SWEATER & SOCKS FACTORY LTD vs. THE ATTORNEY-GENERAL AND 7 OTHERS [2014]DLCA5133

Date	2014-03-20
Suit No.	CIVIL APPEAL NO. H1/49/2014
Citation No.	[2014]DLCA5133

MARFUL-SAU JA (PRESIDING)

ACQUAYE JA

SAEED K. GYAN JA

CYNTHIA OPARE FOR THE 6TH DEFENDANT/APPELLANT

G.H. QUIST FOR THE PLAINTIFF/RESPONDENT

[2014]DLCA5133
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													<main id="main" class="content" style="min-height: 60rem" >SWEATER &amp; SOCKS FACTORY LTD<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>THE ATTORNEY-GENERAL AND 7 OTHERS<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNoSpacing" align="center" style="margin-left:.5in;text-align:center;
text-indent:-.5in;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL APPEAL NO.
H1/49/2014&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: 20TH
MARCH, 2014<o:p></o:p>

</div>COUNSEL:<o:p></o:p>CYNTHIA OPARE FOR THE 6TH
DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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G.H.
QUIST FOR THE PLAINTIFF/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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MARFUL-SAU
JA (PRESIDING), ACQUAYE JA, SAEED K. GYAN JA<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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JUDGMENT<o:p></o:p>

</div>MARFUL-SAU, JA:<o:p></o:p>This appeal is against the
ruling of the High Court, Accra dated the 17th December 2012.&nbsp; The parties in this case for some years have
been engaged in various legal proceedings in court.&nbsp; This particular appeal can be traced to the
decision of the High Court dated the 8th of April 2003.<o:p></o:p>From the record, it seems
the judgment of 8th April 2003 which was delivered by Inkumsah Abban
J, was subjected to further process of the court and a final decision delivered
by Elizabeth Ankumah J. on the 16th May 2012.&nbsp; Consequently at page 49 of the record of
appeal is a copy of the Entry of Judgment after Trial which is a composite of
the two decisions of the High Court.<o:p></o:p>The record also revealed
that after the judgment of 8th April 2003, three of the defendants
namely the 1st defendant, Attorney General, 3rd defendant,
African Bags Co. Ltd and 8th defendant, Golden Tower Ltd appealed
against the judgment.&nbsp; Then on the 15th
June 2004, Ayebi J. (as then was) granted an application for stay of execution
and ordered that all tenants in possession of the premises No. 57 &amp; 58 North
Industrial Area, Accra paid rent into court.&nbsp;
The said order of Ayebi J. (as he then was) is at page 145 of the record
of appeal.&nbsp; Pursuant to this order the
defendants started paying rent into court.<o:p></o:p>The appeal referred to above
which led to Ayebi J ordering stay of Execution was eventually struck out and
the plaintiff/respondent in this appeal applied for leave to recover possession
of the premises.&nbsp; Upon leave being granted
by the High Court for the plaintiff/respondent to recover possession, the appellant
herein who was the 6th defendant in the original proceedings in
which judgment was entered on 8th April 2003, filed an application
for stay of execution invoking order 43 R 11 of&nbsp;
C1 47.<o:p></o:p>The background to the 6th
defendant/appellant’s application under order 43 R 11 of C1 47 was that while
the appeal was pending it had negotiated with the plaintiff/respondent to
purchase its interest in the property the subject matter of the dispute and
paid an amount of US$120,000 out of an agreed purchase price of US$500,000.&nbsp; The 6th defendant/appellant
therefore argued that since it had paid money to acquire the property from the plaintiff/respondent
it will be wrong for the court to order recovery of possession against the 6th
defendant/appellant. <o:p></o:p>The motion for Stay of
Execution filed by the 6th defendant/appellant was opposed by the
plaintiff/respondent and same was argued extensively by both counsel.&nbsp; The arguments for and against the motion are
at pages 34 to 39 of the record.&nbsp; After
hearing Counsel, the court on that same day, 20th February 2012,
granted the stay holding as follows:<o:p></o:p>BY
COURT:<o:p></o:p>“That
is not where I am looking.&nbsp; You have
collected monies; you have issued receipts stated on the receipts that is for a
lease.&nbsp; If you have done that then why do
you come back to say that you want to throw them out.&nbsp; If they are for rent it should be stated
clearly; rent for November, December, January etc but you just stated it is a
lease.&nbsp; You better go back and refund the
money otherwise whatever agreement you entered in for which you receive those
monies you must comply.&nbsp; Application
granted.&nbsp; The execution to be levied
against the 6th defendant is hereby stayed until further notice
because of new revelations.&nbsp; The property
is yours but you have to go back and refund the money.&nbsp; If they are rent go and sit down take the
rent out whatever is not for you, either you will carry them forward to offset
further rent.”<o:p></o:p>The plaintiff/respondent
did not appeal against the ruling but then on the 24th September
2012 it filed a motion to compel the 6th defendant/appellant to pay
rent into court.&nbsp; The motion was argued
by Counsel for plaintiff/respondent in the absence of the 6th
defendant and his counsel who though served were absent.&nbsp; The court after hearing Coun</main>