DEI – TUTU VRS. OKYERE (LD/1181/2020) [2023] GHAHC 591 (22 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ACCRA LAND COURT DIVISION ‘9’ HELD ON WEDNESDAY THE 22ND DAY OF NOVEMBER 2023 BEFORE HER LADYSHIP JUSTICE NABEELA NAEEMA WAHAB J. (MS.) SUIT NO. LD/1181/2020 EDWARD SELORM DEI – TUTU - PLAINTIF/JUDGMENT-CREDITOR/ RESPONDENT VRS HENRY ASENSO OKYERE - DEFENDANT/JUDGMENT-DEBTOR/ APPLICANT R U L I N G BACKGROUND A background of the case as provided in the judgment of the Court dated 1st March 2023 is that by an Amended Writ and Statement of Claim filed on 24th February 2021, the Plaintiff instituted the instant action for inter alia a declaration of title to a parcel of land which was the subject of the action, perpetual injunction to restrain the Defendant, his agents, assigns and privies from entering, developing and having any dealings whatsoever with the subject land, and any other orders that the Court deems fit. SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 1 of 23 The Defendant entered appearance and filed a Statement of Defence and Counterclaim by which he sought inter alia a declaration of title to the subject land stated to be situate at Shiashie in East Legon and measuring approximately 1.712 acres, recovery of possession and perpetual injunction. It was the case of the Plaintiff that he acquired the subject land by a lease dated 13th February 2018 from the lawful Attorney of Nii Aki Toboase Family of the Odoi Atsem We of La and Okponglo. The lease was for a term of fifty (50) years and a search conducted at Lands Commission revealed that his grantors are the beneficial owners of the subject land. In further support of the Plaintiff’s claim that his grantors are the owners of the subject land, the Plaintiff stated that in the decision of the Court of Appeal in the case entitled Nii Tetteh Opremreh & Another vrs Komexa Ltd and 4 others (Appeal No. HI/681/2018) dated 12th June 2019 and the decision of the Supreme Court in respect of the same case entitled The Republic vrs Court of Appeal, Ex-Parte Lands Commission, Nii Tetteh Opremreh & 2 Others (Civil Motion No. J5/21/2020), dated 18th March 2020, his grantors have been adjudged the owners of lands in Shiashie, Abotsiman and other villages within the Ayawaso West Wuogon Municipality, where the subject land is located. The Plaintiff stated that at the time of acquisition, the subject land was vacant. In early 2020, he went into possession of the land by building a fence wall around the land and constructing a four-bedroom dwelling house on same. It was the case of the Plaintiff that on 22nd June 2020, the Defendant caused portions of the fence wall and his four-bedroom house to be demolished at midnight with the assistance of the Ayawaso West Wuogon Municipal Assembly. The Plaintiff stated that the Defendant’s claim to the subject land is unjustified and his trespass had caused him hardship and inconvenience. SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 2 of 23 In his defence, the Defendant stated that before he acquired the subject land, a search he conducted at the Lands Commission dated 28th March 2013 revealed that the subject land falls within a larger area of land compulsorily acquired by the State in 1944. The Defendant however added that his exceptional diligence revealed that in Suit No. 679/93, one Nii Tetteh Opremreh II obtained judgment against the Attorney-General and the La Stool in respect of a larger area which includes the subject land and registered same under Land Title Certificate No. GA 14025, dated 7th September 1999. The Defendant also stated that Nii Tetteh Opremreh II granted the land in dispute to his grantor, Bogoso/ Gold Limited also known as Bogoso Golden Star Resources, and the company acquired a Land Title Certificate No. GA 21237. It was the case of the Defendant that he acquired the subject land from his grantor, Bogoso/ Gold Limited, by a Deed of Assignment dated 1st October 2013, however because he did not register the land in his name, the records of Lands Commission still indicated his grantor as the owner of the subject land. It was the further case of the Defendant that he was in occupation of the subject land when he read from a publication in the Daily Graphic and Ghanaian Times Newspaper that by a judgment of the Supreme Court dated 27th June 2017, the subject land had been found to be and declared State land. The Defendant stated that this was how he learnt that the subject land is not owned by Nii Tetteh Opremreh II from whom his grantor acquired the land. The Defendant added that following the decision of the Supreme Court, Lands Commission cancelled the Land Title Certificate in the name of Nii Tetteh Opremreh II and made a first offer to his grantor, Bogoso/ Gold Limited which was in possession of the subject land per its SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 3 of 23 records. By a letter dated 25th July 2018, Lands Commission requested his grantor - Bogoso/ Gold Limited to pay the appropriate fees for the land. The Defendant stated that he subsequently applied to Lands Commission and obtained a lease for the subject land dated 22nd July 2020, which was stated to commence from 1st June 2018. The lease was for a term of fifty (50) years. It was the case of the Defendant that on or about May 2020, his workmen were on the subject land developing same when the Plaintiff with the aid of land guards ejected them and began construction works on the land. In support of this claim, the Defendant stated that he lodged a complaint with the Ayawaso West Municipal Assembly who denied giving the Plaintiff any permit to develop the subject land. Following the report to the Police, the Defendant stated that the police working with the Municipal Assembly cleared the subject land of all trespassers. It was the further case of the Defendant that the judgment of the Court of Appeal in the case of Nii Tetteh Opremreh & Another vrs Komexa Ltd and 4 others (Appeal No. HI/68/2018) dated 12th June 2019 and the decision of the Supreme Court in respect of the case dated 18th March 2020, relied on by the Plaintiff in support of the ownership of the subject land by his grantors rather declared the vast parcel of land which includes the subject land as public land and the Plaintiff’s grantors therefore have no interest in the subject land to convey to him. The Defendant stated that the decision of the Court of Appeal in Nii Tetteh Opremreh & Another vrs Komexa Ltd and 4 others (Appeal No. H1/163/18) dated 28th November 2019 injuncted the Lands Commission from dealing with the remaining undeveloped parcels of land and those that were occupied or developed. The Defendant however added that the grant by Lands Commission of the subject land to him was on 1st June 2018 and before the decision of the Court of Appeal, and the injunction contained therein. SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 4 of 23 ISSUE FOR DETERMINATION DURING THE TRIAL From the background to the case as provided in the Judgment, the main issue that was to be determined during the trial was which of the Parties had a better title to the subject land. A determination of this issue called for a consideration of the decisions of the Court of Appeal in the case Nii Tetteh Opremreh & Another vrs Komexa Ltd and 4 others dated 12th June 2019, 28th November 2019 and the decision of the Supreme Court in The Republic vrs Court of Appeal, Ex- Parte Lands Commission, Nii Tetteh Opremreh & 2 Others (Civil Motion No. J5/21/2020) dated 18th March 2020 to ascertain whether or not the subject land is State land and which of the grantors of the Parties had an interest in the subject land and could convey same. In arriving at its decision, the trial judge was also called upon to determine on the basis of the evidence adduced which of the Parties was in possession of the subject land. After the trial, this Court differently constituted found and held that the judgment of the Courts relied on by the Plaintiff declared a vast parcel of land which includes the subject land as State land. The Court noted that the basis of the Defendant’s claim to the subject land was the Deed of Lease executed between the Defendant and the Lands Commission and dated 22nd July 2020. The Court found that the lease granted to the Defendant by the Lands Commission was executed when there was an injunction of the Court of Appeal restraining Lands Commission from dealing with the subject land. The Court thus held that the Deed of Lease executed between the Defendant and the Lands Commission dated 22nd July 2020 was an illegal document which does not clothe the Defendant with any right to prosecute his counterclaim. SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 5 of 23 The Court however found and held that there is evidence that the Plaintiff was in possession of the subject land before Lands Commission executed the lease in respect of same for the Defendant. The Court therefore held that until the decision of the Court of Appeal is overturned by the Apex Court and the injunction granted by the Court of Appeal is either varied or set aside, the possessory right of the Plaintiff will not be disturbed by the Court, although a declaration of title to the land could not be made in his favour. In its judgment of 1st March 2023 this Court differently constituted dismissed the Defendant’s counterclaim and gave judgment for the Plaintiff. The Court ordered that the Defendant and his agents, privies and hirelings are restrained