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Land – Ownership - State
compulsorily acquired –
Compensation – Perpetual
injunction – Stay of execution
pending Appeal - Whether or not
the La Stool is the original
allodial owner of the land in
dispute and the Defendant family
is the original usufructuary
owner of the land in dispute -
Whether or not the government
should pay compensation on the
land in dispute with interest
from the day of acquisition to
the date of final payment -
Whether or not the consequential
orders made by the first
appellate court are contrary to
statute, particularly provisions
of the Public Lands Ordinance,
1876 (Cap134)
Rule 32 of the Court of Appeal
Rules C.I. 19 (as amended)
HEADNOTES
The Plaintiffs/Respondents in
this application instituted an
action in the High Court,
Lands
Division Accra against the named
Defendants in the title of this
case in respect of some parcels
of land situate at East Legon.
The subject parcels of land
form part of a track of land the
State
compulsorily acquired in
1944. The 4th & 5th
Defendants/Respondents had
maintained that by a judgment of
the Supreme Court of the Gold
Coast dated 28th
February 1947, they were to
receive eight thousand five
hundred and forty Pounds (8,540)
as
compensation for the
compulsory acquisition, however,
the state failed to pay them.
They therefore put up a counter
claim seeking the following
reliefs: A declaration that
the La
Stool is the original allodial
owner of the land in dispute and
the 5th Defendant
family is the original
usufructuary owner of the land
in dispute. An order that
the
government pays the 4th
and 5th
Defendants/Respondents
compensation on the land in
dispute with interest from the
day of acquisition to the date
of final payment.
Perpetual
injunction restraining the
Plaintiffs/Respondents their
families, assigns, agents,
servants, or any person or
bodies claiming through them
from further development or
interference with the land in
dispute. The trial High Court in
its judgment dated 22nd
February 2017 dismissed the
Plaintiffs’ claims but granted
the 4th and 5th
Respondents’ counter-claim
ordering the Applicant herein to
pay the 4th and 5th
Respondents the compensation
adjudged by the Supreme Court of
the Gold Coast plus interest at
the prevailing bank rate at
simple interest from the day of
the acquisition to the date of
final payment. The applicant
dissatisfied with this decision
appealed to the Court of Appeal.
The Court of Appeal in its
majority decision dismissed the
appeal. the Respondents opposing
the application, their relevant
response to the above grounds
are that the application has
been brought in bad faith and
that the applicant failed to
demonstrate any exceptional
grounds to warrant a stay of
execution of the subject
judgment.
HELD
The Applicant in our opinion has
successfully demonstrated
exceptional circumstances that
warrant the grant of the
application. The application is
hereby granted accordingly. The
execution of the judgment of the
Court of Appeal, dated 28th
of November 2019 is hereby
stayed pending the determination
of the appeal before this court.
In the interest of
fairness, we further order that
the processing of any
transaction or documents in
respect of the area in dispute
be suspended by the applicant
pending the final determination
of the appeal
STATUTES REFERRED TO IN JUDGMENT
Public Lands Ordinance, 1876
(Cap134)
CASES REFERRED TO IN JUDGMENT
Ofosu-Addo v Graphic
Communications Group Ltd.
[2011] 1 SCGLR 355
NDK Financial Services v Yiadom
Construction & Electrical Works
[2007 – 2008] SCGLR 93
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DORDZIE (MRS.) JSC:-
COUNSEL
CARLIS APPIAH BRAKO FOR THE 2ND
DEFENDANT/ APPELLANT/ APPELLANT/
APPLICANT WITH HIM IS ROBERTA
INCOOM.
OFORI ADUENI FOR THE PLAINTIFFS/
REPONDENTS/ RESPONDENTS/
RESPONDENTS.
KWAME FOSU GYEABOUR FOR THE 4TH
& 5TH DEFENDANTS/
RESPONDENTS/
RESPONDENTS/RESPONDENTS.
______________________________________________________________________
RULING
DORDZIE (MRS.) JSC:-
BACKGROUND
The Plaintiffs/Respondents in
this application instituted an
action in the High Court, Lands
Division Accra against the named
Defendants in the title of this
case in respect of some parcels
of land situate at East Legon.
