NII LANTE MILLS vs. MILDRED AMA WOODE [2015]DLCA8419

Date	2015-03-10
Suit No.	SUIT NO.: H3/563/2015
Citation No.	[2015]DLCA8419

M. AGYEMANG (MRS) JA

[2015]DLCA8419
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													<main id="main" class="content" style="min-height: 60rem" >NII LANTE MILLS<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>MILDRED AMA WOODE<o:p></o:p>(DEFENDANT
/ APPELLANT / APPLICANT)<o:p></o:p><o:p>&nbsp;</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.:&nbsp;
H3/563/2015&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;DATE: 20TH OCT, 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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M. AGYEMANG (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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<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>This is a ruling in respect of a repeat application
for stay of execution of the judgment of the High Court dated 10th
of April 2014. The application is supported by a sixteen-paragraph affidavit
sworn to by the defendant/appellant/applicant (applicant).<o:p></o:p>According to the deponent, the
plaintiff/respondent/respondent (respondent) obtained judgment against her at
the High Court in respect of land of which she was in possession. <o:p></o:p>The main arguments canvassed on behalf of the
applicant were that the applicant’s appeal had a good chance of success as it
was her case that she was a bona fide purchaser for value without notice. It
was contended that due to the respondent’s penchant to pull down the
applicant’s structures, the respondent was likely to pull down the structure
she had on the land or worse, sell the land to a third party, a circumstance
that would not only create hardship, but also render a successful appeal
nugatory.<o:p></o:p>Learned counsel for the respondent in response
raised a preliminary point of objection to the application. In his submission,
the present application was incompetent as the motion paper was signed not by
learned counsel duly identified by his solicitor’s license number, but by a
firm name which was unknown to our courts. He submitted that the use of a firm
name as solicitor rather than a lawyer whose name was on the roll of lawyers
rendered the entire process incompetent, as was held by the Supreme Court in Republic
v. High Court, Ex parte Teriwajah&nbsp; (Reiss
and Co. Interested parties),
that a process filed by a lawyer without a solicitor’s licence was incompetent.<o:p></o:p>On the merits of the application, learned counsel contended
that the assertion that the applicant was a bona fide purchaser for value
without notice not having been raised as an issue at the court below, was an
afterthought, as it was not even contained in the affidavit in support of the
application. Learned counsel noted also that the only ground of appeal was the
omnibus ground which only grounded jurisdiction in the appellate court to
reconsider all the evidence led at the court below and to come to its own
conclusion. Thus did he submit that the appeal had no great chance of success
as no demonstration had been made that an arguable point of law had been raised
thereby. In learned counsel’s further submission, relying on the uncontroverted
deposition contained in the respondent’s affidavit in opposition that the
applicant was not in possession of the land, no demonstration had been made
that any hardship would be occasioned to the applicant if the application was
refused to an applicant not in possession. Nor, he argued, had any real
demonstration been made that in the unlikely event of a successful appeal, same
would be rendered nugatory. Lastly, it was submitted that the instant
application had been brought in bad faith, simply to frustrate execution.&nbsp; Regarding this, learned counsel pointed out
that this repeat application for a stay of execution was filed in July 2015
after the entry of judgment was served on her, although the prior application
before the High Court was dismissed nine months earlier. <o:p></o:p>Upon reading the affidavits filed in support of and
against the application, and upon hearing the arguments of learned counsel for
the parties I gave a ruling refusing the application. I reserved the reasons
for so ruling as well as the consideration of the award of costs until a later
date. I give the reasons now.<o:p></o:p>I will first consider the point raised in limine regarding the competence of
the application which is founded upon a motion paper signed not by a lawyer who
has taken out a Solicitor’s licence, but signed in the name of a firm of
solicitors:&nbsp; Beacon Law Consult. <o:p></o:p>In canvassing his point, learned counsel cited and
relied on the ruling of the Supreme Court in The Republic v. High Court (Fast
Track Division) Accra; Ex parte Justin Pwavra Teriwajah and Anor (Reiss &amp;
Co (Ghana) Limited, Interested Party) Civil Motion No. J5/7/2013 dated
11th December 2013, to argue that the name of firm of lawyers was
not known to the roll of lawyers in this country, hence it could not be
compelled to comply with the provisions of the Legal Profession Act to take out
a solicitor’s licence which was the circumstance requisite for practice as a
solicitor. In his submission, the instant motion for stay of execution pending
appeal being a process filed not by a lawyer who has taken such solicitor’s licence,
but by a firm of solicitors, was in line with Teriwajah’s case, incompetent and
incapable of founding the application.<o:p></o:p>Learned counsel for the applicants chose not to
respond to the said argument.<o:p></o:p>Is the instant application incompetent by reason of
the matters aforesaid?<o:p></o:p>