DAVID ODAMTTEN ABBEY VRS SHANTI ANNAN (LD/0514/2021) [2023] GHAHC 583 (21 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE GHANA (LAND COURT SEVEN ‘7’) HELD IN ACCRA ON THE THURSDAY THE 21ST DAY OF DECEMBER, 2023 BEFORE HIS LORDSHIP ALEX OSEI TUTU, J. SUIT NO: LD/0514/2021 DAVID ODAMTTEN ABBEY :: PLT/RESPONDENT VRS SHANTI ANNAN :: DEFT/APPLICANT ================================================ R U L I N G In this Application, the Defendant is praying the Court for an Order to Stay the Execution of the Judgment of this Court, differently constituted dated 28th April, 2023. It is his case that the property in dispute has been in the possession of her family since 1952 and that same was conveyed to her grandmother Stella Doku Nartey from James Allotey on 14th August, 1953. The Applicant attached to her Application, a copy of the conveyance. It is her view that the trial Judge failed to consider the long undisturbed acts of possession of the Defendant on the land since 1953. She also argues that the search results relied on by the Respondent disclosed that the property was affected by her grandmother’s conveyance. According to the Applicant, the Respondent has begun developmental works on the land and that puts her appeal which raises substantial questions of law and facts in danger. She believes that if her Application is not granted she will suffer irreparable loss. The Respondent on the other hand challenges the capacity of the deponent, who is a Law Clerk to depose to the affidavit in support of the Application RULING DELIVERED BY J. ALEXANDER OSEI TUTU ON 21ST DEC., 2023 IN SUIT NO. LD/0514/2021 AT LAND COURT ‘7’ when the Applicant has been evading service of the Entry of Judgment on her. It is further her case that the Defendant’s land is different from hers. Does the Law Clerk who deposed to the affidavit in support of the Motion have capacity to do so? The Respondent did not provide any legal authority which makes it impossible for the deponent to depose to the facts contained in the affidavit in opposition on behalf of the applicant. In REPUBLIC VRS ADANSI AND OTHERS; EX PARTE OSAHENE KATAKYI BUSUMAKURA III [2013–2015] 1 GLR 757, the Court of Appeal held at holding 2 of the headnotes thus: “Order 20 rule 4 (2) of the High Court (Civil Procedure) Rules, 2004 (C. I. 47) when purposively construed together with the other part of Order 20 meant that a person who was not a party to a case might depose to an affidavit on behalf of a party. Further, Order 19 rule (4) of C. I. 47 required that every supporting affidavit be deposed to by the Applicant or other person authorized by the Applicant to depose to on his behalf … one did not require a power of attorney to depose to an affidavit in an action or application. What was needed was the consent or the authority of the party.” Similarly, in ADJEWECO LTD. VRS GCB (1982–83) 2 GLR 847 @ 850, Cecilia Koranten Addow J. held thus: “… the person who swears to the affidavit need not be the Plaintiff or a person who can swear positively to the facts of the case. It may be sworn to by any person duly authorized by the Plaintiff to make it.” At paragraph 2 of the affidavit in support, Roland Johnson, the Law Clerk deposed thus: “(2) that I have the consent and authority of the Applicant to depose to this Affidavit the facts of which are within my personal knowledge, information and belief. To the extent that they are within my knowledge I have obtained instructions to that effect”. Since the Clerk deposed to the facts on behalf of the Applicant and the Applicant has not disputed that fact, I find no good reason to disclaim the affidavit in support of the Application. The Respondent further noted that the Applicant has been evading the service of the Entry of Judgment and should not be permitted to bring this RULING DELIVERED