KWABENA APPIAH vs. REV EDMOND LAYEA ADJIE [2007]DLSC2443

Date	2007-11-28
Suit No.	Civil Appeal No.J4/28/2006
Citation No.	[2007]DLSC2443

Miss Akuffo J.S.C. (Presiding)

Brobbey J.S.C.

Aninakwah J.S.C.

Mrs. Adinyira J.S.C.

Asiamah J.S.C.

ADJABENG AKRASI FOR APPELLANT

VICTOR OCANSEY FOR RESPONDENT

[2007]DLSC2443
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													<main id="main" class="content" style="min-height: 60rem" >KWABENA APPIAH<o:p></o:p>vs.<o:p></o:p>REV EDMOND LAYEA ADJIE<o:p></o:p>[SUPREME
COURT]<o:p></o:p>Civil
Appeal No.J4/28/2006<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: 28th November, 2007.<o:p></o:p>

</div>COUNSEL<o:p></o:p>ADJABENG
AKRASI FOR 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">

VICTOR
OCANSEY FOR 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">

Miss
Akuffo &nbsp;J.S.C. (Presiding), Brobbey &nbsp;J.S.C., Aninakwah &nbsp;J.S.C., Mrs. Adinyira &nbsp;J.S.C., Asiamah J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>REASONS FOR JUDGMENT<o:p></o:p>Sophia A. B. Akuffo, J.S.C.:<o:p></o:p>On
16th October 2007, this Court unanimously allowed the Appellant’s appeal herein
and reserved its reasons for delivery today. The reasons for our judgment are
as follows:-<o:p></o:p>Background<o:p></o:p>The
genesis of this appeal is that, sometime in or about the year 2002, the
Respondent, who is the Pastor of a Church known as the Bethel Praise Ministries
International, sold to the Appellant a piece of land situate at McCarthy Hill,
Accra. No formal documents were executed evidencing the sale but the fact of
the sale is not disputed by either party. The Appellant made a down-payment of
¢120,000,000.00, in respect of which the Respondent issued to him a receipt
dated 8th January 2002. According to the Appellant, very shortly after making
the said payment, he discovered that the Respondent had previously sold the
same piece of land to another person, Construction Pioneers Company Limited.
He, therefore, demanded a refund of the said down-payment, less ¢20,000,000.00,
which he asked the Respondent to keep. The Respondent having failed to make the
refund as demanded, the Appellant, issued a writ against him in the High Court
(suit No. C1098/02) for the recovery of the said down-payment. By a summary
judgment entered on 21st March 2003, the court found in favour of the Appellant
on his claim and adjudged the Respondent liable to him in the full amount of
¢120,000,000.00 together with interest thereon at the prevailing bank rate,
plus costs of ¢6,000,000.00. The Appellant, therefore, filed an entry of
judgment for the recovery of a total sum of ¢181,500,000.00, whereupon the
Respondent herein, on April 2nd 2003 applied to the High Court for orders of
stay of execution and payment by instalments. By his affidavit in support of
that application, the Respondent undertook to pay an amount of ¢40,000,000.00
by 30th April, 2003 and settle the remaining balance within 6months. (This
affidavit is of particular interest because, in other paragraphs, the
Respondent herein deposed to the fact that at the time of the purported sale,
the land was already in the possession of a Lessee who had promised to
surrender the lease to him, and that the said Lessee had failed to surrender
the land and had, rather, sought to sell the same to another person.)<o:p></o:p>It
appears that the Appellant herein did not oppose the application for stay and
payment by instalments and the court granted the application on 4th May 2003.
However, as admitted by the Respondent in an affidavit sworn to on 18th July
2003, the parties, after the grant of the court’s orders, executed certain
Terms of Settlement, dated 19th May 2003, whereby it was agreed that the
judgment debt would be paid in the following manner:- <o:p></o:p>a. the Respondent herein will pay an
amount of ¢60,000,000.00 by Bankers’ Draft to the Appellant on or before 31st
May 2003<o:p></o:p>b. the remaining balance, being
¢121,500,000.00, shall attract interest at the rate of 35% for a period of 5
months and shall be paid in 5 equal monthly instalments by bankers’ draft on
the last Thursday of June, July, August, September and October 2003.<o:p></o:p>c. In the event of any default, the
balance outstanding at the time shall become immediately due and payable and
the Appellant could, with leave of the court levy execution.<o:p></o:p>As
it transpired, the Respondent failed to make the initial payment, whether that
undertaken in his affidavit in support of the application or that agreed to be
paid under the Terms of Settlement. Indeed he did not make any payments at all
until 1st December, 2003 when he paid the paltry amount of ¢15,000,000.00 to
the Appellant’s solicitor in partial settlement of the judgment debt. Shortly
thereafter, the Respondent, by a motion filed 4th December 2003, applied to the
High Court for an order varying the Terms of Settlement. As is apparent from
pages 21 and 25 of the Record of Appeal, the learned High Court Judge dismissed
the application on grounds of jurisdiction, without allowing the same to be
moved. Whereupon, the Respondent, filed a notice of appeal against the refusal
and then applied for a stay of execution pending appeal. That application was
dismissed by the High Court on 29th January 2004. The Respondent then repeated
the same before the Court of Appeal, which, on 24th February 2004 granted the
application for stay of execution. The appeal herein is against the Court of
Appeal’s decision granting the Respondent’s application for stay of execution
pending appeal.<o:p></o:p>Analysis<o:p></o:p>We
have taken the trouble to present, in some extensive detail, the background of
this matter so as to highlight the fact that the Respondent herein has never
appealed against the summary judgment of the High Court that granted the
Appellant’s claims. The appeal that is pending before the Court of Appeal, in
respect of which the said court granted the Respondent’s prayer for stay of
execution, is merely against the High Court judge’s refusal to assume
jurisdiction to vary the terms of the settlement arrived at by the parties.
Thus, although the Appellant in his notice of appeal herein set up no less than
six grounds, in our view, the fundamental ground is that set out in ground (b)
that:-<o:p></o:p>“The Learned Justices at the Court of
Appeal erred in ordering a stay of execution when the ground for appeal i.e.
decline of jurisdiction by the High Court Judge for being functus officio on
18/12/03 was neither an executable nor speaking act warranting a stay.”<o:p></o:p>As
was pointed </main>