OPANYIN EDWARD AGYARKWA SUBSTITUTED BY OPANYIN YAW ASARE (SUING AS HEAD AND LAWFUL REPRESENTATIVE OF TETE PA OGYA AGONA FAMILY OF ADAMOROBE NEAR ABURI (PLAINTIFF / APPELLANT / APPLICANT) vs. JAMES FOLAGIN, ESTHER FOLAGIN, WILLIAM FOLAGIN, MADAM ABENA KUMAH AND BORTEIFIO MENSAH [2015]DLCA8420

OPANYIN EDWARD AGYARKWA SUBSTITUTED BY OPANYIN YAW ASARE (SUING AS HEAD AND LAWF... [2015]DLCA8420

Date	2015-10-20
Suit No.	SUIT NO.: H3/575/2015
Citation No.	[2015]DLCA8420

M. AGYEMANG (MRS) JA

KWASE FYNN FOR APPELLANTS

EMILY ADDO-OKYIREH (CSA) WITH EMMANUEL OPARE WIREDU (ASSISTANT STATE ATTORNEY) FOR REPUBLIC

[2015]DLCA8420
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													<main id="main" class="content" style="min-height: 60rem" >OPANYIN EDWARD AGYARKWA
SUBSTITUTED BY OPANYIN YAW ASARE (SUING AS HEAD AND LAWFUL<o:p></o:p>REPRESENTATIVE OF TETE PA OGYA
AGONA FAMILY OF ADAMOROBE NEAR ABURI<o:p></o:p>(PLAINTIFF / APPELLANT / APPLICANT)<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>JAMES FOLAGIN, ESTHER FOLAGIN,
WILLIAM FOLAGIN, MADAM ABENA KUMAH AND BORTEIFIO MENSAH<o:p></o:p>(DEFENDANTS/RESPONDENTS/RESPONDENTS)<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.: H3/575/2015&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;DATE: 20TH OCT, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWASE FYNN FOR APPELLANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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EMILY ADDO-OKYIREH
(CSA) WITH EMMANUEL OPARE WIREDU (ASSISTANT STATE ATTORNEY) FOR REPUBLIC<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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</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 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>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>