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N. B. LANDMARK LIMITED v. KISHINI LAKHANI [21/02/01] CA 1/2000.

IN THE SUPERIOR COURT OF JUDICATURE

THE SUPREME COURT, ACCRA.

______________________________

CORAM:   AMPIAH, JSC  (PRESIDING)

KPEGAH, JSC

ADJABENG, JSC

ACQUAH, JSC

ATUGUBA, JSC

N.B. LANDMARK LIMITED                ...             PLAINTIFF/RESPONDENT/APPELLANT

        VRS:

KISHINI LAKHANI                               ...            DEFENDANT/RESPONDENT/RESPONDENT

________________________________________________________________________________________

 

JUDGMENT

ACQUAH, JSC:

This is an appeal against the decision of the Court of Appeal granting a stay of execution of the ruling of the Circuit Court, Accra dated 24th September, 1998. This ruling of the Circuit Court refused an application to set aside its decisions of 2nd November 1998. The grounds of appeal as set out in the Notice of Appeal are:

(a)  The Court of Appeal erred in law when stay of execution of the Circuit Court judgment was in effect granted when there was an appeal against it.

(b)  The Court erred in law when it refused to uphold that service of hearing notices on solicitors under the circumstances of this case amounted to service on the respondent.

(c)  The Court erred in law and in contravention of the constitution when it refused to be bound by its previous decision which distinguishes between judgment that could be set aside and judgment that ought to be appealed against.

(d)  The Court erred when it sustained an application for stay of execution based on appeal against the refusal of the Circuit Court to set aside its judgment when the grounds to set aside were based on misapplication of law.

(e)  The Court erred in ruling on assessment of rent when the issue was not before it.

(f)  Further grounds of appeal would be filed upon receipt of the records of proceedings.

No further grounds of appeal were filed.

The brief facts are that the plaintiff issued a writ of summons at the Circuit Court, Accra against the defendant for

(a) Recovery of Possession and/or ejection order in respect of shop No. 1 & 2, Property No. D684/4 Knutsford Avenue Accra.

(b)  Mesne profit from November 1997

On 2nd November 1998, the Circuit Court entered judgment for the plaintiff against the defendant, who though served, did not attend the hearing. The Court in its judgment ordered the defendant to vacate and yield up vacant possession of the premises to the plaintiff, and adjourned proceedings to the 24th November 1998 for the assessment of economic rent to be paid by the defendant from November 1997 up to the date of judgment.

The defendant moved the Circuit Court to set aside this judgment but the Court refused the application. He therefore filed an appeal on 30th November 1998 to the Court of Appeal against the refusal, and followed this up with an application for stay of execution of the order refusing to set aside the judgment. The application for stay was also dismissed. He repeated the application at the Court of Appeal which granted same on 24th March, 1999 in the following language:

"We think the appellant had demonstrated she has very serious legal question to raise on appeal. We would thus allow the application subject to the applicant paying rent assessed by the Land Valuation Board effective from the date of decision of the court below".

It is this ruling which is the subject of this appeal.

In his statement of case the appellant raises in his paragraph 8 thereof, that the discretion of stay of execution has not been properly granted and that the issue of rent was not a subject matter of the appeal before the Court. And again in paragraph 11 that "the appeal before the Court of Appeal for which the stay was granted is in respect of the trial Court's refusal to set aside its judgment" and not the substantive judgment of 2nd November 1999.

In my view, by the above two submissions, the appellant challenges the propriety of the Court of Appeal's grant of stay of execution vis-à-vis the judgment in respect of which the appeal was lodged and on which the application for stay of execution was dependent.

In the respondent's statement of case, he contends that the Court of Appeal had power under Rule 31 of CI. 19 to make the interim order it did.

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. Thus in Eboe vrs Eboe (1961) GLR 432 Ollenu J, as he then was held that declaration that the defendant was a trustee did not require any person to do anything or abstain from doing anything and there was no method of executing it. Consequently there could be no application to stay the said order. Citing with approval this decision in Eboe vrs. Eboe (supra). Taylor JSC in his dissenting opinion in Mensah v. Ghana Football Association (1988-1989) 1 GLR 1 at 12 said:

"The concept of stay of execution in our law... is found on the idea that where the person against whom the order is directed is in no position to execute the judgment by the various execution processes, then a stay of execution is meaningless and logically pointless".

In the instant case the judgment in respect of which the application for stay was sought, was one refusing to set aside a default judgment. How does one go into execution in respect of such refusal order? The appeal was not in respect of the main judgment of 2nd November 1998 which ordered the defendant to give up vacant possession of the premises. A stay of execution can of course be applied to stay the substantive judgment if an appeal had been filed against it and the relevant application for stay is filed.

It is quite clear that the Court of Appeal appeared to be misled by the attractive legal submissions made against the substantive judgment of 2nd November 1998, into granting the application for stay.

Obviously, if the courts attention had been drawn to the fact that notwithstanding the attractiveness of legal submissions, the 2nd November 1998 judgment was neither the decision on appeal nor the one in respect of which the application for stay was directed, it would have considered whether the decision of 28th November 1998 refusing to set aside the judgment was capable of being stayed to warrant an application for stay of execution.

I have no doubt in my mind that the decision refusing to set aside a default judgment is incapable of being executed by any of the known processes of execution. And consequently, an application for stay of execution of such a decision cannot arise.

On this ground alone, we allow the appeal, and set aside the ruling of the Court of Appeal dated 24th March, 1999.

G.K. ACQUAH

JUSTICE OF THE SUPREME COURT

AMPIAH, JSC:

 I agree

A.K.B. AMPIAH

JUSTICE OF THE SUPREME COURT

KPEGHA, JSC:

 I agree

F.Y. KPEGAH

JUSTICE OF THE SUPREME COURT

ADJABENG, JSC:

 I agree

E.D.K. ADJABENG

JUSTICE OF THE SUPREME COURT

ATUGUBA, JSC:

I also agree

W. A. ATUGUBA

JUSTICE OF THE SUPREME COURT

COUNSEL

Sammy Addo for the Appellant

Amegatcher for Respondent with him Miss Abu Mary F. Avorkah

 

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