AMAPH V AMOABENG & ANOR (A1/01/2024) [2024] GHADC 520 (14 October 2024)

ABDULAIAMPAHVKOFIAMOABENG&ANOR. INTHEDISTRICTCOURTHELDATADANSIASOKWAONMONDAY, THE14THDAYOFOCTOBER,2024BEFOREHERWORSHIPLINDA FREMAHBOAMAH-OKYERE,ESQ. SUITNO.A1/01/2024 ABUSUAPANINABDULAIAMPAH---APPLICANT V 1. KOFIAMOABENG 2.AKUAAFRA ---RESPONDENTS RULING BACKGROUND: 1. ThePlaintiffclaimedagainsttheDefendantsasfollows: “a. An order of declaration to all that piece and parcel of land situate at a place known and called Krodadaaso (OldTown) which is the family land the Plaintiff and same has been trespassed by the Defendants measuring about two(2)acres b.Recoveryofpossession c.Generaldamages Page1of9 ABDULAIAMPAHVKOFIAMOABENG&ANOR. d. Perpetual injunction to restrain the Defendant from further trespassory act alienation developing the disputed land by the Defendant himself his manner of persons wo claims title through the Defendants until the final determinationoftheinstantsuit e.Cost” 2. Aftertrial,thecourtenteredjudgment onthe12thdayofAugust,2024 against the Judgment Debtor/Applicant and his suit was dismissed. Costs of GHC.5,000.00 was awarded in favour of the Judgment Creditors/Respondents. On 23rd August, 2024, the Plaintiff caused his lawyertofileaNoticeofAppealonthefollowinggrounds: “a. Whether the judgment is against the weight of evidence adduced at the trialcourt b. Additional grounds of appeal will be urged upon receipt of Record of Proceedings” 3. On 2nd September, 2024, the Judgment Creditors/Respondents filed a formal decree subsequent to which the instant application was brought by the Judgment debtor/Applicant on 19th September, 2024. The application was served on the Respondents on 20th September, 2024. On 24th September, 2024 when the application was to be heard, Page2of9 ABDULAIAMPAHVKOFIAMOABENG&ANOR. the Respondents had not filed an affidavit in opposition. They explained that their inability to do so was due to the holiday on 23rd September, 2024. They were therefore granted leave to file their affidavit in opposition and the matter was adjourned to 9th October, 2024. On the said date, the Respondents had still not filed their affidavit in opposition, however, they had engaged Counsel who had filedanoticeofappointmentofsolicitoron26thSeptember,2024.Even thoughthematterwastobeheardon9thOctober,Counseldidnotfile anyaffidavitinopposition. 4. On the day of the hearing of the application, the matter was called at 9.01ambutCounselforRespondentswasabsentand,still,noaffidavit in opposition had been filed. The motion was moved and adjourned forruling.Thecourtobserves thatitwas subsequentto thehearingof the application that an affidavit in opposition was filed on behalf of the Respondents at 9.35am. The Respondents were given ample opportunity so as to be heard on the application, but they failed to takeadvantageoftheseopportunities.Thesaidaffidavitinopposition was filed belatedly; the Applicant did not have the benefit of same Page3of9 ABDULAIAMPAHVKOFIAMOABENG&ANOR. andthereforethecourtwillnotconsideritinthedeterminationofthis application. 5. In support of his motion, the Applicant stated in his affidavit the following grounds based on which he urged the court to stay the executionofitsjudgment: “8. That there are errors patent on the face of the judgment which makes the instant appeal very relevant and necessary. Again the judgment does not reflecttheevidenceonrecord 9. That there are certain facts and law which if the honourable Court had considered and applied in its evaluation of evidence, judgment would have beeninuretomyadvantageorinmyfavour 10.That the Respondenthereinwillnot suffer anyhardship,loss or injuryif theinstantapplicationisgranted 11. That I am told by Counsel and very well believe same to be true that looking at the judgment I stand in a better position to over-turn the judgment of the instant court. In other words applicant has high and probablechancetosucceedinthisappeal 12. That I am further told byCounsel and verily believe same to be true that this is a proper case the honourable Court ought to exercise its discretion in Page4of9 ABDULAIAMPAHVKOFIAMOABENG&ANOR. my favour and stay the execution process that have been initiated by Respondents” 6. The law on stay of execution pending appeal has been amply dealt withbythesuperiorcourtsandsomeguidelineshavebeenlaiddown in a plethora of cases for the consideration of the courts in the determination of an application for stay of execution. In the case of