preliminary
point of law, and which we had
very little difficulty in
dismissing as totally lacking in
merit. It was urged on their
joint behalf that since the
Court of Appeal’s order of
dismissal of their application
for stay of execution is not an
order executable by any of the
known execution processes, this
appeal is wholly incompetent and
the same ought to be dismissed
in limine, without subjecting it
to a merit based hearing.
Counsel relied on the case of
N.B. Landmark Limited v Kishini
Lakiani [2001-2002] SCGLR 318 at
page 320 to propound this
theory. Acquah JSC (as he then
was), had observed in the N.B.
Landmark Limited case that:
“Now it is trite learning that an
application for stay of
execution presupposes that the
order or decision in respect of
which the stay is sought is
capable of being executed by any
of the known processes of
execution. If the order or
decision is incapable of being
executed, an application for
stay of execution cannot be
applied in respect of it.”
Appellants’ counsel had further
expatiated upon the argument as
follows:
“… the Court of Appeal’s ruling
and order refusing to grant the
order for stay of execution is
not an order executable by any
of the known processes of
execution. The same therefore
cannot be stayed by this subtle,
nicodemus approach of veiling
their true intent and clothing
it in the form of an appeal.
In the final analysis,
therefore, the substance of the
appeal is nothing but frivolous,
vexatious and wholly without
merit, and the Respondents
submit that the same should be
dismissed.
But, as already noted, we found this
preliminary argument completely
flawed. This matter is an
ordinary appeal against the
Court of Appeal’s order of
dismissal of the application for
stay. Procedurally and
substantively, it is clearly not
an application for a stay of
execution of the court’s order
of dismissal. The principle in
NB Landmark Limited v Kishini
Lakiani (supra) would have
applied in toto if it were; that
is, if this matter were an
application for a stay of
execution of the dismissal
order.
It is trite learning that our
jurisprudence allows an
appellant who intends to apply
for a stay of execution of a
judgment, or order of a court,
to apply first to the court
which rendered the decision
complained of and proceed to
repeat same at the appellate
court if the application is
explicitly denied or granted
under such onerous or harsh
terms that would amount to a
refusal, the relevant rules
applicable to the Court of
Appeal, being rules 27 and 28 of
the Court of Appeal Rules, 1997,
CI 19. The relevant rules
pertaining to the Supreme Court
are provided under rule 20 of
the Supreme Court Rules, C.I.
16.
Also, an appellant whose repeat
application for stay of
execution to the Court of Appeal
is dismissed, has a
constitutional right to appeal
to this apex appellate court, in
terms of article 131 of the 1992
Constitution and s.4 ss. (2) of
the Courts Act 1992, Act 459,
provided of course he meets the
rather stringent requirements of
the relevant laws. A resort to
this appeal process, under such
circumstances, cannot therefore
by any stretch of imagination be
construed as a ploy or a veiled
attempt to obtain a stay of
execution of the dismissal
order. It is a legitimate
invocation of this court’s
appellate jurisdiction, by an
aggrieved party, to have the
repeat application, which was
first submitted to the Court of
Appeal, re-heard by way of an
appeal. Admittedly, this process
would give an appellant yet
another shot, indeed what
essentially appears to be a
third shot at the stay of
execution application, but that
is the state of the law to which
we in this jurisdiction are
committed. Therefore,
irrespective of one’s personal
views on the soundness or
propriety of this right
conferred by law, it is a
constitutional entitlement which
all appellants, including the
appellants before us, who are
desirous of obtaining a stay of
execution of orders made against
them, cannot be denied.
However, it is the procedural
imperatives that govern appeals
of this kind that has engaged
our minds. We had in the past
glossed over a critical legal
gateway that all appellants must
first satisfy and assumed
jurisdiction without questioning
the competence of appeals filed
which have not fulfilled this
important pre-condition which we
are about to discuss. We did so
in the case of Djokoto & Amissah
v BBC Industrials Co (Ghana) Ltd
& City Express Bus Services
[2011] 2SCGLR 825, which shares
commonality with this instant
appeal, in terms particularly of
the relief sought and the
procedure adopted. We
overlooked this essential legal
requirement and proceeded to
clothe ourselves with
jurisdiction and determined the
appeal on the merits, implying
that such appeals against
decisions of the Court of Appeal
is, unquestionably as of right.
As a court, which per article
129 (3) of the 1992 Constitution
is not bound by its previous
decisions on questions of law,
and may, for just reasons depart
from same, we would on this
occasion jettison our previous
decision given per incuriam and
state the law correctly as
follows.
