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Property –
Landlord and Tenant - Possession
of the premises – Recovery of
monthly rent - Mesne profits –
Costs - Stay of execution - Writ
of possession - Rule 8(1) a of
the Supreme Court rules C.I 16
HEADNOTES
The facts in
the current appeal are fairly
simple. The applicants herein
instituted an action at the High
Court claiming;
Possession of the premises
housing the Pan Africa Hotel
¢300,000
monthly rent from the
27/07/1999 up to date of service
of the
writ. Mesne profits at the
rate of ¢800,000 per month from
the date of the service writ
till delivery of possession to
the plaintiff and
Costs.
The trial High Court Judge found
for the appellants in this
action and among other things
This judgment was delivered on
22/02/2006; i.e 7 years after
the writ was issued.
Dissatisfied, the Respondents
herein, immediately filed appeal
which is still pending at the
Court of Appeal After filing of
the appeal, he also applied to
the High Court for stay of
execution pending appeal, but
same was dismissed. The
application was repeated and
granted by the Court of Appeal
which on 31/03/2008 held as
follows: .At least half of the
judgment debt should be paid as
this would not work any hardship
on the judgment debtor.…… For
this reason, the application is
granted on terms. i.e., half of
the judgment debt must be paid
while the applicant remains in
possession as he pursues his
appeal. The amount is to be paid
on or before the 15th
of May 2008.” Even though he is
yet to complete the payment so
ordered the respondents have
made substantial payments, most
of which were made after the
deadline given by the Court.
Following the failure of the
Respondent herein to beat the
deadline given by the Court of
Appeal, the appellant herein
went to the High Court which on
16/7/2008 granted them leave to
issue a writ of possession That
leave to go into execution is
still pending. However, for
reasons that are not apparent on
the face of the record, the
appellants filed another motion,
this time before the Court of
Appeal, for “leave to go into
execution of Judgment of High
Court dated 22/2/2006 and the
Court of Appeal said We are of
the view that since the
Respondent has made substantial
payment into Court, we would not
grant the application for leave
to go into execution, we dismiss
the application. We make no
order as to costs.” It
is the appellants’
dissatisfaction with this
decision of the Court of Appeal
which has culminated in this
appeal before us.
HELD
In such an
event, the court is not called
upon to view the hardships that
might flow in consequence. It
may be said that the courts
judicial vision is circumscribed
by statutory blinkers.”
The appeal is
not properly before this court
and same is dismissed
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
rules 1996 C.I 16
CASES
REFERRED TO IN JUDGMENT
The Republic
v High Court Accra; Exparte
Afoda, [2001-2002] SCGLR 768 SC
In re
Amponsah (1960) GLR140
Frimpong v
Poku 1963 GLR 1
Karletse-Panin v. Nuro [1979]GLR
195
Atta Kwadwo
v.Badu [1977] 1 GLR 1
Oomaa &
Others vrs. Fosuhene (1987-88)1
GLR244
Bansah v.
G.B. Ollivant 1954 WACA 408
Karleste-Panin case (op cit)
page 209,
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BAFFOE-BONNIE, JSC:
COUNSEL
W. L.
ANTHONIO FOR THE PLAINTIFFS/
RESPONDENTS/ APPLICANTS/
APPELLANTS
JAMES
AHENKORA FOR THE DEFENDANT/
APPELLANT/ RESPONDENT/
RESPONDENT
_________________________________________________________________
J U D G M E N
T
_________________________________________________________________
BAFFOE-BONNIE, JSC:
The facts in
the current appeal are fairly
simple. The applicants herein
instituted an action at the High
Court claiming;
(a)
Possession of
the premises housing the Pan
Africa Hotel ¢300,000 monthly
rent from the 27/07/1999 up to
date of service of the writ.
(b)
Mesne profits
at the rate of ¢800,000 per
month from the date of the
service writ till delivery of
possession to the plaintiff and
(c)
Costs.
The
trial High Court Judge found for
the appellants in this action
and among other things stated as
follows;
“It would
therefore be unconscionable to
allow the defendants to retain
possession without paying
economic rent for the premises
in favour of the plaintiff and
not grant the plaintiff vacant
possession of the premises
housing the Pan African Hotel.
I shall also allow the
plaintiffs claim for ¢800,000 as
mesne profits from the 27th
July 1999 to date. I shall
accordingly enter judgment for
the plaintiff for that sum since
that sum would in my view be a
fair rent for the said premises.
Costs of ¢20,000,000 in favour
of plaintiff”.
This
judgment was delivered on
22/02/2006; i.e 7 years after
the writ was issued.
Dissatisfied, the Respondents
herein, immediately filed appeal
which is still pending at the
Court of Appeal.
After filing of the appeal, he
also applied to the High Court
for stay of execution pending
appeal, but same was dismissed.
