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Practice and procedure -
Execution - Writ of possession -
Judgment declaring ownership of
property but not decreeing
possession - Whether execution
may be levied for possession.
By a judgment of the circuit
court, Kumasi, the respondents
were granted two reliefs against
the applicants namely, a
declaration that House No 8 at
Mampong Ashanti was the Stool
House of the Sanaa Stool of
Mampong Ashanti and the official
residence of the occupant of
Sanaa stool of Mampong and that
a cocoa farm in dispute was the
property of the Sanaa stool. The
applicants appealed against the
judgment. The applicants were in
possession of the disputed house
when they were ejected by the
respondents and the keys to the
house were deposited in the High
Court, Kumasi. They applied for
a stay of execution and
injunction to restrain the
respondents from ejecting them
from the house.
Held -
Since the judgment did not grant
the respondents recovery of
possession, they had no legal
right to take over the house in
dispute. The court would
therefore grant the application
and restrain the respondents
from interfering with the
applicants’ possession of the
house. Dzotefe v Hahormene
III [1984-86] 1 GLR 305, CA
cited.
Case referred to:
Dzotefe v Hahormene III
[1984-86] 1 GLR 305, CA.
Dzotefe v Hahormene III
[1984-86] 1 GLR 289, CA.
APPLICATION for stay of
execution and injunction pending
appeal.
Afari Yeboah
for the applicants.
Kwaku Gyan
(for Totoe) for the
respondent.
ESSIEM JA.
By a judgment of the circuit
court, Kumasi, the respondents
were granted two reliefs against
the applicants namely:
“(1) A declaration that House
No. 8 at Mampong Ashanti is the
Stool House of the Sanaa stool
of Mampong Ashanti and that it
is the official residence of the
occupant of Sanaa stool of
Mampong.
(2) That a cocoa farm lying at
a place commonly known as
“Nwaadanha” and having
boundaries with the properties
of Kofi Awuah, Kofi Donkor,
Kwame Kaaso and Nwadan River is
the property of Sanaa stool of
Mampong.”
The applicants say they have
appealed against this judgment
claiming the properties in
question as their family
property. The appeal has not yet
been heard.
The evidence shows that the
applicants were in possession
before the purported execution
by the respondents.
It emerged from argument that
the keys to the house have been
deposited with the High Court,
Kumasi. It also emerged that the
said ejectment was effected
about 8 years ago.
The applicants have come to this
court to ask for a stay of
execution, an application which
is opposed by the respondents.
The respondents contend in their
affidavit in opposition that the
application is not made in good
faith, neither is it made
timeously.
It will be seen that the reliefs
granted by the court, supra,
did not include one for recovery
of possession. The respondents
have not taken steps to secure
such an order before they went
into execution.
Since the judgment did not grant
the respondents any relief for
recovery of possession, they had
no legal right to take over the
house in dispute. If they need
recovery of possession, they
have to go to court for such an
order.
The applicants seek an order of
stay of execution or injunction
restraining the plaintiff from
ejecting them from the house. As
there is no judgment for
possession, plaintiff should be
restrained from interfering with
the possession of the
applicants. We will therefore
grant the application and
restrain the respondents from
interfering with the applicants’
possession of the house.
I shall like to refer to
Dzotefe v Hahormene III
[1984-86] 1 GLR 305 at 307, per
Amua-Sekyi JA mainly to guide
counsel:
“[In] Dzotepe v Hahormene III
[1984-86] 1 GLR 289, CA the
court said per Apaloo CJ at page
292:
“... It is elementary that the
writ of possession is only
issued to enforce a judgment for
possession of land. If there is
no judgment for possession,
there plainly can be no
jurisdiction to order the
issuance of a writ of possession
... “
We entirely agree that since the
High Court did not by its
judgment decree possession in
favour of the plaintiffs, they
are not entitled to take out a
writ of possession for the
purpose of recovering possession
from the defendants.”
We shall therefore order the
registrar of the court below to
put applicants back in
possession pending the final
determination of the appeal.
(sgd) AMUAH JA.
(sgd) LUTTERODT JA.
Application granted. Registrar
ordered to put applicants back
in possession.
S Kwami Tetteh, Le |
