CONSTANCE GYANTUAH vs. AGNES BAAWAMIA [2015]DLCA8014

Date	2015-07-28
Suit No.	SUIT NO.: H3/510/2015
Citation No.	[2015]DLCA8014

M. AGYEMANG (MRS) JA - SINGLE JUDGE

MR. SIMON OKYERE FOR RESPONDENT

MR. SEAN POKU THE APPLICANT

[2015]DLCA8014
																																						<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" >CONSTANCE GYANTUAH<o:p></o:p>(PLAINTIFF/RESPONDENT/RESPONDENT)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p>AGNES BAAWAMIA<o:p></o:p>(DEFENDANT/APPELLANT/APPLICANT)<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;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO.: H3/510/2015&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;DATE: 28TH JULY, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR. SIMON OKYERE FOR RESPONDENT <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">

MR. SEAN POKU THE APPLICANT<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;
padding:0cm 0cm 1.0pt 0cm">

M. AGYEMANG (MRS) JA -
SINGLE JUDGE<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;
padding:0cm 0cm 1.0pt 0cm">

RULING<o:p></o:p>

</div>This
is a ruling in respect of an application for the extension of the duration of
an order for stay of execution made by this court on 10th February
2015 which order was made to last for six months – until 30th June
2015.<o:p></o:p>The
application is supported by a nine-paragraph affidavit sworn to by Sean Kojo Poku,
one of the solicitors for the applicant who deposed that he had the authority
and consent of the defendant/appellant/applicant (referred to as the
applicant), so to do.<o:p></o:p>According
to the deponent, upon a judgment in a suit brought by the plaintiff/respondent/respondent
against the applicant and two others at the High Court, this court presided
over by Kanyoke JA on the 10th of February 2015, granted a stay of execution
pending appeal upon terms, being that it would be valid for six months, lapsing
on the 30th of June 2015. The duration was fixed with regard to the
period the appeal would be prosecuted and disposed of by this court in the
matter.<o:p></o:p>According
to the deponent, despite the feverish pursuit of the compilation and
reproduction of the record to enable same to be transmitted to this court, Form
6 has not been issued to enable the parties file their written submissions. He
deposed that the delay in the compilation was the result of some of the
documents being misplaced. Matters now having been resolved, the record had
been forwarded to the Registrar for proof-reading, towards the issuance of the
Form 6. Furthermore, a draft written submission had been concluded and same was
attached to the affidavit.<o:p></o:p>Deposing
that the circumstances of the case, as well as the judgment raised serious
questions of law for the determination of this court, he thus prayed the court
to extend the duration of the order for a stay of execution.<o:p></o:p>In
argument, learned counsel argued that the learned Kanyoke JA, sitting as single
judge of this court found that both parties had some claim to the land in
dispute. He contended that the applicant had been in possession of the land for
a long time and the single judge of this court took cognisance of that and the
efforts being made by the applicant to have the appeal heard, to make the order
limiting the duration of the order for stay of execution for six months.&nbsp; He reiterated that the delay in bringing the
appeal to a hearing was not caused by the applicant who desirous of having the
appeal heard, had done everything to fulfil the conditions. Thus did he pray
that the application be granted and time extended for a further period.<o:p></o:p>The
application was strongly opposed by the plaintiff/respondent/respondent (referred
to as the respondent) who authorised a ten-paragraph affidavit to be sworn to
by one Simon Okyere of Accra on her behalf.<o:p></o:p>According
to the said deponent, in the application that secured a six-month stay of
execution, the respondent had deposed that the appeal did not disclose any
arguable point of law, besides which the balance of hardship was in favour of
the respondent.<o:p></o:p>He
deposed further that the purpose of the six-month limit ordered by the court
was to enable the applicant to secure alternative accommodation while also
giving the plaintiff/respondent time to prepare herself properly to relocate to
Ghana by the 30th of June 2015.<o:p></o:p>Learned
counsel for the respondent in response to the arguments of opposing counsel,
contended that this application was in essence an application for a stay of
execution requiring the demonstration of an exceptional circumstance that would
entitle the applicant to the grant sought. He contended furthermore that the
balance of hardship lay in favour of the respondent who had been kept from
relocating to Ghana to live in a dwelling house she constructed until now and
had been put to expense by reason of her enforced extended stay abroad. Denying
that the applicant had pursued the appeal with diligence, he contended that the
very receipts attached to the affidavit filed in support belied the assertion
that feverish efforts had been made by the applicant to prosecute the appeal.<o:p></o:p>On
the 20th of July 2015, I granted the application seeking an
extension of the duration of the order for the stay of execution and reserved
my reasons for so doing. I give them now.<o:p></o:p>