The application was repeated and
granted by the Court of Appeal
which on
31/03/2008 held as follows:
“……..At least half of the
judgment debt should be paid as
this would not work any hardship
on the judgment debtor.……… For
this reason, the application is
granted on terms. i.e., half of
the judgment debt must be paid
while the applicant remains in
possession as he pursues his
appeal. The amount is to be paid
on or before the 15th
of May 2008.”
Even
though he is yet to complete the
payment so ordered the
respondents have made
substantial payments, most of
which were made after the
deadline given by the Court.
Following the failure of the
Respondent herein to beat the
deadline given by the Court of
Appeal, the appellant herein
went to the High Court which on
16/7/2008 granted them leave to
issue a writ of possession.
That
leave to go into execution is
still pending. However, for
reasons that are not apparent on
the face of the record, the
appellants filed another motion,
this time before the Court of
Appeal, for “leave to go into
execution of Judgment of High
Court dated 22/2/2006 “
This
application came up for hearing
at the Court of Appeal on 7th
April 2009. For proper effect
let me quote in extenso
the proceedings of the day.
“Mr.
Antonio,(counsel for Appellant
herein): This is application
for leave to go into execution.
This court granted the
application for stay on terms.
The applicant was to pay half
of the judgment debt. They have
not fully complied with the
orders of the Court. They have
not been paying rent
Mr.
Ahenkorah: We have paid
a total of GH¢5,340.00
“By
Court: We
are of the view that since the
Respondent has made substantial
payment into Court, we would not
grant the application for leave
to go into execution, we dismiss
the application. We make no
order as to costs.”
It is the
appellants’ dissatisfaction with
this decision of the Court of
Appeal which has culminated in
this appeal before us.
Before
turning to the substance of this
appeal, I want to make a small
comment on how time in this case
has been managed so far.
This action
was instituted in November 1999
and it took seven years for
judgment to be delivered in
February 2006. Since we do not
have the full record of
proceedings before us, it cannot
easily be discerned who or what
actually caused the delay for
6-7 years. Be that as it may,
the judgment was delivered on
22/02/96 and immediately an
appeal was filed against it.
Four (4) years on, and the
appeal on the substantive suit
has not seen the light of day.
In the interim a motion for stay
of execution has been granted by
the CA after the first one was
refused by the High Court. Then
after leave to issue writ of
possession had been granted by
the High Court, the beneficiary
of the said leave strangely, did
not pursue it but chose to file
a similar process at the Court
of Appeal for the same relief.
Based on the
affidavits before them, the
learned Justices of the Court of
Appeal, in their discretion,
refused the application. And now
the appellant has carried his
fight in respect of the leave to
issue writ of possession, to
this Court.
Why the
appellant herein, is expending
his energies on nibbling at the
bones i.e. these interlocutory
matters, instead of ensuring
that the respondents herein,
pursue and conclude the appeal
on the substantive action, beats
my imagination. It is as if none
of the Counsel is interested in
the appeal, to the detriment of
the parties, especially, the
plaintiffs in this case.
GROUNDS OF
APPEAL
Against the
decision of the Court of Appeal
to disallow their application
for leave to issue writ of
possession the appellants herein
have filed two grounds of
appeal.
1.
That
their Lordships erred in law in
refusing/dismissing plaintiffs/
appellants application to be
granted leave to go into
execution of the Court of Appeal
orders dated 31/3/2008.
2.
Further grounds of appeal may be
filed on receipt of the record
of proceedings (No additional
grounds have been filed or
argued)
In his
statement of case Counsel has
submitted that the respondent
herein failed to honour the
Court’s orders by the deadline
of 15/5/2000 without any
explanation.
Citing the
case of
THE REPUBLIC V HIGH COURT
ACCRA; EXPARTE AFODA,
[2001-2002] SCGLR 768 SC,
counsel submitted that it is
the position of the law that all
orders of court of competent
jurisdiction ought to be obeyed.
Indeed it has been held that no
litigant has the right to
determine for himself whether or
not a court’s order is valid to
command his disobedience to it.
He concluded that the
consequences of the respondent
having failed or refused to obey
the lawful orders of the Court
of Appeal, was for the Court of
Appeal to have granted leave to
go into execution. Consequently
the Court of Appeal had erred in
law and this had occasioned a
miscarriage of justice and ought
to be reversed.
In his one
page statement in response,
Counsel for the respondent
submitted that, the decision to
refuse the application to go
into execution was interlocutory
and since same was given on 7th
April 2009, the rules allows
only 21 days to file an appeal
against same. By waiting till 7th
July 2009 (3 months after the
decision) to file an appeal, the
application was incompetent.
