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Reasons for Judgment
Sophia A. B.
Akuffo, J.S.C.:
On 16th October 2007,
this Court unanimously allowed
the Appellant’s appeal herein
and reserved its reasons for
delivery today. The reasons for
our judgment are as follows:-
Background
The genesis of this appeal is
that, sometime in or about the
year 2002, the Respondent, who
is the Pastor of a Church known
as the Bethel Praise Ministries
International, sold to the
Appellant a piece of land
situate at McCarthy Hill, Accra.
No formal documents were
executed evidencing the sale but
the fact of the sale is not
disputed by either party. The
Appellant made a down-payment of
¢120,000,000.00, in respect of
which the Respondent issued to
him a receipt dated 8th
January 2002. According to the
Appellant, very shortly after
making the said payment, he
discovered that the Respondent
had previously sold the same
piece of land to another person,
Construction Pioneers Company
Limited. He, therefore, demanded
a refund of the said
down-payment, less
¢20,000,000.00, which he asked
the Respondent to keep. The
Respondent having failed to make
the refund as demanded, the
Appellant, issued a writ against
him in the High Court (suit No.
C1098/02) for the recovery of
the said down-payment. By a
summary judgment entered on 21st
March 2003, the court found in
favour of the Appellant on his
claim and adjudged the
Respondent liable to him in the
full amount of ¢120,000,000.00
together with interest thereon
at the prevailing bank rate,
plus costs of ¢6,000,000.00. The
Appellant, therefore, filed an
entry of judgment for the
recovery of a total sum of
¢181,500,000.00, whereupon the
Respondent herein, on April 2nd
2003 applied to the High Court
for orders of stay of execution
and payment by instalments. By
his affidavit in support of that
application, the Respondent
undertook to pay an amount of
¢40,000,000.00 by 30th
April, 2003 and settle the
remaining balance within
6months. (This affidavit is of
particular interest because, in
other paragraphs, the Respondent
herein deposed to the fact that
at the time of the purported
sale, the land was already in
the possession of a Lessee who
had promised to surrender the
lease to him, and that the said
Lessee had failed to surrender
the land and had, rather, sought
to sell the same to another
person.)
It appears that the Appellant
herein did not oppose the
application for stay and payment
by instalments and the court
granted the application on 4th
May 2003. However, as admitted
by the Respondent in an
affidavit sworn to on 18th
July 2003, the parties, after
the grant of the court’s orders,
executed certain Terms of
Settlement, dated 19th
May 2003, whereby it was agreed
that the judgment debt would be
paid in the following manner:-
a.
the
Respondent herein will pay an
amount of ¢60,000,000.00 by
Bankers’ Draft to the Appellant
on or before 31st May
2003
b.
the remaining
balance, being ¢121,500,000.00,
shall attract interest at the
rate of 35% for a period of 5
months and shall be paid in 5
equal monthly instalments by
bankers’ draft on the last
Thursday of June, July, August,
September and October 2003.
c.
In the event
of any default, the balance
outstanding at the time shall
become immediately due and
payable and the Appellant could,
with leave of the court levy
execution.
As it transpired, the Respondent
failed to make the initial
payment, whether that undertaken
in his affidavit in support of
the application or that agreed
to be paid under the Terms of
Settlement. Indeed he did not
make any payments at all until 1st
December, 2003 when he paid the
paltry amount of ¢15,000,000.00
to the Appellant’s solicitor in
partial settlement of the
judgment debt. Shortly
thereafter, the Respondent, by a
motion filed 4th
December 2003, applied to the
High Court for an order varying
the Terms of Settlement. As is
apparent from pages 21 and 25 of
the Record of Appeal, the
learned High Court Judge
dismissed the application on
grounds of jurisdiction, without
allowing the same to be moved.
Whereupon, the Respondent, filed
a notice of appeal against the
refusal and then applied for a
stay of execution pending
appeal. That application was
dismissed by the High Court on
29th January 2004.
The Respondent then repeated the
same before the Court of Appeal,
which, on 24th
February 2004 granted the
application for stay of
execution. The appeal herein is
against the Court of Appeal’s
decision granting the
Respondent’s application for
stay of execution pending
appeal.
Analysis
We have taken the trouble to
present, in some extensive
detail, the background of this
matter so as to highlight the
fact that the Respondent herein
has never appealed against the
summary judgment of the High
Court that granted the
Appellant’s claims. The appeal
that is pending before the Court
of Appeal, in respect of which
the said court granted the
Respondent’s prayer for stay of
execution, is merely against the
High Court judge’s refusal to
assume jurisdiction to vary the
terms of the settlement arrived
at by the parties. Thus,
although the Appellant in his
notice of appeal herein set up
no less than six grounds, in our
view, the fundamental ground is
that set out in ground (b)
that:-
“The Learned
Justices at the Court of Appeal
erred in ordering a stay of
execution when the ground for
appeal i.e. decline of
jurisdiction by the High Court
Judge for being functus officio
on 18/12/03 was neither an
executable nor speaking act
warranting a stay.”
