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

ABDULAI AMPAH V KOFI AMOABENG & ANOR. IN THE DISTRICT COURT HELD AT ADANSI ASOKWA ON MONDAY, THE 14TH DAY OF OCTOBER, 2024 BEFORE HER WORSHIP LINDA FREMAH BOAMAH-OKYERE, ESQ. SUIT NO. A1/01/2024 ABUSUAPANIN ABDULAI AMPAH --- APPLICANT V 1. KOFI AMOABENG 2. AKUA AFRA --- RESPONDENTS RULING BACKGROUND: 1. The Plaintiff claimed against the Defendants as follows: “a. An order of declaration to all that piece and parcel of land situate at a place known and called Krodadaaso (Old Town) which is the family land the Plaintiff and same has been trespassed by the Defendants measuring about two (2) acres b. Recovery of possession c. General damages Page 1 of 9 ABDULAI AMPAH V KOFI AMOABENG & 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 determination of the instant suit e. Cost” 2. After trial, the court entered judgment on the 12th day of August, 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 lawyer to file a Notice of Appeal on the following grounds: “a. Whether the judgment is against the weight of evidence adduced at the trial court 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, Page 2 of 9 ABDULAI AMPAH V KOFI AMOABENG & 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 filed a notice of appointment of solicitor on 26th September, 2024. Even though the matter was to be heard on 9th October, Counsel did not file any affidavit in opposition. 4. On the day of the hearing of the application, the matter was called at 9.01am but Counsel for Respondents was absent and, still, no affidavit in opposition had been filed. The motion was moved and adjourned for ruling. The court observes that it was subsequent to the hearing of 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 take advantage of these opportunities. The said affidavit in opposition was filed belatedly; the Applicant did not have the benefit of same Page 3 of 9 ABDULAI AMPAH V KOFI AMOABENG & ANOR. and therefore the court will not consider it in the determination of this 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 execution of its judgment: “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 reflect the evidence on record 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 been inure to my advantage or in my favour 10. That the Respondent herein will not suffer any hardship, loss or injury if the instant application is granted 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 probable chance to succeed in this appeal 12. That I am further told by Counsel and verily believe same to be true that this is a proper case the honourable Court ought to exercise its discretion in Page 4 of 9 ABDULAI AMPAH V KOFI AMOABENG & 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 with by the superior courts and some guidelines have been laid down 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 Express Bus Services Ltd [2011] 2 SCGLR 825 the court stated that ‘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 executed to consider whether the appeal would not be rendered nugatory should the court refuse it and the appellant wins on 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.’ The court also stated that a stay of execution may be granted in appropriate cases where the balance of hardship will fall on the appellant. Page 5 of 9 ABDULAI AMPAH V KOFI AMOABENG & ANOR. 7. In the case of Evans Adu Mensah v Alice Arthur [2019] DLHC6814, the court enumerated the principles which should guide the court when considering an application for stay of execution as follows: a. What would be the position of the appellant/applicant if the judgment was enforced and he succeeded on appeal. See Joseph v Jebeille [1963] 1 GLR 387, 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 collateral purpose the application for stay ought to be refused c. A court should not stay execution unless there are exceptional circumstances warranting a stay because it is well established that a successful litigant should not be deprived of the fruits of his victory d. Where the court is satisfied that the appeal is frivolous because the grounds of appeal contain no merit and therefore there is no chance of succeeding it ought to refuse an application for stay e. Whether the grant or refusal of the application will work greater hardship on either party. See the case of Nana Kwasi Agyeman Page 6 of 9 ABDULAI AMPAH V KOFI AMOABENG & ANOR. VII and Others v Nana Hima Dekyi XIII and Others [1982-83] GLR 453-463 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) SCGLR 39 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 BBC Industrial Co. (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 only executable order in the judgment is the payment of costs to the Respondents by the Applicant. 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 Page 7 of 9 ABDULAI AMPAH V KOFI AMOABENG & ANOR. is exercised by balancing the competing legal rights of the parties in the application. On the part of the Applicant, he suffers no hardship if this application is not granted. In fact, the grant of this application will not entitle him to recover the land from the Respondents. Should he succeed on appeal, the land will be there for his taking, and he will also be entitled to recover any costs he paid to the Respondents just as he would execute any costs that would be granted in his favour by the appellate court. The Applicant’s appeal will therefore not be rendered nugatory by the refusal of this application. 10. The Respondents on the other hand will suffer the loss in value of 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 the record that suggests or implies that the Respondents are not in the position to refund the money should the appeal succeed. The balance of hardship tilts against the Respondents. 11. For the foregoing reasons, the application for stay of execution filed on 19th September, 2024 is accordingly dismissed as there are no Page 8 of 9 ABDULAI AMPAH V KOFI AMOABENG & ANOR. exceptional circumstances warranting the grant of it. There shall be no order as to costs. MRS. LINDA FREMAH BOAMAH-OKYERE SGD MAGISTRATE 14/10/2024 Page 9 of 9