EBUSUAPANYIN AKUMA MENSAH vs. LANDS COMMISSION, APOSTOLIC FAITH MISSION, WOFA YAW AND ASARE K. BOADI [2015]DLCA8043

EBUSUAPANYIN AKUMA MENSAH vs. LANDS COMMISSION, APOSTOLIC FAITH MISSION, WOFA Y... [2015]DLCA8043

Date	2015-02-12
Suit No.	SUIT NO.: H3/69/2015
Citation No.	[2015]DLCA8043

OFOE JA (PRESIDING)

ADUAMA OSEI JA

WELBOURNE (MRS.) JA

[2015]DLCA8043
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													<main id="main" class="content" style="min-height: 60rem" >EBUSUAPANYIN
AKUMA MENSAH<o:p></o:p>(PLAINTIFF/APPELLANT/&nbsp;&nbsp; RESPONDENT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>LANDS COMMISSION, APOSTOLIC
FAITH MISSION, WOFA YAW AND ASARE K. BOADI<o:p></o:p>(DEFENDANTS/RESPONDENTS/
APPELLANTS/APPLICANTS)<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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SUIT NO.: H3/69/2015&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;DATE: 12TH FEBRUARY, 2015<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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OFOE JA (PRESIDING),
ADUAMA OSEI JA, WELBOURNE (MRS.) JA<o:p></o:p>

</div>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div>ADUAMA OSEI JA:<o:p></o:p>On
the 15th of July, 2014, the Defendants/Respondents/ Appellants/Applicants,
hereinafter called “the Applicants”, filed an appeal to the Supreme Court
against a judgment of this Court. They followed up the Notice of Appeal with an
application for stay of execution of the said judgment. That application was
heard by a single judge of this Court on the 10th of November, 2014
under article 138 of the 1992 Constitution and it was dismissed as having no
merit.<o:p></o:p><o:p>&nbsp;</o:p>The
Applicants have come back to this Court under article 138(b) of the
Constitution praying the Court, as duly constituted, to discharge the order
made by the single judge on the 10th of November, 2014. From the
affidavit supporting the application, the reason why the Applicants want to
have the order of the single judge discharged is that, having regard to the
law, the affidavit evidence they placed before the single judge entitled the
Applicants to a grant of stay of execution. In moving the application their
Counsel has submitted that the single judge refused the application because he
failed to appreciate the “nugatory principle” that guides the grant of
applications for stay of execution.<o:p></o:p><o:p>&nbsp;</o:p>The
Plaintiff/Appellant/Respondent/Respondent, hereinafter called “the Respondent”,
is opposing the application. He has noted in his affidavit that rule 20(2) of
the Supreme Court Rules, CI 16, deals specifically with the course open to an
appellant from the Court of Appeal to the Supreme Court whose application in
the Court of Appeal for a stay of execution fails. He has contended that since
rule 20(2) of CI 16 is a specific provision, it overrides any general provision
elsewhere, including article 138(b) of the Constitution.<o:p></o:p><o:p>&nbsp;</o:p>Article
138(b) of the 1992 Constitution is in the following words:<o:p></o:p><o:p>&nbsp;</o:p>“<st1:metricconverter productid="138. A" w:st="on">138. A</st1:metricconverter> single justice of the Court of Appeal
may exercise a power vested in the Court of Appeal not involving the decision
of a cause or matter before the Court of Appeal, except that –<o:p></o:p>&nbsp;<o:p></o:p>“….. (b) in civil matters, any order,
direction or decision made or given in exercise of the powers conferred by this
article, may be varied, discharged&nbsp; or
reversed by the Court of Appeal as duly constituted”. <o:p></o:p><o:p>&nbsp;</o:p>There
is no question, from the above-quoted provision that where, under article 138
of the Constitution, a single justice of this Court exercises the power vested
in the Court, the Court as duly constituted has jurisdiction to vary, discharge
or reverse the order of the single justice. It is true that by rule 20(2) of CI
16, where an application for a stay of execution is refused by this Court, the
Applicant is entitled to repeat the application before the Supreme Court for
determination. Rule 20(2) of CI 16 provides for what an applicant may do where
his application to this Court for a stay of execution fails. It does not
however concern itself with the stages the application before this Court may
have to pass through before it can be said to have failed. It does not concern
itself with the constitution of the Court that heard the failed application.
Clearly, it all depends on whether the failed application was placed before the
duly constituted Court in the first instance, or placed before a single justice
under article 138. <o:p></o:p><o:p>&nbsp;</o:p>In
my view, where the earlier application was heard by the duly constituted Court,
the course available to the failed applicant is to repeat his application
before the Supreme Court. Where, however, the earlier application was heard by
a single justice under article 138 of the Constitution, then before considering
whether or not to repeat his application before the Supreme Court, the failed
applicant is entitled to resort to any other powers vested in this Court under
the said article. Once it is not being argued that the single justice did not
have jurisdiction to hear the failed application, it cannot be properly argued
that the provision of the article that empowers this Court to vary, discharge
or reverse the order of the single justice does not avail the failed applicant.
Also, I do not consider the suggestion by the Respondent in this application
that rule 20(2) of CI 16 overrides article 138(b) of the Constitution a serious
one. CI 16 is a subsidiary legislation and it is inconceivable that any
constituti</main>