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J U D G M E N T.
ANIN YEBOAH, J.S.C.
On the 11/05/2011 we dismissed
the appeal and reserved our
reasons for so doing. We proceed
to give our reasons.
The appellants herein pray this
court for an order staying
execution of the judgment of the
High Court, Accra dated the
20/04/2009.
Both appellants were senior
officers of the second defendant
company. The company was sued
by Rana Motors and Metal Works
Engineering Company Limited.
Rana Motors were adjudged to
recover an amount of money from
the company as judgment debt.
It proceeded to levy execution
by fi.fa against the second
defendant company by attaching
two houses at Tema described as
Hse. № 17 and 24 all at
Community 3, Tema, to sell to
satisfy the judgment debt. The
two houses were indeed sold to
BBC Industrials Co. (Ghana)
Limited at a public auction.
The appellants claimed that at
the time the houses were sold
they were the occupants. It was
also the case of the appellants
that at the time the house was
sold the respondent herein as
the purchaser made no
investigations as to the
interests of the appellants.
However, subsequent to the
purchase, the respondents wrote
to the appellants informing them
of the purchase and demanded
vacant possession of the two
properties. The appellants
refused to give vacant
possession.
The appellants commenced action
against the respondent claiming
several reliefs which were
endorsed on the writ of Summons.
In the affidavit of Livingstone
Djokoto, the first appellant
herein, it was deposed to that
even though the legal title to
the two properties were in the
name of the City Express Bus
Services Limited, the appellants
were the beneficial owners and
each of the appellants occupied
his house as owner in his own
right.
The High Court, Accra, dismissed
the claim of the appellants and
entered judgment for the
respondents on its
counterclaim. Being
dissatisfied with the High
court’s judgment, the appellants
lodged an appeal to the Court of
Appeal. They applied for stay
of execution of the judgment at
the High court but same was
refused.
The appellants repeated the
application for stay of
execution at the Court of Appeal
which also dismissed same on
27/10/2009 on the simple grounds
that no exceptional
circumstances existed to warrant
a stay of execution. The
appellants felt aggrieved by the
ruling of the Court of Appeal
and have appealed to this court
against the Court of Appeal’s
order refusing the stay of
execution.
The Court of Appeal in a short
ruling said as follows”
“BY COURT:
Having heard Mr. Ahenkorah in
support of the application and
having read the affidavits in
opposition and the judgment of
the trial court, we are of the
view that no exceptional
circumstances have been shown by
the
plaintiffs/appellants/applicants
to warrant a grant of a stay of
execution in this matter.
In the circumstances, the
application is refused”
In our respectful opinion, it
appears Their Lordships of the
Court of Appeal did not consider
the application in detail even
though the necessary material
being the judgment of the trial
court and the affidavits were
placed before them. As this is
an appeal, it is our duty to
consider the merits of the
appeal in detail with the same
material which was placed before
the Court of Appeal.
The appeal before us was argued
on several grounds. All the
grounds argued in support of the
allowance of the appeal seek to
attack the discretion exercised
in favour of the respondent in
refusing the application.
The settled principles governing
applications for stay of
execution have been clearly
stated in the recent decision of
this court in the case of NDK
FINANCIAL SERVICES V YIADOM
CONSTRUCTION & ELECTRICAL WORKS
& OTHERS [2007-2008] SCGLR
93. The principles are stated
in holding (1) of the case as
follows:
1.
The principles for considering
an application for stay of
execution pending appeal were
well – settled: the main
principle adopted by the courts
was what the position of the
appellant would be if the
judgment was to be enforced and
the appeal was successful. In
effect, the essential point in
considering such application was
whether the applicant would be
returned to the status quo ante
should the appeal succeed.
Another determining principle
was which of the parties would
suffer greater hardship should
the application be granted or
refused”
We are however of the opinion
that in applying these
principles, each case must be
determined on its own merits.
This court in deciding this
appeal should not determine any
issue that may prejudice the
substantive appeal which is
still pending.
In determining the first
principle, the court must
examine the judgment appealed
against to find out whether the
appeal discloses arguable points
of law. This was the view that
Court of Appeal took in the case
of DZOBO v AGBEBLEWU & ORS
[1991] 294. In this appeal
before us, their Lordships at
the Court of Appeal with due
respect did not consider this
principle of law. In examining
the judgment of the court in
detail it appears that the
appellants did not demonstrate
that they had any legal or
equitable interest in the
subject matter of this appeal.
The learned trial judge after
evaluating the facts concluded
against them that they had no
interest in the properties, be
it legal or equitable.
According to the trial judge,
the evidence led did not
establish any resulting trust in
their favour.
From a careful perusal of the
grounds of appeal, it is clear
that the appellants are seeking
to attack the ruling of the
Court of Appeal as if it heard
the substantive appeal. The
appeal before this court is
against the discretion exercised
by the Court of Appeal in
refusing to stay execution of
the judgment of the trial High
Court. Of all the grounds that
was of substance appears to be
ground (ii) which states as
follows:
(ii) The Court of Appeal erred
in not allowing itself to be
influenced by the obvious
greater hardship that would be
caused by refusing the
application and thereby causing
the applicants and their
families to lose their
possession pending the appeal.
In deciding applications for
stay of execution, both trial
court and an appellate court
must carefully examine the
judgment appealed against it and
the orders or decrees sought to
be executed to consider whether
the appeal would not be rendered
nugatory should the court
refuses it and the appellant
wins on appeal. Even though the
Court of Appeal did not discuss
this point , we have not
discovered any circumstances
that show that the appeal would
be rendered nugatory should the
appeal be dismissed.
Secondly, the court must also
consider the exceptional
circumstances which depend on
the nature of the case. The
appellants must demonstrate that
the appeal discloses arguable
points of law to be decided by
the appellate court. The burden
is this on the appellants in
this appeal before us.
In this appeal, it was not urged
on us that the Court of Appeal
failed in its duty to apply the
basic principles governing
applications for stay of
execution. If the evidence
exist that due consideration was
not given to the basic
principles enumerated above this
court on the authority of
APPIAH V PASTOR PARYEY-ADJEI
[2007-2008] SCCLR 863 will
intervene on the grounds that
the order refusing the stay of
execution was in error as the
discretion was not exercised by
taking into consideration all
the circumstances of the case.
This court may in appropriate
cases grant stay where balance
of hardship will fall on the
appellant. However, learned
counsel for the appellants
failed to demonstrate that the
Court of Appeal did not exercise
its discretion fairly in
refusing the application. As
this appeal is against the
discretion exercised by the
Court of Appeal, the appellants
ought to have demonstrated that
the discretion was unfairly
exercised against them.
The appellants have also not
demonstrated any serious point
of law apparent in the judgment
to merit our further
consideration of this appeal
even though the court is not
hearing the substantive appeal
on its merits.
We are of the view that the
discretion exercised by the
Court of Appeal was in order.
In the circumstance we
accordingly dismiss the appeal.
[SGD]
ANIN
YEBOAH
JUSTICE OF THE SUPREME
COURT
[SGD] G. T. WOOD
[MRS.]
CHIEF JUSTICE
[SGD] S. A.
BROBBEY
JUSTICE OF
THE SUPREME COURT
[SGD] J.
V. M DOTSE
JUSTICE OF THE
SUPREME COURT
[SGD]
B. T. ARYEETEY
JUSTICE OF THE SUPREME
COURT
COUNSEL;
JAMES AHENKORAH FOR THE
APPELLANTS.
AKOTO AMPEW FOR THE RESPONDENTS.
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