from disturbing the Plaintiff’s quiet possession of the disputed land and awarded costs in favour of the Plaintiff against the Defendant. APPLICATION FOR STAY OF EXECUTION PENDING APPEAL Aggrieved, the Defendant/ Judgment-Debtor/ Applicant hereafter referred to as “Applicant” filed a Notice of Appeal on 14th April 2023, a copy of which is marked Exhibit B and attached to the instant application filed on 17th April 2023 seeking an order for stay of execution pending the appeal. It is the case of the Applicant that the evidence before the Court was overwhelming that the Applicant has been in possession of the subject land since the year 2013. The Applicant added that the land in dispute had already been offered by Lands of Commission in a letter dated 25th July 2018 to the Applicant’s grantor; that by a letter dated 22nd October 2018, the Applicant’s grantor informed the Lands Commission that it had divested its interest in the land to the Applicant on 1st October 2013 and requested the Lands Commission to regularize the Applicant’s title to the land. SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 6 of 23 It is therefore the case of the Applicant that the offer of Lands Commission of the subject land to him was made and accepted about two years before the judgment of the Court of Appeal in Suit No. H1/163/18 in the year 2019. It is the further case of the Applicant that the judgment of the Court of Appeal in Suit No. H1/163/18 did not affect lands already granted by the Lands Commission and for that matter did not affect the subject land. The Applicant added that the judgment of the Court of Appeal in Suit No. H1/163/18 has also been stayed and cannot be the basis of the decision of the Court in this case. For all of the above stated reasons, it is the case of the Applicant that the Appeal has a good chance of success. OPPOSITION BY THE RESPONDENT In an affidavit in opposition filed on 2nd May 2023, the Plaintiff/Judgment-Creditor/ Respondent, hereafter referred to as “Respondent” stated that he is opposed to the application for the reason that same is misconceived and devoid of any merits. Relying on all the processes filed in the suit and on record, the Respondent stated that on 1st March 2023, the Court delivered a judgment restraining the Applicant from disturbing his possession of the land in dispute and the ends of justice will be better served if the application for stay of execution pending appeal is dismissed. SUMMARY OF SUBMISSIONS IN COURT At the hearing of the application, Counsel for the Applicant rehashed the Applicant’s case as stated in the affidavit in support of the application. He stated that as the Respondent was in SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 7 of 23 possession of the subject land, he could do as he pleased with it including creating waste or alienating the subject land. Counsel for the Applicant thus submitted that the appeal which has a good chance of success would be rendered nugatory if the present application is not granted. Counsel for the Respondent stated that the judgment of the Court being challenged by the Applicant simply granted him possession of the subject land until the State which the Court found had compulsorily acquired the land recovered same from him. Counsel for the Respondent thus submitted that the grant of the present application would not serve any useful purpose. In responding on a point of law, Counsel for the Applicant stated that the submission by Counsel for Respondent was in essence a submission that the judgment of the Court was not executable. Counsel relied on the decision of the Supreme Court in the case of Mensah v Ghana Football Association and others [1989-90] 1 GLR 1 at page 12 and submitted that the Judgment by this Court differently constituted dated 1st March 2023, contained an order perpetually injuncting the Applicant and was thus executable. ISSUE RAISED FOR DETERMINATION BY THE PRESENT APPLICATION The issue raised for determination by the present application is whether or not the judgment of this Court should be stayed pending the determination of the appeal filed by the Applicant. APPLICABLE LAW Order 43 Rule 11 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47) is one of the provisions which regulates the practice for making Applications for stay of execution in the High Court. It provides thus: SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 8 of 23 Without prejudice to Order 45 rule 15, a party against whom a judgment or order has been given or made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant the relief, on such terms as it thinks just. (Emphasis added) From Order 43 Rule 11 of C. I 47, the application filed for the relief must be grounded on matters which