Djokoto & Amissah v BBC Industrial Co. (Ghana) Ltd & City ExpressBusServicesLtd[2011]2SCGLR825thecourtstatedthat‘in deciding applications for stay of execution, both trial court and an appellate court must carefully examine the judgment appealed against it and the orders or decrees sought to be executedto consider whether the appeal would notberenderednugatoryshouldthecourtrefuseitandtheappellantwinson appeal. Secondly, the court must also consider the exceptional circumstances which depend on the nature of the case. The appellants must demonstrate that the appeal discloses arguable points of law to be decided by the appellate court.’Thecourtalsostatedthatastayofexecutionmaybegrantedin appropriate cases where the balance of hardship will fall on the appellant. Page5of9 ABDULAIAMPAHVKOFIAMOABENG&ANOR. 7. In the case of Evans Adu Mensah v Alice Arthur [2019] DLHC6814, the court enumerated the principles which should guide the court whenconsideringanapplicationforstayofexecutionasfollows: a. What would be the position of the appellant/applicant if the judgment wasenforcedandhesucceededonappeal.SeeJosephv Jebeille[1963]1GLR387,SC. b. If the court is satisfied upon any affidavit or facts proved of the conduct of the defeated party that he is bringing the appeal not bona fide to test the rightfulness of the judgment but for some collateralpurposetheapplicationforstayoughttoberefused c. A court should not stay execution unless there are exceptional circumstanceswarranting a stay because itis well established that a successful litigant should not be deprived of the fruits of his victory d. Wherethecourtissatisfiedthattheappealisfrivolousbecausethe grounds of appeal contain no merit and therefore there is no chanceofsucceedingitoughttorefuseanapplicationforstay e. Whether the grant or refusal of the application will work greater hardship on either party. See the case of Nana Kwasi Agyeman Page6of9 ABDULAIAMPAHVKOFIAMOABENG&ANOR. VII and Others v Nana Hima Dekyi XIII and Others [1982-83] GLR453-463 f. Whether or not the applicant would be returned to the status quo ante should the appeal succeed. See the case of NDK Financial Services Ltd. v Yiadom Construction and Electrical Works Ltd (2007-2008)SCGLR39 g. Whether or not a successful appeal would be rendered nugatory should the application be refused and the effect of the ruling on the applicant. See the cases of Charles Osei Bonsu v Dorothy Aboagye & Anor. (2015) 81 GMJ 25 and Djokoto & Amissah v BBCIndustrialCo.(Ghana)Ltd&Anor.(supra) 8. The instant case is a land matter, therefore, in the event where the Applicant succeeds on appeal, he would be entitled to recover his land from the Respondents. It is my humble view that the refusal of this application will in no way put the Applicant in an irredeemable position. This is because, the onlyexecutable order in the judgment is thepaymentofcoststotheRespondentsbytheApplicant. 9. It is trite learning that the decision to grant or refuse an application for stay of execution involves the exercise of judicial discretion which Page7of9 ABDULAIAMPAHVKOFIAMOABENG&ANOR. is exercised by balancing the competing legal rights of the parties in theapplication.OnthepartoftheApplicant,hesuffersnohardshipif this application is not granted. In fact, the grant of this application will notentitle him to recover the land from the Respondents. Should hesucceedonappeal,thelandwillbethereforhistaking,andhewill alsobeentitledtorecoveranycostshepaidtotheRespondentsjustas hewouldexecuteanycoststhatwouldbegrantedinhisfavourbythe appellatecourt.TheApplicant’s appeal willthereforenotberendered nugatorybytherefusalofthisapplication. 10. TheRespondents on theotherhand will suffertheloss in valueof the GHC.5,000.00 which has been awarded in their favour should this application be granted. If the Applicant succeeds on appeal, it will only be a matter of refunding the said money to the Applicant in order to restore him to the status quo ante. There is no evidence on therecordthatsuggestsorimpliesthattheRespondentsarenotinthe position to refund the money should the appeal succeed. The balance ofhardshiptiltsagainsttheRespondents. 11. For the foregoing reasons, the application for stay of execution filed on 19th September, 2024 is accordingly dismissed as there are no Page8of9 ABDULAIAMPAHVKOFIAMOABENG&ANOR. exceptionalcircumstanceswarrantingthegrantofit.Thereshallbeno orderastocosts. SGD MRS.LINDAFREMAHBOAMAH-OKYERE MAGISTRATE 14/10/2024 Page9of9