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Land -
Recovery of possession - Damages
for trespass – Stay of Execution
- Judicial discretion. -
Whether or not the Court of
Appeal erred in granting the
application for Stay of
Execution – Whether or not the
granting the application amount
to a wrongful exercise of
judicial discretion -
HEADNOTES
Plaintiff-Appellant (Plaintiff)
and Defendant-Respondent
(Defendant) are both engaged in
the business of waste
management. On 13 October 2008,
Plaintiff entered an agreement
with the Accra Metropolitan
Assembly (AMA), under which the
Plaintiff was to pre-finance the
construction of a refuse
disposal facility at the disused
stone quarry located at Sarbah,
North-West of Oblogo, and
operate the pit for a period of
3 years, subject to renewal. the
Plaintiff obtained an
Environmental Permit from the
Environmental Protection Agency
(EPA) for the construction and
operation of the pit, and
proceeded to do so. Meanwhile,,
Defendant negotiated with
members of the Gbawe Kwartei
family, who claimed onwnership
of the said land, and,paid for
the right to use the pit for a
period of 99 years, the Kwartei
family granted the Defendant
access and right of entry to the
land. Defendant entered the
Sarbah landfill with police
personnel and vehicles, and
removed Plaintiff’s workmen,
servants and agents on the
Sarbah pit, leading to the
present dispute. Both sides
sought a declaration of their
exclusive right to enter and
operate the pit, an order for
recovery of possession of land,
a perpetual injunction
restraining the other party from
entering and dumping refuse in
the pit, and damages. While the
High Court initially granted an
interlocutory injunction
restraining both parties from
using the pit until the final
determination of the suit the
Plaintiff and concerns for
public health caused the High
Court to revise the
interlocutory injunction to
allow the Plaintiff alone to use
the pit as a commercial dumping
site until it became full with
refuse and was closed the High
Court entered judgment in favor
of the Defendant. The Court
ordered the Plaintiff to vacate
the site and to pay: special
damages the Court of Appeal
granted a Stay of Execution on
the judgment of the High Court,
pending the Plaintiff’s appeal,
on the condition that it pays
50% of the judgment debt to the
Court within 30 days The
Plaintiff appeals against the
Stay awarded by the Court of
Appeal, on the basis that the
conditions imposed were onerous
and therefore amounted to a
wrongful exercise of judicial
discretion
HELD
It is our
considered opinion that the
Court of Appeal’s order was
reasonable as it relates to only
50% of the judgment debt; and,
especially where it was further
ordered that the Registrar
invest the amount paid in a good
interest-yielding bond.
Therefore it cannot be the case
that if the Plaintiff won the
appeal, the judgment of the
Court of Appeal would be
rendered nugatory. The appeal
lacks merit and is therefore
dismissed.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Joseph v.
Jebeile [1963] 1GLR 387, SC
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
SOPHIA
ADINYIRA (MRS.) JSC
COUNSEL
OSAFO BUABENG
ESQ. WITH HIM RICHARD BOBISON
AND ANDREW MERCER FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
TONY LITUR
ESQ. WITH HIM KOFI SOMUAH FOR
THE DEFENDANT
/RESPONDENT/RESPONDENT.
___________________________________________________________________________________________
JUDGMENT
____________________________________________________________________________________________
SOPHIA
ADINYIRA (MRS.) JSC (PRESIDING):
Facts
Plaintiff-Appellant (Plaintiff)
and Defendant-Respondent
(Defendant) are both engaged in
the business of waste
management. On 13 October 2008,
Plaintiff entered an agreement
with the Accra Metropolitan
Assembly (AMA), under which the
Plaintiff was to pre-finance the
construction of a refuse
disposal facility at the disused
stone quarry located at Sarbah,
North-West of Oblogo, and
operate the pit for a period of
3 years, subject to renewal. On
15 October 2008, the Plaintiff
obtained an Environmental Permit
(No. 2004) from the
Environmental Protection Agency
(EPA) for the construction and
operation of the pit, and
proceeded to do so.
Meanwhile, on
23 February 2009, Defendant
negotiated with members of the
Gbawe Kwartei family, which said
that the land belonged to them,
and paid GHC 200,000, a cow, a
sheep and assorted drinks, for
the right to use the pit for a
period of 99 years. On 25
February 2009, the Kwartei
family granted the Defendant
access and right of entry to the
land.
On 3 December
2009, Defendant entered the
Sarbah landfill with police
personnel and vehicles, and
removed Plaintiff’s workmen,
servants and agents on the
Sarbah pit, leading to the
present dispute. Both sides
sought a declaration of their
exclusive right to enter and
operate the pit, an order for
recovery of possession of land,
a perpetual injunction
restraining the other party from
entering and dumping refuse in
the pit, and damages.