have occurred since the judgment. MATTERS WHICH HAVE OCCURRED SINCE THE JUDGMENT In explaining the application of Order 43 Rule 11 of C. I. 47, the learned author, S. Kwami Tetteh at page 1051 of his book “CIVIL PROCEDURE, A PRACTICAL APPROACH” referred to the case of London Permanent Benefit Society v. De Buer [1968] 1 ALL ER 372 in which Plowman J. stated that the power to grant relief under Order 43 Rule 11 of C. I. 47 is to be exercised on the basis of matters that have occurred since the date of the judgment or order. In the Ruling of the Supreme Court dated 28th April, 2020 in Ogyeadom Obranu Kwesi Atta VI v. Ghana Telecommunications Co. Ltd & Anor [Civil Motion No. J8/131/2019] reported as Ghana Telecommunications Co. Ltd & Another v Atta VI [2017-2020] 1 SCGLR 1090 at page 1109, the Supreme Court speaking through Pwamang JSC also cited the case of London Permanent Benefit Society v. De Buer (supra) with approval and stated that as Plowman J. observed of Order 45 rule 11 of the English Rules on which our order 43 rule 11 is based: “The power conferred by that rule to grant relief is a power to do so, and I quote “on the ground of matters which have occurred since the date of the judgment”. (Emphasis added) SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 9 of 23 In respect of the specific matters which must have occurred since the date of the judgment and which may be a ground for an application for stay of execution, in the case of The Republic v. High Court (Criminal Division 9), Accra, Ex Parte Ecobank [Unreported; Civil Motion No. J5/10/2022; 18 January 2022], (supra) the Supreme Court speaking through Pwamang JSC explained that “the filing of an appeal is certainly one matter that may occur after a judgment and can ground an Application for stay of execution or of proceedings under Order 43 Rule 11”. (Emphasis added) EXECUTABLE OR NON – EXECUTABLE JUDGMENTS In the case of Ghana Airport Company Ltd v. Osei Ansong [Unreported; Civil Appeal No. H1/23/2014; 30th April 2014; CA] an appeal was filed by a plaintiff against the grant of an application for stay of execution by the trial judge. The Court of Appeal stated inter alia that: “A condition precedent to the consideration of an application for stay of execution pending an appeal is that there must be a valid appeal pending and the judgment appealed against must be executable. These conditions satisfied, a court will likely grant the application if the subject- matter will be destroyed before the appeal is finally determined or if the outcome of the appeal, if successful will be rendered nugatory or the appellant would be deprived of the means of prosecuting the appeal. However the court will not grant a stay of execution of a judgment if the application is not brought in good faith, or if the appeal itself is brought for collateral reasons rather than test the rightness of the judgment or there are no arguable points of law on appeal.” (Emphasis added) Thus, whilst the filing of an appeal is one of the matters which may be a ground for an application for stay of execution, the dictum of the Court of Appeal in Ghana Airport Company Ltd v. Osei Ansong (supra) indicates that the appeal must be filed against an executable judgment. In Mensah v Ghana Football Association and others [1989-90] 1 GLR 1 at page 12 as correctly cited by Counsel for the Applicant, the Supreme Court similarly explained that: SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 10 of 23 “The concept of stay of execution in our law…is founded on the idea that where the person against whom the order is directed is in no position to execute the judgment by the various execution processes, then a stay of execution is meaningless and logically pointless. As a hypothetical illustration, I think it is meaningless and pointless to stop a man from shooting his neighbour when he has neither a gun or a bullet.” (Emphasis added) In its Ruling in the case of Tony Adams v. Anang Sowah [Unreported; Civil Motion No J8/2/2009; 14 January 2009; SC] His Lordship Atuguba JSC stated that if the judgment appealed is not executable then the question of stay of execution does not simply arise. In the unanimous decision of the Supreme Court in the more recent case of Ghana Telecommunications Co Ltd & Another v Atta VI (supra) it is however reported in holding 1 at page 1090 of the report that the Supreme Court departed from its previous decisions that refused stay of execution of judgments of the Court of Appeal that were not executable. The facts of the case which are stated in the judgment of Gbadegbe JSC at pages 1092-1093 of the report are that an application for stay of execution filed before the Supreme Court pending an appeal at the Court of Appeal was vehemently