NANA KWASI AGYEMAN VII AND OTHERS vs. NANA HIMA DEKYI XIII AND OTHERS [1981]DLHC2161

Date	1981-12-15
Suit No.
Citation No.	[1981]DLHC2161

TWUMASI J.

B. KWAW-SWANZY FOR THE APPLICANTS.

JAMES MERCER FOR THE RESPONDENTS.

[1981]DLHC2161
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													<main id="main" class="content" style="min-height: 60rem" >NANA KWASI AGYEMAN VII AND OTHERS <o:p></o:p>vs. <o:p></o:p>NANA HIMA DEKYI XIII AND OTHERS <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1982-83] GLR 453<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
15 DECEMBER
1981<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

B. KWAW-SWANZY FOR THE APPLICANTS.<o:p></o:p>

&nbsp;JAMES
MERCER FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

TWUMASI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TWUMASI J.<o:p></o:p>The first
plaintiff in this case is the occupant of the paramount stool of Lower Dixcove
and the second and third plaintiffs are his sub-chiefs. The first defendant is
the occupant of the paramount stool of Upper Dixcove. There has been a
prodigious and exacting land litigation between the occupants of these two
paramount stools over the years. The latest facet of this protracted land
litigation came before my learned and noble brother Andoh J. (as he then was)
and terminated in favour of the first defendant who was then declared owner of
the land, the subject-matter of the suit.<o:p></o:p><o:p>&nbsp;</o:p>An
unpleasant repercussion of the plaintiffs’ unsuccessful claim to the disputed
land was an order that the plaintiffs and their subjects attorn tenant to the
occupant of the stool of Upper Dixcove as the overlord of the whole span of
land inhabited by Lower Dixcove. Presently, an appeal filed by the plaintiffs
is pending before the Court of Appeal and they now supplicate for an order to
stay execution.<o:p></o:p><o:p>&nbsp;</o:p>Under the
rules of court for the time being in force, a victorious party may as of right
go into execution of the judgment or order unless the defeated party acts
timeously in praying the court for an order to stay execution pending the
result of an appeal and the court accedes to the application. Rule 27 of the
Court of Appeal Rules, 1962 (L.I. 218) as amended by the Court of Appeal
(Amendment) Rules, 1975 (L.I. 1002), r. 2, states: “An appeal shall not operate
as a stay of execution of proceedings under the judgment or decision appealed
from except where the Court below or the Court otherwise orders”.<o:p></o:p>The court
before which an application for a stay of execution is made is called upon to
exercise a discretion of considerable consequence. For the court it is a very
difficult and delicate exercise of discretionary power, largely because the
enactment does not give any guidelines or conditions for the exercise of the
discretion. But, as Scrutton L.J. observed in Jones v. S.R. Anthracite
Collieries Ltd. (1920) 90 L.J.K.B 1315 at p. 1317 “the whole duty of this
court, and of every court should be to do justice between the parties.” Again
in Gardner v. Jay (1885) 29 Ch.D. 50. at p. 58, C.A. Bowen L.J. laid down a
guiding rule that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“[When] a
tribunal is invested by Act of Parliament or by Rules [of court] with a
discretion, without any indication in the Act or Rules of the grounds upon
which the discretion is to be exercised, it is a mistake to lay down any rules
with a view of indicating the particular grooves in which the discretion should
run...”.<o:p></o:p><o:p>&nbsp;</o:p>For my
part, I would concur in the view that the guiding principle in exercising any
discretion should be to do justice and I would add that the court should also
be guided by commonsense, fair-play and equity. In this regard each case should
be treated strictly according to its particular facts and circumstances.
Despite their avowal to refrain from laying down guiding principles which would
inure to fetter the exercise of discretion of court dealing with a motion for
stay of execution, there is an avalanche of cases where the superior courts
have, consciously or unconsciously, laid down guidelines for the exercise of
the discretion of a court and these principles have often invariably been
applied in many cases, because they have been found consistent with justice,
commonsense, fair-play and equity.<o:p></o:p><o:p>&nbsp;</o:p>The first
case I would like to deal with is Wilson v. Church (No. 2) (1879) 12 Ch.D. 454,
C.A. In this case an appeal was filed against an order that certain large sums
of money be paid out to certain bondholders most of whom resided abroad. The
court granted an application by the defeated party to stay execution. Cotton
L.J. said at p. 458:<o:p></o:p>