At the time
the action was commenced, the
Sarbah pit was empty. While the
High Court initially granted an
interlocutory injunction
restraining both parties from
using the pit until the final
determination of the suit, new
evidence submitted by the
Plaintiff and concerns for
public health caused the High
Court to revise the
interlocutory injunction to
allow the Plaintiff alone to use
the pit. The Plaintiff alone
operated the Sarbah pit as a
commercial dumping site until
June 2012, when it became full
with refuse and was closed.
On April 9,
2013, the High Court entered
judgment in favor of the
Defendant. The Court ordered the
Plaintiff to vacate the site and
to pay: (1) special damages of
GHC 17,581,010 with interest,
(2) Gh 20,000 in damages for
trespass, and (3) GHC 20,000 in
costs. The Plaintiff’s appeal
against the judgment is pending.
On May 20,
2013, the Court of Appeal
granted a Stay of Execution on
the judgment of the High Court,
pending the Plaintiff’s appeal,
on the condition that it pays
50% of the judgment debt to the
Court within 30 days, to be
invested by the Registrar in a
good interest-yielding bond.
The
Plaintiff appeals against the
Stay awarded by the Court of
Appeal, on the basis that the
conditions imposed were onerous
and therefore amounted to a
wrongful exercise of judicial
discretion.
Grounds of
Appeal
1.
The
Court of Appeal erred in not
carefully evaluating the
evidence and the judgment of the
trial court.
2.
The
Court of Appeal erred in
granting the application for
Stay of Execution on such
onerous terms as to amount to a
refusal of the application.
3.
The
Court of Appeal failed to give
due consideration to the
principles governing
applications for stay of
execution.
4.
The
Court of Appeal erred in not
considering the obvious
hardship, which will fall on the
plaintiff if it was unable to
comply with the onerous terms
imposed as a condition for the
grant of the application for
Stay of Execution.
Submissions
of Plaintiff
The Plaintiff
submits the Court of Appeal
erred in granting the
application for Stay of
Execution on such onerous terms
as to amount to a refusal of the
application. The execution of
this order has the potential of
affecting the very survival of
the plaintiff. The plaintiff
submits further that the
substantive appeal raises
arguable points of law on the
issues of liability of the
plaintiff and the quantum of
special damages. The Plaintiff
therefore argues that it will
only be fair for both sides that
a stay should be ordered. The
Plaintiff finally contends that
it will suffer greater hardship
than the Defendant if the appeal
is denied.
Submissions
of Defendant
The Defendant
submits that the Court of
Appeal’s ruling was reasonable
and not onerous. The Defendant
further submits that
Plaintiff-Appellant’s appeal has
no chance of success. Finally
the Defendant contends the
application is only an attempt
by the Plaintiff to delay or
prevent the Defendant from
reaping the fruits of its
judgment.
Consideration
The only
issue worthy of consideration in
this appeal is whether the
conditions imposed on the grant
of stay of execution were
onerous, and amount to a
wrongful exercise of judicial
discretion.
It is the
jurisprudence of this Supreme
Court that an order of payment
of the whole or a portion of a
judgment debt into court,
pending an appeal, is a
reasonable order and a lawful
exercise of judicial discretion.
We recall the oft cited case of
Joseph v. Jebeile [1963] 1GLR
387, SC where this Supreme
Court, held at 390, that:
“Generally
speaking, it is not our view
that the policy of the law in
this country should be against
staying execution pending appeal
especially where large sums of
money are involved and we would
urge that when execution is
stayed it should, where the
circumstances permit, be on the
condition that the
judgment-debtor pay into court
the amount of money involved,
or, when refused, on the
condition that the
judgment-creditor give security
as aforesaid and approved by the
judge.”
It is our
considered opinion that the
Court of Appeal’s order was
reasonable as it relates to only
50% of the judgment debt; and,
especially where it was further
ordered that the Registrar
invest the amount paid in a good
interest-yielding bond.
Therefore it cannot be the case
that if the Plaintiff won the
appeal, the judgment of the
Court of Appeal would be
rendered nugatory.
The appeal
lacks merit and is therefore
dismissed.
(SGD) S. O. A.
ADINYIRA(MRS)
JUSTICE OF THE SUPREME
COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD)
V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME
COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
OSAFO BUABENG
ESQ. WITH HIM RICHARD BOBISON
AND ANDREW MERCER FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
TONY LITUR
ESQ. WITH HIM KOFI SOMUAH FOR
THE DEFENDANT
/RESPONDENT/RESPONDENT.
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