BY J. ALEXANDER OSEI TUTU ON 21ST DEC., 2023 IN SUIT NO. LD/0514/2021 AT LAND COURT ‘7’ application. Again, I regret I am unable to lend support to this argument. It is not for nothing that the rules of Court provide for evading parties to be served by Substituted Service. The Respondent as a diligent party could have taken the appropriate steps to get the processes in question served on the Respondent by substituted service. Accordingly, I find the argument out of place and proceed to deal with the substantive Application. The cardinal principle underlying an Application for stay of execution is that a successful party need not be denied the fruits of his success. However, where denying the Application would render the outcome of the appeal nugatory, the Court will not drag its feet in granting the stay Application. To obtain the grant, the Applicant must be able to demonstrate special or exceptional circumstances warranting the grant. The Court of Appeal per Ofoe JA in LAMPTEY VRS LANDS COMMISSION AND OTHERS [2013–2015] 1 GLR 607 decided as follows: “It is trite that a victorious party should not be denied the rights he acquired under a judgment given in his favour. However, the law was also that where a losing party had convincing reasons why the hands of the victorious party should be stayed whilst his appeal against the judgment was being considered, the courts were permitted by the rules to stay the hands of the victorious party until the appeal was heard. The courts in their consideration for such stay application required that special or exceptional circumstances be established by the applicant if he was to succeed in getting the judgment stayed. Such exceptional circumstances included situations where the subject matter of the suit would be destroyed if the stay was not granted or where the outcome of the appeal, if successful, would be rendered nugatory. Consequently, it would be unjust to refuse an application for stay of execution if the applicant could not be restored to the status quo ante upon a successful appeal. In addition, it was relevant to consider the balance of convenience in the circumstances of the case and the hardship which the grant or refusal would occasion.” The notice of appeal must further contain triable issues as was held in DZOBO VRS AGBELEWU (1991) 1 GLR 453: "an application for the stay of execution should succeed if the Applicant could demonstrate and satisfy the Court that there were arguable points in the appeal. Further, an Appellate Court to which an application for the stay of execution of a judgment which was a subject matter of an appeal had been made ought to see to it that the appeal, if successful was not nugatory." (See MD OF RULING DELIVERED BY J. ALEXANDER OSEI TUTU ON 21ST DEC., 2023 IN SUIT NO. LD/0514/2021 AT LAND COURT ‘7’ SADISCO HOTEL VRS MARMON (1984–86) 1 GLR 333 CA & GNTC VRS BAIDEN (1987–88) 2 GLR 163 CA). I have carefully considered the Application. The Applicant is relying mainly on a 1953 conveyance to her grandmother, Stella Doku Nortey from James Allotey Quaye. It is the Respondent’s case that his land differs from that of the Applicant. From page 19 of the Judgment, the trial Court made findings of fact based on the Surveyor’s Report and evidence that the land of the Applicant is different from that of the Respondent. I am taken aback that the Applicant did not challenge the Report of the Surveyor if the Composite Plan said so. Where a party is not agreeable to a Court Expert’s testimony, he is reasonably expected to exercise his rights under the law by calling his own Expert to comment or where necessary, discredit the Report of the Court Appointed Surveyor or Expert (SEE ORDER 26 RULE 6 (1) OF C. I. 47). In this case, that was not done. I am however mindful of the fact that the Surveyor’s Report is