resisted by the Respondents who contended primarily that since the decision of the Court of Appeal did not contain any executable orders that can be enforced by a writ of execution, the application for stay of execution filed by the Applicant was incompetent. Counsel for the Respondents relied on a number of decisions of the Supreme Court in support of his view. The Supreme Court considered its previous decisions in Ghana Football Association v Apaade Lodge Ltd [2009] SCGLR 100 and Anang Sowah v Adams [2009] SCGLR 111 relied on by the Respondents and stated at page 1094 of the report that: “True, it is to say that there has been a collection of cases of this court which preclude the court from exercising its jurisdiction to grant stay of execution in cases which come before it in the exercise of its SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 11 of 23 appellate jurisdiction where the decision of the Court of Appeal made no executable orders as in the matter before us. However, in the case of NDK Financial Services Ltd v Yiadom Construction and Electrical Works [2007-2008] 1 SCGLR 93, the court granted an order of stay of execution of a non- executable order…The words of Brobbey JSC (as he then was)…at page 98 of the Report [is] as follows: In considering an application for stay, the court should endeavour to do substantial justice…” The Supreme Court examined it previous decisions granting a stay of executable orders and those granting a stay of non-executable orders and stated that by the application filed and the Respondents opposition, its task was to determine which of the varied approaches to stay of execution pending appeal is more preferable as representing what may be described as the justice of the matter. The Court considered the nature of the appeal process and explained at page 1098 of the report that “While an appeal is pending for determination, it is in accord with fairness and in particular process integrity that nothing be done to the judgment debtor … before the decision has finality…thereby rendering the victory on appeal nugatory.” The Supreme Court added that “What this portrays is that when a court is confronted with an application for stay of execution, its main focus should be to delicately balance the competing rights of the parties under the judgment on appeal such that a reasonable onlooker apprised of the facts can say that the decision of the court on the application was a just one…” (Emphasis added) Regarding applications for stay of execution from non-executable orders, the Supreme Court stated at page 1098 of the report that “The time has come for us to embrace a new approach …the view is reached that in appropriate cases, the ends of justice is better served even in cases where the judgment …is said to be merely executable.” SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 12 of 23 As reported at page 1090 of the report, the Supreme Court thus departed from its previous decisions that refused stay of execution of judgments of the Court of Appeal that were not executable. The recent decision of the Ghana Telecommunications Co Ltd & Another v Atta VI (supra) suggests that the distinction between executable and non-executable orders or judgments may not be a material factor in considering applications for stay of execution pending an appeal. SETTLED PRINCIPLES TO BE CONSIDERED Per Order 43 Rule 11 of C. I. 47, the decision of the Court to grant an application for stay of execution is discretionary and “the Court may by order grant the relief, on such terms as it thinks just.” (Emphasis added) The Supreme Court has however held that in the exercise of a Court’s discretion on whether or not to grant an application for stay of execution, the principles to be considered are well- settled. In NDK Financial Services Ltd. v. Yiadom Construction and Electrical Works Ltd (supra) the Supreme Court held as reported in head note 1 of the report that: “The principles for considering an application for stay of execution pending an appeal were well- settled” (Emphasis added) Similarly, in the case of Charles Osei Bonsu v. Dorothy Aboagye & Anor (2015) 81 GMJ 25, the Supreme Court in its judgment delivered on 30th July 2014 also stated that the principle for considering an application for a stay of execution is well-settled. The Court referred to the cases of Livingstone Djokoto v. BBC Industrials [2012] 36 MLRG 107, NDK Financial Ltd. v. Yiadom Construction and Electrical Works Ltd.