OPANYIN EDWARD AGYARKWA vs. JAMES FOLAGIN AND 4 OTHERS [2015]DLCA5336

Date	2015-10-20
Suit No.	SUIT NO.: H3/575/2015
Citation No.	[2015]DLCA5336

M. AGYEMANG (MRS) JA

[2015]DLCA5336
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													<main id="main" class="content" style="min-height: 60rem" >OPANYIN EDWARD
AGYARKWA<o:p></o:p>(PLAINTIFF / APPELLANT /
APPLICANT)<o:p></o:p>vs.<o:p></o:p>JAMES FOLAGIN
AND 4 OTHERS<o:p></o:p>(DEFENDANTS/RESPONDENTS/RESPONDENTS)<o:p></o:p>[COURT OF APPEAL (CIVIL
DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO.: H3/575/2015&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;20TH OCTOBER, 2015<o:p></o:p>

</div>CORAM: <o:p></o:p>M. AGYEMANG (MRS) JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormalCxSpMiddle" align="center" style="margin-bottom:0in;margin-bottom:
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0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>This is an application for a
stay of execution of the judgment of the High Court delivered on the 17th
day of February 2015 that dismissed the claims of the plaintiff/appellant/applicant,
and inter alia, decreed title to land
described by the defendants/respondents/respondents (respondents) as situate,
lying and being at Oyibi in the Greater Accra Region and bounded on the
Northeast by proposed road measuring 180.9 feet and 81.3 feet respectively,
more or less, on the east by lessor’s land measuring 97.3 feet more or less, on
the south-east by a proposed road measuring 98.4 feet more or less and containing
an approximate area of 0.58 acres or 0.24 hectares more or less.<o:p></o:p><o:p>&nbsp;</o:p>The repeat application which follows a part-refusal
of same at the court below, is supported by a twenty-one paragraph affidavit
sworn to by the present plaintiff/appellant/applicant (applicant) substituted
for the original plaintiff.<o:p></o:p>The matters canvassed in support of the application
are three-pronged: that the appeal has a great chance of success, that
execution of the judgment will create hardship, and furthermore that a
successful appeal may be rendered nugatory. <o:p></o:p>The argument on the success of the appeal is
premised on a number of matters. These include the fact that the learned trial
judge in dismissing the applicant’s claim and entering judgment on the respondents’
counterclaim, relied on a proposed amended statement of defence filed on behalf
of the fourth and fifth defendants which having been dismissed, was not in
evidence. It was submitted that this matter when brought to the attention of
the learned trial judge in the prior application for a stay of execution, resulted
in a partial grant of the application in respect of the fourth and fifth
defendants only, when it properly should have been a full grant, abiding the
result of the appeal. The learned trial judge is also alleged to have erred in her
reliance on a circuit court judgment to hold that the size of the plaintiff’s
land had been overblown to include the defendant’s land. This supposition
grounded a finding of fraud on the part of the applicant by the court below,
although fraud had neither been pleaded nor proved. In further argument on this
point, it was contended that the reliance on the circuit court judgment by the
court below to hold that the applicant’s land title certificate was defective was
also erroneous, and so was the order for cancellation of the land title
certificate, a relief that was never sought in the action.<o:p></o:p>The applicant also submitted that the failure to
grant the present application would render the pending appeal if successful,
nugatory, as the defendants will change the character of the land. This would cause
hardship to the community of which the plaintiff was head and for whom he held
the land in dispute. Indeed it was deposed that an attempt at execution of the
judgment by the second and third defendant’s had nearly resulted in violence at
the Adamorobe village.<o:p></o:p>The application was opposed by the second
defendants/respondents (respondents) for whom it was argued that no exceptional
circumstance had been demonstrated by the applicant seeking the grant of a stay
of execution. It was further argued that the balance of hardship rather tilted in
favour of the respondents who were, in possession of the disputed land. It was also
contended, relying on depositions contained in the affidavit in opposition, that
the applicants had razed down the buildings of the respondents and would suffer
more hardship if they were restrained from putting shelter over their heads
after the applicant’s act.<o:p></o:p>It was contended most strongly, that the appeal had
little chance of success, as the inclusion of the disallowed pleading of the
fourth and fifth defendants in the judgment was a mere oversight that did not
affect the integrity of the judgment. Learned counsel further argued that although
fraud was not pleaded, evidence of fraud was introduced into the evidence
without objection, and the court was right in considering same in arriving at
its conclusion which further resulted in the order of the cancellation of the
land title certificate. <o:p></o:p>Having heard counsel for and against the
application and having read the affidavits as well as the exhibits attached
thereto, it seems to me that this is a proper case for the grant of a stay of
execution and I grant same accordingly.<o:p></o:p>I am exercised in this by factors long settled that
must be considered in the grant of a stay of execution. These include the
important consideration that a victorious party must not lightly be deprived of
the fruits of his success on the one hand, and on the other, the serious
considerations of: whether or not the grant of a stay would render a successful
appeal nugatory, whether or not there exists an arguable point of law which
would speak to the likelihood of the appeal’s success, as well as the balance
of hardship on the parties should the application be granted or refused, see: Dzokoto
&amp; Amissah v. BBC Industrials Company Ltd and City Express Bus Ltd 2011 2
SCGLR 825; also NDK Financial Services Ltd v Yiadom Construction and Electrical
Works Ltd [2007-2008] SCGLR 93.In seeking to move the hand of the court
to exercise its discretion in its fa</main>