YAW OPPONG vs. CHARLES ANARFI [2011]DLHC8268

Date	2011-03-26
Suit No.	SUIT NO. E12\|249\|06
Citation No.	[2011]DLHC8268

HIS LORDSHIP MR. JACOB B. BOON

YAW BOAFO FOR APPLICANT

NANA ADWOA KOOMSON FOR RESPONDENT

[2011]DLHC8268
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													<main id="main" class="content" style="min-height: 60rem" >YAW OPPONG<o:p></o:p>vs.<o:p></o:p>CHARLES ANARFI<o:p></o:p>[HIGH COURT,
KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. E12|249|06&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; &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:
26TH MARCH, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>YAW BOAFO FOR APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

NANA
ADWOA KOOMSON 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;
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HIS LORDSHIP MR. JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>The
applicant herein sued the respondent in the Kumasi High Court, but judgment was
entered in favour of the respondent. Aggrieved by this decision, the applicant
appealed to the Court of Appeal where the judgment was reversed in his favour.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent was also dissatisfied with the Court of Appeal’s decision and filed
an appeal at the Supreme Court. To enable him prosecute the said appeal he
applied for stay of execution of the decision of the Court of Appeal. The Court
of Appeal allowed the application on terms. That compromised decision was in
the following terms:<o:p></o:p>“The Defendant/Applicant is enabled to remain in possession
of the property on condition that he expedites the preparation of the record so
that if by 10th October, 2009 the proceedings are not forwarded to
the Supreme Court then the order for stay of execution lapses without any
further order. The Defendant/Applicant shall pay to the Plaintiff/Respondent
the sum of GH¢ 2,000.00 one month from today, ie, on or before 21/08/09. In the
result the application is granted on terms”<o:p></o:p><o:p>&nbsp;</o:p>The
Court of Appeal’s order was made on 22nd July, 2009. However, a
search conducted at the Registry of the Court of Appeal indicated the respondent
had satisfied the conditions of appeal on 17th June, 2009, even
before the motion for stay of execution was moved and granted. It was not also
disputed that the respondent paid to the applicant the sum of GH¢2,000.00 as
ordered by the Court of Appeal as part of the terms of the decision to stay
execution of its judgment. Though the respondent met the conditions of appeal,
the proceedings were not forwarded to the Supreme Court in compliance with the
order of the Court of Appeal that they should be so done by the 10th
of October, 2009. Having satisfied himself that the record was not transmitted
to the Supreme Court by this date, the applicant went into execution of the
judgment entered for him by the Court of Appeal. As the subject matter of
litigation was a house then in occupation by the respondent and his family, in
furtherance of the execution the respondent and his family were ejected from
the property.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent brought an application before this court praying for an order to set
aside the execution, and a further order to restore him in the property. The
prayers of respondent were granted on 09/02/10.<o:p></o:p><o:p>&nbsp;</o:p>It is
the decision of the court setting aside the execution that is now under attack
by the applicant on the foremost ground that the court had no jurisdiction to
make such an order because the respondent did not comply with the terms of the
stay of execution by failing to forward the record of proceedings to the
Supreme Court by the date ordered by the Court of Appeal.<o:p></o:p><o:p>&nbsp;</o:p>In
arguing the motion, counsel for the applicant asserted that the main issue that
needed to be resolved was the import of the order by the Court of Appeal when
it granted the stay of execution on terms. He contended that the import of the
order was to prevent the respondent from going to sleep after the stay was
granted, but instead to ensure that the appeal was expeditiously heard by the
Supreme Court. He further contended that if for any reason,</main>