The right to appeal to this court in
respect of an order of the Court
of Appeal, dismissing a repeat
application for stay of
execution, is not an automatic
right but one carefully
circumscribed by article 131 (2)
of the 1992 Constitution and s.4
(2) of the Courts Act, 1993, Act
459. It is a right exercisable
by special leave, as the
appellants counsel honourably
conceded when at a further
hearing, we invited him to
address us on whether the right
to appeal is of right or subject
to the grant of this court’s
special leave as pertinently
provided under s. 4 (2) of Act
459. It would be prudent to
produce in extenso the relevant,
s. 4 of Act 459. It provides:
4. Appellate jurisdiction
(1) In accordance with article
131 of the Constitution, an
appeal lies from a judgment of
the Court of Appeal to the
Supreme Court
(a) as of right, in
a civil or criminal cause or
matter in respect of which an
appeal has been brought to the
Court of Appeal from a judgment
of the High Court or a Regional
Tribunal in the exercise of its
original jurisdiction;
(b) with the leave
of the Court of Appeal, in a
cause or matter, where the case
was commenced in a Court lower
than the High Court or Regional
Tribunal and where the Court of
Appeal is satisfied that the
case involves a substantial
question of law or it is in the
public interest to grant leave
of appeal;
(c) as of right, in
a cause or matter relating to
the issue or refusal of a writ
or order of habeas corpus,
certiorari, mandamus,
prohibition or quo warranto.
(2) Notwithstanding subsection
(1), the Supreme Court may
entertain an application for
special leave to appeal to the
Supreme Court in a cause or
matter, including an
interlocutory matter, civil or
criminal, and may grant leave
accordingly.
(3) The Supreme Court has
appellate jurisdiction, to the
exclusion of the Court of Appeal
to determine matters relating to
the conviction or otherwise of a
person for high treason or
treason by the High Court.
(4) An appeal from a decision of
the Judicial Committee of the
National House of Chiefs lies to
the Supreme Court with the leave
of Judicial Committee or the
Supreme Court.
(5) Subject to subsection (2), the
Supreme Court shall not
entertain an appeal unless the
appellant has fulfilled the
conditions of appeal prescribed
under the Rules of Court.
An even cursory examination of this
instant appeal and indeed others
that have arisen from orders
flowing from repeat applications
to the Court of Appeal,
particularly dismissal orders,
demonstrates clearly that these
decisions, or orders, are
neither judgments of the High
Court nor Regional Tribunal in
the exercise of their original
jurisdiction. And so the
appellants before us did not
proceed under s. 4 (1) ss.
(a). Similarly, this appeal did
not fall under s. 4 (b) of Act
459, since this matter is not an
appeal in a cause or matter
which was commenced in a court
lower than the High Court or
Regional Tribunal. But, even if
it were, on the clear provisions
of s. 4 ss. b of Act 459, the
appellants would have no direct
access to this court without
first satisfying the leave
requirement.
It follows that appellants ought to
have first obtained special
leave, per s. 4 ss (2) of Act
459 before proceeding to submit
their appeal to this forum.
Understandably, this places on
them a rather onerous burden,
given that they have to
convincingly argue the likely
success of their intended appeal
within the special leave
application process. Anything
short of this will not meet the
just demands of the law, a sound
judicial policy, intended to
weed out unnecessary, frivolous
and vexatious applications for
stay, when obviously at this
point in time, the potential
appellant would have had two
bites at the legal cherry. It
therefore comes as no surprise
that counsel conceded that their
appeal is not properly laid
before this court. Consequently,
this appeal is incompetent, it
having being filed without the
special leave of this court, and
therefore without following due
process. On this score alone,
the appeal must suffer an in
limine dismissal on this legal
point. But there is yet another
substantive reason why we
declare that this appeal cannot
succeed even on the merits.
The argument that the court’s primary
finding that the appellants did
not approach the court with
clean hands, constituted
extraneous matters is clearly
untenable. Undoubtedly, that
finding related directly to the
undisputed fact per se of the
pendency of the contempt
proceedings and not the service
of court documents. Our
understanding of the matters
that were laid before us is
that the Court of Appeal had no
jurisdiction to delve into the
merits of the pending contempt
proceedings. And so we find the
extensive submissions made in
relation to the service of court
documents wholly irrelevant to
the key issue raised in that
simple appeal. We would thus,
limit our views to appellant
counsel’s contention that, in
any event, the subsequent
outright dismissal of the
contempt proceedings on which
the appellate court rested its
decision, renders it erroneous.
The Respondents counsel’s answer to
the submissions is reproduced
hereunder:
“2.5 …the contempt
issue placed before the Court of
Appeal was neither extraneous
nor irrelevant…
We submit that the
Appellants could not get the
proper appreciation of the
ruling and order of the Court of
Appeal because they placed the
civil jurisdiction exercised by
the Court of Appeal
with respect to the stay of
execution in the same basket as
the exercise of the High Court’s
quasi criminal jurisdiction over
the contempt application. The
two different jurisdictions
required different standards of
proof for those matters pending
before them, stay of execution
before the Court of Appeal and
contempt applications before the
High Court.
The Court of Appeal
carried out a civil and not a
quasi-criminal determination in
the matter before it to which
the contempt application papers
were filed as exhibits. The
Appeal Court did not determine
the issue of contempt and, in
accord, made it clear in its
ruling at page 81 of the Record
that Appellants were
“…currently facing contempt
proceedings for ALLEGEDLY
ignoring the judgment of the
trial High Court and the
pendency of the application for
stay of execution..”