The subject parcels of land
form part of a track of land the
State compulsorily acquired in
1944. The 4th & 5th
Defendants/Respondents had
maintained that by a judgment of
the Supreme Court of the Gold
Coast dated 28th
February 1947, they were to
receive eight thousand five
hundred and forty Pounds (8,540)
as compensation for the
compulsory acquisition, however,
the state failed to pay them.
They therefore put up a counter
claim seeking the following
reliefs:
a) A declaration that the La
Stool is the original allodial
owner of the land in dispute and
the 5th Defendant
family is the original
usufructuary owner of the land
in dispute.
b) An order that the government
pays the 4th and 5th
Defendants/Respondents
compensation on the land in
dispute with interest from the
day of acquisition to the date
of final payment.
c) Perpetual injunction
restraining the
Plaintiffs/Respondents their
families, assigns, agents,
servants, or any person or
bodies claiming through them
from further development or
interference with the land in
dispute.
The trial High Court in its
judgment dated 22nd
February 2017 dismissed the
Plaintiffs’ claims but granted
the 4th and 5th
Respondents’ counter-claim
ordering the Applicant herein to
pay the 4th and 5th
Respondents the compensation
adjudged by the Supreme Court of
the Gold Coast plus interest at
the prevailing bank rate at
simple interest from the day of
the acquisition to the date of
final payment.
The applicant dissatisfied with
this decision appealed to the
Court of Appeal. The Court of
Appeal in its majority decision
dismissed the appeal;
it however found the High
Court’s order for payment of
compensation to the 4th
and 5th Respondents,
(in its words) ‘unreasonable and
unjustifiable’. It therefore
substituted the High Court’s
orders with the following
consequential orders: “
consequently since the leases
granted by the appellant are for
both residential and commercial
purposes, we hold that all
remaining undeveloped parcels of
land and those being occupied or
developed by the 3rd
and 4th Respondents,
(that is the 4th and
5th Respondents in
this application) their
subjects, agents, privies or
grantees for similar purposes,
which fall within the area of
the 3rd and 4th
respondents’ interest (as
properly delineated in the site
plan Exhibit 4D5 at page 188 of
volume 3 of the record of
appeal) be insulated from any
control or interference(s)
whatsoever by the appellant. To
give effect to this direction
and in the exercise of our power
pursuant to
Rule 32
of the Court of Appeal Rules
C.I. 19 (as amended) we
hereby order a perpetual
injunction against the appellant
restraining it from any
interference with those parcels
of land falling within the area
verified by exhibit 4D5
aforementioned.”
The Applicant herein has
appealed against the above
decision of the Court of Appeal
to this court. In this
application the applicant, the
Lands Commission is praying for
an order
staying the execution of the
orders of the Court of Appeal
pending the hearing of the
appeal before this Court.
The grounds for the application
mainly are that:
a)
The appeal has a good chance of
success because some findings
made by the Court of Appeal are
at variance with evidence on
record. Furthermore
the
consequential orders made by the
first appellate court are
contrary to statute,
particularly provisions of the
Public Lands Ordinance, 1876
(Cap134)
b)
The applicant has discovered
additional evidence of
compensation payment to the La
Stool, the 4th
respondent in respect of the
1944 acquisition; the applicant
had obtained leave from this
court on the 15th of
December 2020 to adduce the said
evidence in support of the
appeal
c)
There are special circumstances
the court must consider in
determining the application,
some of which are that i) The 4th
and 5th defendants
respondents are executing the
orders of the first appellate
court, breaking down fence walls
and forcibly taking possession
of parcels of land belonging to
the applicant’s prior
registered grantees. Pictures of
the destruction have been
exhibited with the application
as exhibit LC 10. ii) These
activities of the 4th
and 5th Defendants
respondents are aimed at selling
off the parcels of land they are
forcefully taking possession of.
The success of the appeal would
therefore be rendered nugatory
if this court fails to grant the
application.
