Tagoe Vrs Acquah (J4/24/2008 ) [2009] GHASC 13 (11 March 2009);

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA-AD. 2009

                             CORAM:      BROBBEY, J.S.C. (PRESIDING)

                                                ANSAH, J.S.C.

                                                ADINYIRA, J.S.C.

                                                DOTSE, J.S.C.

ANIN YEBOAH, J.S.C.

CIVIL APPEAL

NO. J4/24/2008      

                                                                             11TH MARCH, 2009

PRINCE WILLIAM TAGOE ….      PLAINTIFF/RESPONDENT/RESPONDENT

VRS.

ALBERT G. K. ACQUAH    …         DEFENDANT/APPELLANT/APPELLANT

J U D G M E N T

ANIN YEBOAH, J.S.C.:-

The Circuit Court at Tema on the 12th of December 2006 entered judgment against the appellant herein in favour of the Respondent herein to recover all rent arrears and ejectment from the house in dispute which is H/№ 12/N2 C2 situate at Tema.  It was the case of the respondent that he owned the property in dispute and leased same to the appellant for an agreed rent.  According to the Appellant, the respondent ceased paying rent in 1999.  He therefore commenced the action for recovery of possession and rent arrears.

The appellant controverted the facts and strongly denied the title of the respondent.  He stated among other things that there was an agreement he entered into with the respondent and one Quartey Papafio to travel abroad in exchange for the house in dispute.  He therefore claimed that the agreement divested the appellant of his ownership of the house.

The learned Circuit Court judge raised one crucial issue of who was the owner of the property to be resolved by him.  The lease entered between the parties herein was tendered in evidence as Exhibit 1 dated the 15/10/1981 was to commence on 1st October 1981.  The trial judge found as a fact that the respondent owned the property and accordingly entered judgment to the respondent and made an order for the recovery of rent arrears with cost.  Being dissatisfied with the judgment, the appellant lodged an appeal to the Court of Appeal.  He filed a motion for stay of execution at the Court of Appeal which was refused on the 4/12/2007.  He has appealed to this court against the refusal of the Court of Appeal with the leave required under Article 31(1) (b) of the Constitution 1992.

In this application learned counsel has invited this court to grant the stay on the grounds that both the trial court and the Court of Appeal failed to consider the effect of PNDCL 5 in this case.  According to him even though PNDCL 5 has been repealed, the repeal does not revive the rights of the respondent and this is so under section 8(1) of the Interpretation Act.

Another ground which was argued is that the Court of Appeal failed to exercise its discretion in his favour and thereby refused his application for stay of execution.

What is before this court is an appeal against the refusal of the Court of Appeal to grant the motion for stay of execution.  Even though a legal point has been raised, it should be borne in mind that the discretion to grant or refuse the application was vested in the Court of Appeal under the circumstances.  The Appellate Court which is this court is not to substitute its own discretion for the Court of Appeal.  It therefore behoves the appellant to demonstrate convincingly that the discretion was not judiciously exercised, to warrant our intervention.  It has been the practice that courts do not put fetters on the victorious party to prevent them from reaping the grants of their victory in legal proceedings by granting stay of execution.  It will, however, grant a stay of execution if the appellant demonstrates that there are arguable points of law to be canvassed on appeal or that the circumstances of the case is such that if a stay is not granted any allowance of the appeal will be mandatory.   See DZOBO V AGBEBLEWU [1991] IGLR 294 and JOSEPH V JEBEILE [1963] IGLR 387 SC.

It has been urged on this court that the PNDCL 5 ousted the title of the respondent and thereby denied him of ownership in the property and the fact that the appellant had been in possession over a long period of time, any refusal would work serious hardship against him.  This court as an appellate court can only intervene with the exercise of the discretion it could be shown that the discretion was exercised on wrong or inadequate material placed before the court which exercised the discretion or if it could also be demonstrated that the court gave no weight to the relevant matters and ignored relevant material in arriving at its decision.  If the lower courts decision was also based on a misunderstanding of the law or on inferences that particular facts existed or did not exist when in fact evidence shows to be wrong, this court can interfere.  See CRESNSTIL V CRENSTIL [1962]2 GLR 171 SC, BLUNT V BLUNT [1943] AC 517 and BALLOOS V MENSAH [1984-86 1 GLR 724 CA.

As the appellant who has appealed against the discretion of the lower court has failed to demonstrate that, the discretion was not rightly exercised, I will proceed to dismiss the appeal.

                                                                                                                       ANIN YEBOAH

               (JUSTICE OF THE SUPREME COURT)

I agree

                                                                                                     S. A. BROBBEY

( JUSTICE OF THE SUPREME COURT)

I agree

J. ANSAH

( JUSTICE OF THE SUPREME COURT)

I agree

                              S. O. A. ADINYIRA (MRS)

( JUSTICE OF THE SUPREME COURT)

I agree

J. V. M. DOTSE

( JUSTICE OF THE SUPREME COURT)

COUNSEL:

OSAFO BUABENG FOR THE APPELLANT

G. R. KWAME AYEH FOR THE RESPONDENT.