Rule 8(1) a
of the Supreme Court rules C.I
16
as
amended reads
1)
Subject to any other enactment
governing appeals, a civil
appeal shall be lodged within
(a)
twenty-one days, in the case of
an appeal against an
interlocutory decision;
(b) three
months, in the case of an appeal
against a final decision unless
the Court below or the court
extends the period within which
an appeal may be lodged.
The
appellant herein has submitted
that by the nature of the
application and the outcome of
same the appeal is sustainable
because the decision is not
interlocutory but rather final.
A
determination as to whether or
not the decision appealed from
is interlocutory or final is at
the heart of this appeal because
as has often been said no right
of appeal exists save such as is
conferred by statute.
In the case
of
In re Amponsah (1960) GLR140
the Court of appeal held
“We are
clearly of the opinion that an
appellate court has no inherent
jurisdiction to entertain an
appeal from an order or decision
given by a court below it. In
all causes or matters an appeal
lies only if given by statute.”
AkuffoAddo
JSC
(as he then was) in case of
Frimpong v Poku 1963 GLR 1
said,
“a right of
appeal is always conferred by
statute, and when the statute
conferring the right lays down
conditions precedent to the
vesting of that right in a
litigant it is essential that
those conditions must be
strictly performed otherwise the
right does not become vested”
In the
present appeal the rule that
regulates the appellate
jurisdiction of this court is
Rule 8(1) sub rules (a) and (b).
It is 21 days if interlocutory
and three months, if final.
Interestingly whilst the three
months in respect of final
judgment can be extended when
leave is sought and granted, no
such extension is countenanced
by the rule regulating
interlocutory appeals.
Was the
decision final as claimed by the
appellant herein? Without a
doubt the answer is a definite
no!
Whether a
decision is interlocutory or
final has been the subject of
several judicial decisions. In
the case of
Karletse-Panin v. Nuro [1979]GLR
195, both
Sowah and Francois JJA(as they
then were) gave insights into
how to determine whether a
decision is interlocutory. But
the simple test is whether the
decision determines the case or
still leaves certain issues to
be determined. This is how
Apaloo JA (as he then was) put
it in the case of
Atta Kwadwo v.Badu [1977] 1 GLR
1 at pg 4
“The
criterion for distinguishing a
final from an interlocutory
order has come before the courts
a number of times and the test
generally accepted is that the
judgment or order to be final
must finally dispose of the
rights of the parties”
This court in
the case of
POMAA &
OTHERS VRS. FOSUHENE (1987-88)1
GLR244 said,
“An
inference whether a decision or
order was final or interlocutory
was dependent essentially on the
nature of the decision or order
and consequently on the answer
to the question whether the
decision or order disposed of
the rights of the parties or the
matter in controversy. An
interlocutory decision did not
assume finally to dispose of the
rights of the parties. It was an
order in procedure to preserve
matters in status quo until the
rights of the parties could be
determined. The test was not to
look at the nature of the
application but at the nature of
the order made.”
In the case
of
Bansah v. G.B. Ollivant 1954
WACA 408, the court
held that,
“A judge’s
refusal to review his judgment
is an interlocutory decision and
if special leave to appeal to
appeal from the refusal has not
been obtained, the appeal from
the refusal is not properly
before the court of appeal;
therefore the Court has no power
to grant leave to amend the
notice of appeal.”
In the appeal
before us the rights of the
parties will be finally
determined by the courts
decision on the principal issues
of whether or not the appellant
herein is entitled to recovery
of possession of the premises
occupied by the respondent etc.
This is what was determined by
the trial high court judge and
is the subject of the
substantive appeal before the
Court of Appeal. Stay of
execution pending appeal, leave
to go into execution or payment
of monies pending appeal, are
all interlocutory and do not
dispose of the rights of the
parties.
Having decided that the decision
being appealed from was
interlocutory, then pursuant to
rule 8(1)(a) of C.I. 16,this
appeal having been brought
outside the statutory 21-day
period, this court’s
jurisdiction has not been
properly invoked. As Francois JA
(as then was) said in the
Karleste-Panin case
(op cit) page 209,
“In
such an event, the court is not
called upon to view the
hardships that might flow in
consequence. It may be said that
the courts judicial vision is
circumscribed by statutory
blinkers.”
The appeal is
not properly before this court
and same is dismissed.
P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
S.
A. B. AKUFFO (MS)
JUSTICE OF
THE SUPREME COURT
DR.
S. K. DATE-BAH
JUSTICE OF
THE SUPREME COURT
S.
O. A. ADNYIRA (MRS)
JUSTICE OF
THE SUPREME COURT
N. S. GBADEGBE
JUSTICE OF
THE SUPREME COURT
COUNSEL:
W. L.
ANTHONIO FOR THE PLAINTIFFS/
RESPONDENTS/ APPLICANTS/
APPELLANTS
JAMES
AHENKORA FOR THE
DEFENDANT/APPELLANT/RESPONDENT
/RESPONDENT
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