This is an appeal against the
exercise of a court’s
discretion. The ground upon
which an appellate court may
interfere with the exercise of a
court’s discretionary
jurisdiction is too well settled
to admit of any argument.
Osei-Hwere JA, as he then was,
in the case of Ballmoos vrs
Mensah (supra) outlined the
principles as follows:
“it was observed by the
predecessor of this court in
Crentsil v Crentsil [1962] 2
GLR 171 at 175 that:
As to appeals from
the exercise of the courts
discretion, it is a rule of law
deep rooted and well established
that the Court of Appeal will
not interfere with the exercise
of the court’s discretion save
in exceptional circumstances.”
The Supreme Court has also set out the
circumstances under which an
appellate court would disturb
the grant or refusal of a stay
of execution in such cases as
Appiah v Pastor Laryea-Adjei
[2007-2008] 2 SCGLR 863 and
Djokoto v BBC Industrial Co
(Ghana) Ltd. (supra).
We are in complete agreement with the
argument that in applications
which seek to invoke a court’s
discretionary jurisdiction, such
as applications for stay of
execution, unproven matters or
facts constitutes extraneous
material, and cannot thus form
the basis of a grant or refusal
of the discretionary relief
sought. Failure to adhere to
this simple and sound principle
of law constitutes one of the
most basic grounds on which an
appellate court would, without
hesitation interfere with the
grant or refusal of the order,
as was clearly observed in Blunt
v Blunt (supra).
Therefore the question of whether or
not the Court of Appeal relied
on unproven matters to deny the
appellants the remedy sought is
very central to the just
determination of this instant
appeal. Having regard to the
thrust of their argument, the
important issue is what
qualifies as unproven matters,
as contextually understood in
Blunt v Blunt (supra) and which
the law strictly discounts in
applications for stay of
execution.
Applications for stay of execution are
predicated on the facts deposed
to in the accompanying
affidavits and annexures, if
any. In like manner, challenges
to such applications are via the
factual depositions contained in
opposing affidavits, including
annexures if any. And it is
precisely on the basis of the
supporting or opposing facts
that the application for stay of
execution is judged.
Consequently, a challenge to any
of the material facts on either
side of the legal divide
triggers the full panoply of the
evidentiary rules related to the
burden of proof provided under
ss. 10 and 11 of the Evidence
Act, 1975, NRCD 323. Thus, if a
party challenges a material fact
as deposed to and the party on
whom the burden of persuasion is
cast fails to discharge the
legal burden that fact may,
properly be classified as an
unproven fact and cannot ground
a grant or refusal of the order
for stay. And so clearly,
whether or not a matter
constitutes an unproven fact,
material or matter is a mixed
question of law and fact, which
issue is decided on a case by
case basis.
The reference to unproven facts is
thus limited to those disputed
factual depositions either in
support of or in opposition to
this instant application for
stay of execution, which the
party on whom the evidentiary
burden rests fails to discharge
and is consequently unable to
avoid losing the application.
Thus for example, if it is
alleged per the affidavit
evidence that a party is facing
criminal charges in a court of
competent jurisdiction, what
would qualify this as an
unproven fact is not the fact
that the person had not yet been
tried, found guilty and
convicted. Notwithstanding the
clearly well-known entrenched
constitutional principle that a
person is deemed innocent until
proven guilty, what would
qualify the fact alleged,
namely, that the party is facing
criminal charges as unproven, is
where the fact alleged is denied
and the party asserting it fails
to provide sufficient evidence
in proof of the disputed fact.
Similarly, where as in this
instant case, it was alleged
that the applicants were at the
material time facing contempt
proceedings, the court was not
entitled to demand proof of
their conviction. The essential
matter for the learned justices
of appeal was the fact that the
assertion was neither disputed
nor challenged and consequently
that it was proven. In the
context of this case, the matter
alleged to be “unproved” was, on
the contrary, from the available
affidavit evidence proved. The
court below rightly judged the
application on the basis of the
evidence before them.
This analysis settles the issue of
whether or not the appellant’s
deposition that the applicants
were indeed at the date of the
hearing of the application
facing contempt proceedings was
in fact proven and a fortiori,
whether the court relied on
extraneous matters to judge the
appealed decision, his
subsequent acquittal
notwithstanding. The available
evidence conclusively proved the
essential fact, and hence no
unproven or extraneous matters
influenced the decision. It
bears emphasis that if the
appellants truly believe that
they are now by their subsequent
acquittal, entitled to a reverse
order, which evidence was
unavailable at the date of the
hearing of the application for
stay, it certainly cannot be
obtained through this appeal
process in this present form. In
the result, we find no merit in
this appeal on dismiss same. On
both procedural and substantive
grounds this appeal fails.
(SGD) G. T. WOOD (MRS.)
(CHIEF JUSTICE)
(SGD)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
(SGD)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME
COURT)
(SGD) ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
(SGD) A. A.
BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL
BABA AVIO FOR THE APPELLANTS
NANA OFFEI DJAN FOR THE RESPONDENTS
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