From the affidavit of
the
Respondents opposing the
application, their relevant
response to the above grounds
are that the application has
been brought in bad faith and
that the applicant failed to
demonstrate any exceptional
grounds to warrant a stay of
execution of the subject
judgment.
The refusal or granting of an
application for stay of
execution is at the discretion
of the court. However there are
settled principles that guide
the court in exercising its
discretion. These principles
have been emphasized in many
decisions of this court. It has
also been the position of this
court that the settled
principles need not to be
followed in a straightjacket
manner but the circumstances of
each case ought to determine how
the principles are applied.
In the case
of
Ofosu-Addo v Graphic
Communications Group Ltd.
[2011] 1 SCGLR 355
this court per Gbadegbe JSC sums
it up this way “although
an application for stay of
execution pending appeal may be
granted in the discretion of a
Court when the judgment on which
it is based is shown by the
applicant at the hearing to
suffer from an erroneous
statement of law or that a
refusal would occasion
irreparable harm or
inconvenience to the applicant
these are not the only reasons
for which a court may make a
grant. The Court in granting or
refusing an application for stay
of execution pending the
determination of an appeal acts
according to well settled
principles that enables it to
bridge the gap in the
intervening period between the
delivery of the judgment in the
court below and the time that
the appeal is finally determined
in order to deal with the rights
of the parties in the pending
appeal by the grant of interim
or provisional remedies, which
among others ensure that a
successful appeal is not
rendered nugatory by the making
of orders such as that in
respect of which the instant
proceedings was launched by the
Plaintiff.”
That the court in such
applications tries to hold even
the rights of the parties in the
waiting period of the appeal
cast the duty on the court to
consider each case in its
peculiar circumstances.
This court’s decision in the
case of
NDK Financial Services v
Yiadom Construction & Electrical
Works [2007 – 2008] SCGLR 93
spelt out some of the
principles and held as follows:
“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 were to be enforced and
the appeal was successful. In
effect, the essential point in
considering such applications
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.”
From the affidavit evidence
before us the applicant has
demonstrated that:
a) There are arguable points of
law to be considered in the
appeal.
b) The 4th and 5th
Defendants/Respondents are
forcibly destroying fence walls
of State grantees and taking
over duly registered plots of
land. That the applicant would
not be returned to the status
quo ante if the appeal succeeds
is very obvious. Not only that
but the activities of the
respondents, breaking into
undeveloped plots of land and
dispossessing registered owners
of the land are likely to brew
unwarranted litigation which
would create hardship for the
appellant and its grantees.
c) The Applicant has further
demonstrated that this court has
given it leave to adduce fresh
evidence on payments made by the
State to the 4th
Defendant/Respondent. The basis
of the 4th and 5th
Defendants/Respondents’ counter
claim which has resulted in the
judgment on appeal is that the
State had not paid them
compensation for the 1944
compulsory acquisition of their
land. The applicant armed with
leave to adduce fresh evidence
to prove otherwise justifies the
grant of the application.
The Applicant in our opinion has
successfully demonstrated
exceptional circumstances that
warrant the grant of the
application. The application is
hereby granted accordingly. The
execution of the judgment of the
Court of Appeal, dated 28th
of November 2019 is hereby
stayed pending the determination
of the appeal before this court.
In the interest of fairness, we
further order that the
processing of any transaction or
documents in respect of the area
in dispute be suspended by the
applicant pending the final
determination of the appeal
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF THE SUPREME COURT)
V.
J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
PROF. H. J.
A. N. MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
E. YONNY
KULENDI
(JUSTICE OF THE SUPREME COURT)
COUNSEL
CARLIS APPIAH BRAKO FOR THE 2ND
DEFENDANT/ APPELLANT/ APPELLANT/
APPLICANT WITH HIM IS ROBERTA
INCOOM.
OFORI ADUENI FOR THE PLAINTIFFS/
REPONDENTS/ RESPONDENTS/
RESPONDENTS.
KWAME FOSU GYEABOUR FOR THE 4TH
& 5TH DEFENDANTS/
RESPONDENTS/ RESPONDENTS/
RESPONDENTS.
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