TONY ADAMS VS. ANANG SOWAH [2009]DLSC4570

Date	2009-01-14
Suit No.	CIVIL MOTION NO. J8/2/2009
Citation No.	[2009]DLSC4570

ATUGUBA J.S.C (PRESIDING)

ANSAH J.S.C.

OWUSU (MS) J.S.C.

ANIN YEBOAH J.S.C.

BAFFOE-BONNIE J.S.C.

OSAFO BUABENG FOR THE APPLICANT.

WISDOM ANTHONIO FOR THE RESPONDENT.

[2009]DLSC4570
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													<main id="main" class="content" style="min-height: 60rem" >TONY ADAMS<o:p></o:p>(EXECUTION
PURCHASER/APPLICANT/RESPONDENT/RESPONDENT)<o:p></o:p>VS.<o:p></o:p>ANANG SOWAH<o:p></o:p>(EXECUTION
DEBTOR/RESPONDENT/APPELLANT/APPELLANT/APPLICANT)<o:p></o:p>[SUPREME
COURT, ACCRA]<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 MOTION NO. J8/2/2009&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: 14TH JANUARY, 2009<o:p></o:p>

WISDOM
ANTHONIO FOR THE RESPONDENT.<o:p></o:p>

</div>ATUGUBA, J.S.C:&nbsp; <o:p></o:p>The
Defendant-appellant-applicant (hereinafter called the execution debtor) applies
to this court "for the stay of execution of the order for delivery of
possession of H/No 6C 153/29, East Legon, Mpeasem, Accra and or suspension of
the enforcement of the said order for delivery of possession."&nbsp; <o:p></o:p>It
will be seen from the formulation of this application that the alternative form
of the order, it is a mere variation of language; it is aimed at the same
relief, namely, stay of execution of the order for delivery of possession of
the house in question.<o:p></o:p>The
salient parts of the supporting affidavit are as follows:<o:p></o:p>"(2) That some time in 1997, one
Amarkai Amarteifio, a lawyer by profession of Ayawaso Chambers, Osu, Accra,
issued a writ against the applicant claiming an amount of £35,000 as
professional fees and financing assistance rendered to the applicant who has
been outside the jurisdiction at all material times.<o:p></o:p>(3) That pursuant to a judgment in
default of appearance, the said Amarkai Amarteifio proceeded to cause a
judicial sale of the applicant's house at Mpeasem, East Legon, Accra.<o:p></o:p>(4) That the respondent herein
purportedly acquired the said property at an auction sale and proceeded to
obtain an order directed against the applicant, his personal representatives
and assigns, to deliver vacant possession of the said property to him.<o:p></o:p>(5) That being aggrieved, the
applicant appealed against the said order for delivery of vacant possession to
the Court of Appeal.&nbsp; The said appeal was
on 17 July 2008, dismissed with costs of GH¢2,000.&nbsp; A copy of the judgment is attached and
exhibited as AS.<o:p></o:p>(6)&nbsp;
That being aggrieved, the applicant has appealed to this honourable
court as per the attached notice of appeal exhibited as AS1. <o:p></o:p>(12) That an earlier application to the
Court of Appeal was dismissed on 20 October 2008.&nbsp; A copy of the order dismissing same would be
exhibited on receipt.<o:p></o:p>(13) That even though the judgment of
the Court of Appeal is not executory in the strict sense, this honourable court
has the jurisdiction to ensure that the said order for delivery of vacant
possession is heard in the appeal, in the interest of justice."<o:p></o:p>The
relevant rule of this court on stay of execution is rule 20 of the Supreme
Court Rules, 1996 (CI 16).&nbsp; It provides
as follows:<o:p></o:p>"20. Effect of appeal<o:p></o:p>(1)&nbsp;
A civil appeal shall not operate as a stay of execution or of
proceedings under the judgment or decision appealed against except in so far as
the Court or the Court below may otherwise order. (The emphasis is ours).<o:p></o:p>(2) Subject to these Rules, and to any
other enactment governing appeals, an application for stay of execution or of
proceedings shall first be made to the Court below and if that court refuses to
grant the application, the applicant may repeat the application before the Court
for determination."<o:p></o:p>This
rule is not sui generis.&nbsp; It is a carry
over from earlier rules of the Supreme Court, namely, rule 27 of the Supreme
Court Rules, 1962 (LI 218). It has received construction by this court.&nbsp; In Takyi v Ghassoub (Ghana) Ltd [1987-88] 2
GLR 52, SC this rule was unanimously interpreted as referring to the execution
or steps leading to the execution of a judgment.&nbsp; In recent times there have been dicta in this
court that by reason of article 129(4) of the Constitution and also the alternative
part of rule 20(1), a stay can be ordered by this court of proceedings that do
not relate to execution of the judgment appealed from.&nbsp; <o:p></o:p>On
reflection, we respectfully think that is possible but such proceedings should
be in respect of proceedings that stand to be taken by reason of the terms of
the judgment appealed from, eg an order that damages be assessed, </main>