(supra), Mensah v. Ghana Football Association and Others (supra) Joseph v. Jebeile and Another (1963) 1 GLR 387-392 SC; and SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 13 of 23 held that it must be shown that without the order of stay of execution, the applicant’s appeal, if successful would be rendered nugatory. In Livingstone Djokoto v. BBC Industrials Co. Ltd [2011] SCGLR 825 at 830, the Supreme Court held per Anin Yeboah JSC (as he then was) that: “In deciding applications for stay of execution, both trial court and an appellate court must carefully examine the judgment appealed against and the order or decree sought to be executed to consider whether the appeal would not be rendered nugatory should the court refuse it and the appellant win on appeal… Secondly, the court must also consider the exceptional circumstances, which depend on the nature of the case… This court may in appropriate cases grant stay where balance of hardship will fall on the appellant.” (Emphasis added) At holding 2 of the report, the guiding principles for the grant of stay of execution stated by the Supreme Court are reported as follows: (1) whether the appeal will not be rendered nugatory should stay be refused and the appellant win on appeal, (2) whether there are arguable points of law to be decided by the appellate court, (3) whether refusal to grant would not occasion hardship on the appellant and (4) in applying those principles care should be taken not to determine any issue that might prejudice the substantive appeal. (Emphasis added) In the case of Ghana Telecommunications Co Ltd & Another v Atta VI (supra) the Supreme Court stated that the decision in Linotype-Hell Finance Ltd v. Baker [1992] 4 ALL ER 887 is of persuasive authority and at page 1129 of the report the Supreme Court quoted the dictum of Stoughton LJ in Linotype-Hell Finance Ltd v. Baker as follows: SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 14 of 23 “Where an unsuccessful defendant seeks a stay of execution pending an appeal to the Court of Appeal, it is a legitimate ground for granting the Application that the defendant is able to satisfy the court that without a stay of execution he will be ruined and that he has an appeal which has some prospect of success.” (Emphasis added) In considering the present application, this Court will rely on the above-stated principles. ANALYSIS AND OPINION In the instant case, the Court finds that the filing of the appeal against the decision of this Court as evidenced by Exhibit B is a matter which has occurred after the judgment of 1st March 2023 and this is the ground for the present application. As to whether or not the appeal is filed against a judgment which is executable, as submitted inferentially by Counsel for the Respondent, this Court finds that in the concurring opinion delivered by Pwamang JSC in the case of Ghana Telecommunications Co. Ltd & Another v Atta VI (supra), at page 1119 of the report, His Lordship Pwamang JSC referred to the case of Mensah v Ghana Football Association (supra) and explained that: “In that case the Supreme Court considered an application for stay of execution pending appeal against a judgment that granted a perpetual injunction. The respondent relying on Eboe v Eboe (supra) argued that an injunction was not capable of execution by the known methods of execution set out in the High Court (Civil Procedure) Rules, 1954 (LN 140A). The majority explained that execution is the putting in motion the machinery of the law to enforce a judgment of a court and that since the applicant could be proceeded against for contempt of court, that would amount to execution. SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 15 of 23 His Lordship Pwamang JSC added that in Mensah v Ghana Football Association (supra) it is stated at page 5 of the report that His Lordship Amua-Sakyi, JSC who authored the majority judgment said as follows: “We have found it necessary to deal with the question whether the judgment was one which was executable because we agree that if it was not then no order staying execution could properly have been made and the appeal must succeed. Having come to the conclusion that it was executable we now have to consider the merits of the appeal against the decision of the Court of Appeal granting a stay.’ His Lordship added that it is therefore reported in the Headnote as follows: “1) where a person had been granted an order of perpetual injunction in protection of his rights, it would be executable in the sense that any breach of the order would render the person liable to attachment for contempt.” The Supreme Court speaking through His Lordship Pwamang JSC therefore stated that although “The majority decision in the case of Mensah v GFA (supra), is often referred to as deviating from the principle on non-executable judgments… such would be a misreading of the decision.” (Emphasis added) The Supreme Court also noted that in Mensah v Ghana Football Association (supra) Taylor JSC in his dissent limited execution to the