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J U D G M E N T
ANIN YEBOAH, J.S.C.:-
The Circuit Court at Tema on the
12th of December 2006
entered judgment against the
appellant herein in favour of
the Respondent herein to recover
all rent arrears and ejectment
from the house in dispute which
is H/№ 12/N2 C2 situate at Tema.
It was the case of the
respondent that he owned the
property in dispute and leased
same to the appellant for an
agreed rent. According to the
Appellant, the respondent ceased
paying rent in 1999. He
therefore commenced the action
for recovery of possession and
rent arrears.
The appellant controverted the
facts and strongly denied the
title of the respondent. He
stated among other things that
there was an agreement he
entered into with the respondent
and one Quartey Papafio to
travel abroad in exchange for
the house in dispute. He
therefore claimed that the
agreement divested the appellant
of his ownership of the house.
The learned Circuit Court judge
raised one crucial issue of who
was the owner of the property to
be resolved by him. The lease
entered between the parties
herein was tendered in evidence
as Exhibit 1 dated the
15/10/1981 was to commence on
1st October 1981. The trial
judge found as a fact that the
respondent owned the property
and accordingly entered judgment
to the respondent and made an
order for the recovery of rent
arrears with cost. Being
dissatisfied with the judgment,
the appellant lodged an appeal
to the Court of Appeal. He
filed a motion for stay of
execution at the Court of Appeal
which was refused on the
4/12/2007. He has appealed to
this court against the refusal
of the Court of Appeal with the
leave required under Article
31(1) (b) of the Constitution
1992.
In this application learned
counsel has invited this court
to grant the stay on the grounds
that both the trial court and
the Court of Appeal failed to
consider the effect of PNDCL 5
in this case. According to him
even though PNDCL 5 has been
repealed, the repeal does not
revive the rights of the
respondent and this is so under
section 8(1) of the
Interpretation Act.
Another ground which was argued
is that the Court of Appeal
failed to exercise its
discretion in his favour and
thereby refused his application
for stay of execution.
What is before this court is an
appeal against the refusal of
the Court of Appeal to grant the
motion for stay of execution.
Even though a legal point has
been raised, it should be borne
in mind that the discretion to
grant or refuse the application
was vested in the Court of
Appeal under the circumstances.
The Appellate Court which is
this court is not to substitute
its own discretion for the Court
of Appeal. It therefore behoves
the appellant to demonstrate
convincingly that the discretion
was not judiciously exercised,
to warrant our intervention. It
has been the practice that
courts do not put fetters on the
victorious party to prevent them
from reaping the grants of their
victory in legal proceedings by
granting stay of execution. It
will, however, grant a stay of
execution if the appellant
demonstrates that there are
arguable points of law to be
canvassed on appeal or that the
circumstances of the case is
such that if a stay is not
granted any allowance of the
appeal will be mandatory. See
DZOBO V AGBEBLEWU
[1991] IGLR 294 and JOSEPH
V JEBEILE [1963] IGLR
387 SC.
It has been urged on this court
that the PNDCL 5 ousted the
title of the respondent and
thereby denied him of ownership
in the property and the fact
that the appellant had been in
possession over a long period of
time, any refusal would work
serious hardship against him.
This court as an appellate court
can only intervene with the
exercise of the discretion it
could be shown that the
discretion was exercised on
wrong or inadequate material
placed before the court which
exercised the discretion or if
it could also be demonstrated
that the court gave no weight to
the relevant matters and ignored
relevant material in arriving at
its decision. If the lower
courts decision was also based
on a misunderstanding of the law
or on inferences that particular
facts existed or did not exist
when in fact evidence shows to
be wrong, this court can
interfere. See CRESNSTIL
V CRENSTIL [1962]2 GLR
171 SC, BLUNT V BLUNT
[1943] AC 517 and BALLOOS
V MENSAH [1984-86 1 GLR
724 CA.
As the appellant who has
appealed against the discretion
of the lower court has failed to
demonstrate that, the discretion
was not rightly exercised, I
will proceed to dismiss the
appeal.
ANIN YEBOAH
(JUSTICE OF THE
SUPREME COURT)
I agree
S. A. BROBBEY
( JUSTICE OF THE SUPREME COURT)
I agree
J. ANSAH
( JUSTICE OF THE SUPREME COURT)
I agree
S.
O. A. ADINYIRA (MRS)
( JUSTICE OF THE SUPREME COURT)
I agree
J. V. M. DOTSE
( JUSTICE OF THE SUPREME COURT)
COUNSEL:
OSAFO BUABENG FOR THE APPELLANT
G. R. KWAME AYEH FOR THE
RESPONDENT.
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