AGYABENG vs. ANNAN [1992]DLCA5036

Date	1992-05-10
Suit No.	[1992 – 93] 4 G B R 1441 – 1443 C. A
Citation No.	[1992]DLCA5036

AMPIAH JA

BROBBEY JA

KWAPONG J

KWAKU BAAH FOR THE APPLICANT.

C O NYANOR FOR THE RESPONDENT.

[1992]DLCA5036
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													<main id="main" class="content" style="min-height: 60rem" >AGYABENG<o:p></o:p>vs.<o:p></o:p>ANNAN<o:p></o:p>[COURT
OF APPEAL]<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">

[1992 – 93] 4 G B R 1441 – 1443 C.
A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 20 MAY 1992<o:p></o:p>

C
O NYANOR FOR THE RESPONDENT.<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">

AMPIAH
JA, BROBBEY JA, KWAPONG J<o:p></o:p>

</div>AMPIAH JA. <o:p></o:p>On
28 October 1991 judgment was delivered against the appellant-applicant herein
and she was ordered to vacate the store in which she traded by the end of
January 1992. The applicant appealed against the judgment and applied for stay
of execution of the order to the trial court. The court granted her a stay of
execution up to February 1992 hoping by that period the record of proceedings
would have been completed. According to the applicant, try as she did to have
the record completed, the record was not ready. She therefore went to the court
below once more ostensibly to ask for a further stay; what she really needed
was extension of time. The court refused her application saying that the stay
granted earlier had not been given on terms. Being aggrieved by this order or
refusal, the applicant has applied to this court for a stay of execution of the
order of the court below.<o:p></o:p>In
his argument, counsel for the applicant submitted that although there was a
stay of execution by the court below in the first application, the grant was
made on the presumption that the record would be ready by then and that when
the applicant realised that the record was not ready, even though the court
itself had promised to “work conscientiously” to have it completed, she had
gone back to that court to ask for extension of time. It was after the
application was refused that the applicant came to this court. Counsel for the
respondent argued that the applicant had come to this court by the wrong procedure.
He submitted that once the applicant had accepted the terms of the order below,
it did not lie in her mouth to come to this court to ask for a stay of
execution; she should have appealed against the order refusing the extension of
time.<o:p></o:p>It
is trite learning that once an applicant has accepted the order of stay of
execution he or she cannot come to the appellate court for the same order. The
authorities have it however that if for any reason, the applicant is not
satisfied with the grant in the court below because it is a partial grant or
the order as granted appears to be harsh, he can apply to the appellate court
for a stay of execution, as the partial grant or the harsh grant would be
deemed to be a refusal.<o:p></o:p>The
facts in this application are peculiar and must be treated as such. Even though
the court below had granted the stay, the order was made on the presumption
that the record would be ready. The applicant, finding herself in a dilemma
because the record was not ready, went back to the court below to inform it and
to ask for more time. This was refused. It was then that she decided to have a
second bite at the cherry. I am in no doubt that if the applicant had
considered the time given her as harsh and therefore amounted to a refusal of
her application she could have applied to this court for a second look at her
application. Her attempt to go back to the court below for an extension of time
must be taken as a misapprehension of the legal situation by her counsel. This
court is to do justice in this case. Even though the application had been
granted partially, the court itself envisaged the difficulty in the way of the
applicant. We are sure that if the court had realised that the record would not
be ready, it would have granted a longer time. The record, we are told, is
still not ready.<o:p></o:p>The
complaint of the respondent is that he has only a short period left of the
demise to him. It is necessary that there should be an expeditious hearing of
the appeal or that she be allowed to enjoy the remaining part of the demise. If
only to let the applicant feel that she has not been denied justice, we would
grant an extension of time in which she would stay in the premises. We give her
up to the end of June 1992 to have the appeal listed or to vacate the premises.
If by that date the appeal is not listed, the applicant is to vacate the
premises or the respondent is to take steps to enforce the judgment without any
reference to this court.<o:p></o:p>Costs
of ¢20,000 to the respondent.<o:p></o:p><o:p>&nbsp;</o:p>BROBBEY JA.
(sgd)<o:p></o:p><o:p>&nbsp;</o:p>KWAPONG J.
(sgd)<o:p></o:p>

<o:p>&nbsp;</o:p></main>