N. B. LANDMARK LIMITED vs. KISHINI LAKHANI [2001]DLSC2368

Date	2001-02-21
Suit No.	CA 1/2000.
Citation No.	[2001]DLSC2368

AMPIAH JSC (PRESIDING)

KPEGAH JSC

ADJABENG JSC

ACQUAH JSC

ATUGUBA JSC

SAMMY ADDO FOR THE APPELLANT

AMEGATCHER FOR RESPONDENT WITH HIM MISS ABU MARY F. AVORKAH

[2001]DLSC2368
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													<main id="main" class="content" style="min-height: 60rem" >N. B. LANDMARK LIMITED<o:p></o:p>vs.<o:p></o:p>KISHINI LAKHANI<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CA
1/2000.<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: 21st
February 2001.<o:p></o:p>

</div>COUNSEL<o:p></o:p>SAMMY
ADDO FOR THE APPELLANT<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">

AMEGATCHER
FOR RESPONDENT WITH HIM MISS ABU MARY F. AVORKAH<o:p></o:p>

</div>CORAM:&nbsp;&nbsp; <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
JSC (PRESIDING), KPEGAH JSC, ADJABENG JSC, ACQUAH JSC, ATUGUBA JSC.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>ACQUAH,
JSC:<o:p></o:p>This
is an appeal against the decision of the Court of Appeal granting a stay of
execution of the ruling of the Circuit Court, Accra dated 24th September, 1998.
This ruling of the Circuit Court refused an application to set aside its
decisions of 2nd November 1998. The grounds of appeal as set out in the Notice
of Appeal are:<o:p></o:p>(a)&nbsp;
The Court of Appeal erred in law when stay of execution of the Circuit
Court judgment was in effect granted when there was an appeal against it.<o:p></o:p>(b)&nbsp;
The Court erred in law when it refused to uphold that service of hearing
notices on solicitors under the circumstances of this case amounted to service
on the respondent.<o:p></o:p>(c)&nbsp;
The Court erred in law and in contravention of the constitution when it
refused to be bound by its previous decision which distinguishes between
judgment that could be set aside and judgment that ought to be appealed
against.<o:p></o:p>(d)&nbsp;
The Court erred when it sustained an application for stay of execution
based on appeal against the refusal of the Circuit Court to set aside its
judgment when the grounds to set aside were based on misapplication of law.<o:p></o:p>(e)&nbsp;
The Court erred in ruling on assessment of rent when the issue was not
before it.<o:p></o:p>(f)&nbsp;
Further grounds of appeal would be filed upon receipt of the records of
proceedings.<o:p></o:p>No
further grounds of appeal were filed.<o:p></o:p>The
brief facts are that the plaintiff issued a writ of summons at the Circuit
Court, Accra against the defendant for<o:p></o:p>(a) Recovery of Possession and/or ejection
order in respect of shop No. 1 &amp; 2, Property No. D684/4 Knutsford Avenue
Accra.<o:p></o:p>(b)&nbsp;
Mesne profit from November 1997<o:p></o:p>On
2nd November 1998, the Circuit Court entered judgment for the plaintiff against
the defendant, who though served, did not attend the hearing. The Court in its
judgment ordered the defendant to vacate and yield up vacant possession of the
premises to the plaintiff, and adjourned proceedings to the 24th November 1998
for the assessment of economic rent to be paid by the defendant from November
1997 up to the date of judgment.<o:p></o:p>The
defendant moved the Circuit Court to set aside this judgment but the Court
refused the application. He therefore filed an appeal on 30th November 1998 to
the Court of Appeal against the refusal, and followed this up with an
application for stay of execution of the order refusing to set aside the
judgment. The application for stay was also dismissed. He repeated the
application at the Court of Appeal which granted same on 24th March, 1999 in
the following language:<o:p></o:p>"We think the appellant had
demonstrated she has very serious legal question to raise on appeal. We would
thus allow the application subject to the applicant paying rent assessed by the
Land Valuation Board effective from the date of decision of the court
below".<o:p></o:p>It
is this ruling which is the subject of this appeal.<o:p></o:p>In
his statement of case the appellant raises in his paragraph 8 thereof, that the
discretion of stay of execution has not been properly granted and that the
issue of rent was not a subject matter of the appeal before the Court. And
again in paragraph 11 that "the appeal before the Court of Appeal for
which the stay was granted is in respect of the trial Court's refusal to set
aside its judgment" and not the substantive judgment of 2nd November 1999.<o:p></o:p>In
my view, by the above two submissions, the appellant challenges the propriety
of the Court of Appeal's grant of stay of execution vis-à-vis the judgment in
respect of which the appeal was lodged and on which the application for stay of
execution was dependent.<o:p></o:p>In
the respondent's statement of case, he contends that the Court of Appeal had
power under Rule 31 of CI. 19 to make the interim order it did.<o:p></o:p>Now
it is trite learning that an application for stay of execution, presupposes
that the order or decision in respect of which the </main>