writs of execution stated in LN 140A. His Lordship Pwamang JSC however stated that: “In my view, the majority was right since contempt proceedings are a form of execution and in our current High Court (Civil Procedure) Rules, 2004 (C. I. 47), it is so expressly stated at Or 43 R5(1)(cc).” SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 16 of 23 From the above explanation provided by the Supreme Court in Ghana Telecommunications Co. Ltd & Another v Atta VI (supra), this Court is therefore of the considered opinion that in view of the fact that the judgment of this Court dated 1st March 2023 contains an order of injunction restraining the Applicant from disturbing the Respondent’s enjoyment of the subject land, the judgment appealed against is executable as submitted by Counsel for the Applicant. The Court is however of the further considered opinion that whether or not the judgment appealed against is executory or non-executory, from the decision of the Supreme Court in Ghana Telecommunications Co Ltd & Another v Atta VI (supra) the main focus of the Court in considering the present application should be to ensure that in the event that the Applicant is successful on appeal, his victory is not rendered nugatory. ARGUABLE POINTS OF LAW RAISED FOR DETERMINATION ON APPEAL. The Court has considered the Notice of Appeal – Exhibit B and notes that the following three grounds of appeal are stated: i. ii. The judgment is against the weight of the evidence, The trial judge erred in holding that the Plaintiff was in possession of the subject land instead of the Defendant, and iii. The trial judge misapprehended the judgment of the Court of Appeal in the suit entitled Nii Tetteh Oprempeh II & Anor vrs Komeya Ltd & 4 Others dated 28th November 2019 (Civil Appeal No. H1/163/2018) upon which it based its judgment. The Court is of the considered opinion that if the arguments by Counsel for the Applicant that there is overwhelming evidence in support of his grounds of appeal or in support of his case that he has been in possession of the subject land since the year 2013, are acceded to in SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 17 of 23 the determination of the present application for stay of execution pending appeal, the substantive appeal will be prejudiced. In Livingstone Djokoto v. BBC Industrials Co. Ltd (supra) the Supreme Court cautioned that in determining an application for stay of execution, care must be taken not to determine any issue that might prejudice the substantive appeal. In the case of Ghana Telecommunications Co. Ltd & Another v Atta VI (supra), however, the Court granted the application for stay of execution when it found inter alia that “If the facts deposed to in the affidavit …in support of the application for stay of execution are proved to be true then their existence at the trial would have prevented the judgment being given in favor of the plaintiff.” This Court finds that the judgment of 1st March 2023 was to a large extent based on the decision of the Court of Appeal in Civil Appeal No. H1/163/2018. Thus, if this Court differently constituted indeed misapprehended the decision of the Court of Appeal in that case, as alleged by the Applicant in his grounds of Appeal, then as held by the Supreme Court in its Ruling delivered by his Lordship Gbadegbe JSC in the case of Ghana Telecommunications Co Ltd & Another v Atta VI (supra), there may be some prospects of success of the Appeal. WHETHER OR NOT THE APPEAL WOULD BE RENDERED NUGATORY SHOULD THE COURT REFUSE THE APPLICATION AND THE APPLICANT WIN ON APPEAL From the authorities on the matter, the primary consideration in determining whether or not to grant the present application is whether or not the appeal will be rendered nugatory if the application is refused and the appeal is successful. In Joseph v. Jebeile and Another (supra), the Supreme Court held that: SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 18 of 23 “[I]t is the paramount duty of a court to which an application for stay of execution pending appeal is made to see that the appeal, if successful, is not rendered nugatory”. (Emphasis added) Similarly, in Mensah v. Ghana Football Association and Others (supra), the Supreme Court held that: “If the enforcement would make the appeal, if successful, nugatory then the proper order to make was one staying execution.” After a careful consideration of the present application, the Court finds that it is not stated anywhere in the affidavit in support of the application that the appeal would be rendered nugatory if the present application is refused and no evidence has also been provided in this regard. In his submissions in Court however, Counsel for the Applicant stated that so long as the