As was pointed out by Acquah JSC
(as he then was) in his judgment
on behalf of the Supreme Court
in the case of N. B. Landmark
Ltd v. Lakiani, [2001-2002]
SCGLR 318, it is now trite
learning that, where an order of
a court is not capable of
execution by any known process
of the law, it is also not
capable of being stayed. In this
case, however, the High Court
did not even make any order. All
that the Learned Judge of the
High Court did was to decline
jurisdiction to deal with the
application for variation of the
Terms of Settlement, because he
was functus officio. We will not
comment on whether or not the
learned judge was correct in
declining jurisdiction, since,
as far as we are aware, the
appeal against his refusal to
hear the application is still
pending before the Court of
Appeal, although, in our view,
the applicable law on the matter
is quite clear. However, even
assuming that the Learned Judge
was wrong, it still remains
that, legally, there was and is
nothing to execute.
Consequently, the learned
justices of the Court of Appeal
fell into grievous error when
they granted the application for
stay of execution pending
appeal.
More importantly, and of the
gravest concern to this Court,
the effective outcome of the
Court of Appeal’s decision was
to grant to the Respondent
herein a stay of execution of
the judgment debt, by the back
door as it were, although, as
matters stood, there was no
valid application before it for
that purpose. The application
for stay of execution pending
appeal, which was in the same
terms as that before the High
Court, was as follows:-
“PLEASE TAKE
NOTICE that this Honourable
Court will be moved by counsel
for … an order staying
execution of the judgment debt
pending appeal….” (our emphasis)
It is quite patent from the
record that the Respondent did
not appeal and has never
appealed against the Summary
Judgment, delivered by the High
Court on 2nd March
2003, granting the Appellant’s
claims. That being the case,
there cannot be any valid basis
for the Court of Appeal to grant
any later application affecting
or relating to the execution of
the judgment debt. The appeal
that is pending in the Court of
Appeal has nothing to do with
the judgment debt, it only
relates to the High Court’s
refusal to assume jurisdiction,
nothing more. Therefore, taking
into account the nature of the
relief sought by the motion, the
jurisdiction of the Court of
Appeal had not been properly
invoked and, consequently, the
learned judges had no power to
grant the application. It is
highly doubtful that the learned
judges of the Court of Appeal
paid any particular attention to
the nature of the relief sought
in the application before them;
had they done so, we are sure
that they would have handled the
same with considerably more
circumspection than they did.
Moreover, it is also clear from
the record that this is a case
wherein the learned justices of
the Court of Appeal failed to
give due consideration to the
fundamental principles that must
normally guide the determination
of an application for stay of
execution pending appeal. Had
they done so they would have
realised that, from the facts of
the case, the applicant before
them (the Respondent herein) had
not come to them with clean
hands and the application was
brought in bad faith. He had
breached all his undertakings,
both those deposed to in his
affidavit in support of his
motion for stay of execution and
payment by instalments and those
he had agreed to under the Terms
of Settlement. Furthermore,
other than the paltry and random
sum of ¢15,000,000.00 (paid
almost 6 months after the first
instalment of 60,000,000.00 fell
due) the Respondent failed to
make any payments to defray his
debt and it is quite apparent
that he made that payment only
as a ploy because he had already
decided to bring the application
for variation. Additionally,
since the debt arose from the
Respondent’s failure or refusal
to refund payment made in
pursuance of a sale agreement on
which he could not deliver
because he had already
encumbered the land the subject
matter of the sale, the equities
were clearly not on the
Respondent’s side and, hence,
the balance of hardship fell
unduly on the Appellant.
Finally, we take the opportunity
to roundly condemn the manner in
which the Respondent has
manipulated the due processes of
the judicial system to serve his
undeserving purposes. It is bad
enough that he collected monies
for a property he knew he was
not in a position to deliver to
the Appellant; he compounded
matters by spending the money he
collected from the Appellant so
fast that within a matter of
days of receiving the
Appellant’s payment he was no
longer in a position to refund
the same to him. He has been
more than content to drag the
Appellant through this needless
litigation, and appears to be
quite unrepentant about having
wasted the Appellant’s time and
monies in this wanton manner
with vexatious processes. This
conduct is all the more
reprehensible when we take into
account the fact that the
Respondent is a Reverend
Minister. As Geoffrey Chaucer
queried (in his ‘Prologue to the
Canterbury Tales’) “If gold
rusts, what will iron do?”
Misconduct in land transactions
has become a bane in this
country which is gradually
eroding our national reputation.
When persons professing to be
men of God become participants
in this dirty game, then matters
have really come to a sorry pass
in our nation.
Conclusion
Consequently, this court having
allowed the appeal herein, the
order of the Court of Appeal
staying the execution of the
judgement debt is hereby set
aside. The Appellant may go into
execution, immediately, without
awaiting the out come of the
Respondent’s appeal before the
Court of Appeal.
Sophia
A. B. Akuffo(Miss)
Justice of the Supreme Court
S.
A. Brobbey
Justice of the Supreme Court
R. T. Aninakwah
Justice of the Supreme Court
Sophia O. A. Adinyira (Mrs.)
Justice
of the Supreme Court
S. K. Asiamah
Justice
of the Supreme Court
Counsel
Adjabeng
Akrasi for Appellant
Victor
Ocansey for Respondent |
