PRINCE WILLIAM TAGOE vs. ALBERT G. K. ACQUAH [2009]DLSC2721

Date	2009-03-11
Suit No.	CIVIL APPEAL NO. J4/24/2008
Citation No.	[2009]DLSC2721

BROBBEY J.S.C. (PRESIDING)

ANSAH J.S.C.

ADINYIRA J.S.C.

DOTSE J.S.C.

ANIN YEBOAH J.S.C.

OSAFO BUABENG FOR THE APPELLANT

G. R. KWAME AYEH FOR THE RESPONDENT.

[2009]DLSC2721
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >PRINCE WILLIAM TAGOE<o:p></o:p>vs.<o:p></o:p>ALBERT G. K. ACQUAH<o:p></o:p>[SUPREME
COURT]<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">

CIVIL
APPEAL NO. J4/24/2008&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 11TH MARCH,
2009.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>OSAFO
BUABENG 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">

G.
R. KWAME AYEH FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&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">

BROBBEY
J.S.C. (PRESIDING), ANSAH J.S.C., ADINYIRA J.S.C., DOTSE J.S.C., ANIN YEBOAH
J.S.C.<o:p></o:p>

</div>J U D G M E N T<o:p></o:p>ANIN
YEBOAH, J.S.C.:-<o:p></o:p>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.&nbsp; It was the case of the respondent
that he owned the property in dispute and leased same to the appellant for an
agreed rent.&nbsp; According to the Appellant,
the respondent ceased paying rent in 1999.&nbsp;
He therefore commenced the action for recovery of possession and rent
arrears.<o:p></o:p>The
appellant controverted the facts and strongly denied the title of the
respondent.&nbsp; 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.&nbsp; He therefore claimed that the agreement divested
the appellant of his ownership of the house.<o:p></o:p>The
learned Circuit Court judge raised one crucial issue of who was the owner of
the property to be resolved by him.&nbsp; 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.&nbsp; 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.&nbsp; Being dissatisfied with the judgment, the
appellant lodged an appeal to the Court of Appeal.&nbsp; He filed a motion for stay of execution at
the Court of Appeal which was refused on the 4/12/2007.&nbsp; 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.<o:p></o:p>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.&nbsp;
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.<o:p></o:p>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.<o:p></o:p>What
is before this court is an appeal against the refusal of the Court of Appeal to
grant the motion for stay of execution.&nbsp;
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.&nbsp; The
Appellate Court which is this court is not to substitute its own discretion for
the Court of Appeal.&nbsp; It therefore
behoves the appellant to demonstrate convincingly that the discretion was not
judiciously exercised, to warrant our intervention.&nbsp; 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.&nbsp; 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.&nbsp;&nbsp; See DZOBO V AGBEBLEWU [1991] IGLR 294 and
JOSEPH V JEBEILE [1963] IGLR 387 SC.<o:p></o:p>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.&nbsp; 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.&nbsp; 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.&nbsp;
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.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>ANIN
YEBOAH<o:p></o:p>(JUSTICE
OF THE SUPREME COURT)<o:p></o:p>&nbsp;<o:p></o:p>I
agree<o:p></o:p>S.
A. BROBBEY<o:p></o:p>(JUSTICE
OF THE SUPREME COURT)<o:p></o:p>&nbsp;<o:p></o:p>I
agree<o:p></o:p>J.
ANSAH<o:p></o:p>