Respondent is in possession of the subject land, he can alienate same and the judgment of the Court of Appeal will be rendered nugatory. The Court considers that without more, the above concerns raised by Counsel for the Applicant remain only concerns as there is no evidence before the Court that the apprehension of Counsel for the Applicant is a real likelihood. The Court therefore finds that there is no evidence before it that the appeal will be rendered nugatory if the present application is refused. In the case of Ghana Telecommunications Co Ltd & Another v Atta VI (supra), the Supreme Court reviewed the authorities on the matter, cited with approval the case of Linotype-Hell SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 19 of 23 Finances Ltd v Baker [1992] 4 All ER 887, which it stated to be of persuasive authority, and in which it was stated that: “… It seems to me that, if a defendant can say that without a stay of execution he will be ruined and that he has an appeal which has some prospect of success, that is a legitimate ground for granting a stay of execution.” This Court is therefore of the considered opinion that from the above-cited authority, the Applicant for an order for stay of execution should be able to satisfy the Court that the Appeal has some prospect of success “and” also that without a stay of execution he will be ruined. From the analysis above, this Court finds that whilst the Applicant provided some grounds which if established on appeal may provide some prospect of success, the Applicant did not satisfy the Court that without a stay of execution he well be ruined, or that the appeal will be rendered nugatory. In the absence of evidence to establish on the balance of probabilities that the appeal will be rendered nugatory if the present application is refused, the Court considers that on the basis of all the authorities cited above, the present application should be refused. BALANCE OF HARDSHIP In the case of Livingstone Djokoto v. BBC Industrials Co. Ltd (supra), it was held that the balance of hardship “may be considered in appropriate cases to grant stay where balance of hardship will fall on the appellant.” SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 20 of 23 The Applicant did not state or provide any evidence to lead the Court to a conclusion that he will suffer hardship if the present application is refused and he is successful on appeal. The Court therefore considers that this is not an appropriate case for the balance of hardship to be considered. CONCLUSION For all of the above stated reasons, I have little inclination to deprive the Respondent of his victory as I am not persuaded that a case has been made for this Court to exercise its discretion in the Applicant’s favour. The application filed on 17th April 2023, seeking an order of the Court to stay execution of the Judgment of this Court differently constituted and dated 1st March 2023, pending the determination of the Appeal filed by the Applicant is hereby refused. Costs of GHS 2,000 is awarded against the Applicant in favour of the Respondent. SGD NABEELA NAEEMA WAHAB J. (MS.) (JUSTICE OF THE HIGH COURT) COUNSEL ALFRED BANNERMAN WILLIAM JNR. FOR THE PLAINTIFF/ - ABSENT SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 21 of 23 JUDGMENT-CREDITOR/RESPONDENT CYRIL ELORM BANI HOLDING BRIEF OF EDWARD ANOKYE - PRESENT FOR THE DEFENDANT/JUDGMENT-DEBTOR/APPLELLANT/ APPLICANT CASES REFERRED TO: 1. Mensah v Ghana Football Association and others [1989-90] 1 GLR 1 2. London Permanent Benefit Society v. De Buer [1968] 1 ALL ER 372 3. Ogyeadom Obranu Kwesi Atta VI v. Ghana Telecommunications Co. Ltd & Anor [Civil Motion No. J8/131/2019] 4. Ghana Telecommunications Co Ltd & Another v Atta VI [2017-2020] 1 SCGLR 1090 5. The Republic v. High Court (Criminal Division 9), Accra, Ex Parte Ecobank [Unreported; Civil Motion No. J5/10/2022; 18 January 2022] 6. Ghana Airport Company Ltd v. Osei Ansong [Unreported; Civil Appeal No. H1/23/2014; 30th April 2014; CA] 7. Tony Adams v. Anang Sowah [Unreported; Civil Motion No J8/2/2009; 14 January 2009; SC] 8. Ghana Football Association v Apaade Lodge Ltd [2009] SCGLR 100 9. Anang Sowah v Adams [2009] SCGLR 111 SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 22 of 23 10. NDK Financial Services Ltd v Yiadom Construction and Electrical Works [2007-2008] 1 SCGLR 11. Charles Osei Bonsu v. Dorothy Aboagye & Anor (2015) 81 GMJ 25 12. Livingstone Djokoto v. BBC Industrials [2012] 36 MLRG 107 13. Joseph v. Jebeile and Another (1963) 1 GLR 387-392 SC 14. Livingstone Djokoto v. BBC Industrials Co. Ltd [2011] SCGLR 825 15. Linotype-Hell Finance Ltd v. Baker [1992] 4 ALL ER 887 SUIT NO: LD/1181/2020 – Edward Selorm Dei-Tutu vrs Henry Asenso Okyere Page 23 of 23