only of persuasive effect lacking a binding force. As Kusi Appiah JA put it in BOYE VRS ARMAH (2012) 44 GMJ 186 @ 191 as follows: "The position of the law is that expert opinions are persuasive and not mandatory. Consequently, it merely assists the Court in arriving at its own conclusion and thus not binding on the courts" In TETTEH VRS HAYFORD (2012) 44 GMJ 11 @ 17, the Supreme Court per Dotse JSC held thus: "It is generally understood that a Court is not bound by the evidence given by an Expert such as the Surveyor in this case." Also in MFUM FARMS & FEEDMILL LTD VRS MADAM AGNES GYAMFUA–DECEASED (SUBSTITUTED BY MRS. LOVIA OPOKU BANDOH, SUIT NO. CIVIL APPEAL NO. J4/25/2017, DATED 24TH OCTOBER 2018, S. C., His Lordship decided: “We are not unaware of legal position stated in a good number of respected judicial decisions that, a court is not bound by the evidence relating to an Expert such as the surveyor given in this case”. (See also SASU VRS WHITE CROSS INSURANCE CO. LTD. (1960) GLR 4, C. A.; DARBAH AND ANOR. VRS AMPAH (1989–90) 1 GLR 598 AT 606, CA; RULING DELIVERED BY J. ALEXANDER OSEI TUTU ON 21ST DEC., 2023 IN SUIT NO. LD/0514/2021 AT LAND COURT ‘7’ REV. DANIEL OKPOTIOKERTCHIRI VRS EDDIE NELSON [2016] 101 G. M. J. 138 @ 155 C. A.; FENUKU VRS JOHN TEYE (2001–02) SC GLR 985 @ 990 & MADAM COMFORT OFORI VRS KWAME APPENTENG, CIVIL APPEAL NO. J4/17/2017, DATED 6TH DECEMBER 2018, S. C. (Unreported) It may be observed that the search results conducted by the Plaintiff has the Applicant’s grandmother’s name (Stella Doku Nartey) on it. That seems to suggest that the Respondent’s land was encumbered when the search was conducted on his land. It thus raises serious issue for the Appellate Court to resolve. Since the Applicant has demonstrated that the Respondent is undertaking developmental works on the land and that may change its nature, I believe the ends of justice will better be served if the stay Application is granted. Accordingly, Defendant/Applicant is granted as prayed. the Application for stay of execution filed by the (SGD.) H/L ALEXANDER OSEI TUTU JUSTICE OF THE HIGH COURT PARTIES: PLAINTIFF/RESPONDENT ABSENT DEFENDANT/APPLICANT REPRESENTED BY ERIC ASIEDU PRESENT RULING DELIVERED BY J. ALEXANDER OSEI TUTU ON 21ST DEC., 2023 IN SUIT NO. LD/0514/2021 AT LAND COURT ‘7’ COUNSEL: ALEX YAW AGYEI ESQ., H/B FOR THOMAS HUGHES ESQ., FOR PLAINTIFF/RESPONDENT VANESSA APPIAGYEI ESQ., WITH ASABEA ADDAI AND VICTORIA OTOO ESQ., BEING LED BY EBOW BREW-HAMMOND ESQ., FOR DEFENDANT/APPLICANT PRESENT REFERENCES: CASES CITED REPUBLIC VRS ADANSI AND OTHERS; EX PARTE OSAHENE 1. KATAKYI BUSUMAKURA III [2013–2015] 1 GLR 757 2. 3. 4. 5. 6. 7. 8. ADJEWECO LTD. VRS GCB (1982–83) 2 GLR 847 @ 850 LAMPTEY VRS LANDS COMMISSION AND OTHERS [2013–2015] 1 GLR 607 DZOBO VRS AGBELEWU (1991) 1 GLR 453 MD OF SADISCO HOTEL VRS MARMON (1984–86) 1 GLR 333 CA GNTC VRS BAIDEN (1987–88) 2 GLR 163 CA) BOYE VRS ARMAH (2012) 44 GMJ 186 @ 191 TETTEH VRS HAYFORD (2012) 44 GMJ 11 @ 17 RULING DELIVERED BY J. ALEXANDER OSEI TUTU ON 21ST DEC., 2023 IN SUIT NO. LD/0514/2021 AT LAND COURT ‘7’ 9. MFUM FARMS & FEEDMILL LTD VRS MADAM AGNES GYAMFUA– DECEASED (SUBSTITUTED BY MRS. LOVIA OPOKU BANDOH, SUIT NO. CIVIL APPEAL NO. J4/25/2017, DATED 24TH OCTOBER 2018, S. C. 10. SASU VRS WHITE CROSS INSURANCE CO. LTD. (1960) GLR 4, C. A. 11. DARBAH AND ANOR. VRS AMPAH (1989–90) 1 GLR 598 AT 606, CA REV. DANIEL OKPOTIOKERTCHIRI VRS EDDIE 12. 101 G. M. J. 138 @ 155 C. A. NELSON [2016] 13. FENUKU VRS JOHN TEYE (2001–02) SC GLR 985 @ 990 14. MADAM COMFORT OFORI VRS KWAME APPENTENG, CIVIL S. C. APPEAL NO. J4/17/2017, DATED (UNREPORTED) 6TH DECEMBER 2018, ENACTMENT THE HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C. I. 1. 47) RULING DELIVERED BY J. ALEXANDER OSEI TUTU ON 21ST DEC., 2023 IN SUIT NO. LD/0514/2021 AT LAND COURT ‘7’ 7