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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 |
