F. N. OPPON & COMPANY LTD. vs. SETHI MANUFACTURING COMPANY LTD., NANA ADU MENSA ASARE AND THE LANDS COMMISSION [2016]DLCA8561

F. N. OPPON & COMPANY LTD. vs. SETHI MANUFACTURING COMPANY LTD., NANA ADU MENSA... [2016]DLCA8561

Date	2016-11-22
Suit No.	CIVIL MOTION NO: H3/5/2017
Citation No.	[2016]DLCA8561

A. M. DOMAKYAAREH (MRS.) (JUSTICE OF APPEAL)

[2016]DLCA8561
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													<main id="main" class="content" style="min-height: 60rem" >F. N. OPPON &amp; COMPANY LTD.<o:p></o:p>(PLAINTIFF/APPELANT/APPLICANT/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;mso-ansi-language:EN-GB">vs.<o:p></o:p>SETHI MANUFACTURING COMPANY
LTD., NANA ADU MENSA ASARE AND THE LANDS COMMISSION<o:p></o:p>(1STDEFENDANT/RESPONDENT/RESPONDENT/APPLICANT)<o:p></o:p>[COURT OF APPEAL,
KUMASI]<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">

CIVIL MOTION NO: H3/5/2017&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 22ND NOV, 2016<o:p></o:p>

</div><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;;mso-ansi-language:EN-GB">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">

A. M. DOMAKYAAREH
(MRS.)&nbsp; (JUSTICE OF APPEAL)<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;
padding:0cm 0cm 1.0pt 0cm">

<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>The
plaintiff/appellant/applicant/respondent (herein after called the respondent) filed
on repeat application for stay of execution before this court on 3rd
August, 2015.&nbsp; This motion was considered
by a single judge of the court and granted on terms on 18th
November, 2015.&nbsp; The order lapsed because
the terms could not be met.&nbsp; On 10th
March, 2016, the respondent applied to the court as duly constituted to review
or vary the order of the single judge.&nbsp;
This application was dismissed on 11th April, 2016 on account
of the fact that there was no order to review as the order had lapsed in
accordance with its own terms.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent then filed a fresh application for stay of execution before the
court as duly constituted indicating that fresh facts had come to its
attention.&nbsp; The court considered the
application and granted same on 19th July, 2016 against both
parties.<o:p></o:p><o:p>&nbsp;</o:p>The
1st defendant/respondent/respondent/applicant (herein after referred to as the
applicant), being dissatisfied with the grant of the Injunction against it filed
an appeal against same per Notice of Appeal filed on 20th July,
2016.&nbsp; The applicant herein then filed a
motion for Stay of Execution of the injunction order of the Court of Appeal on
2nd August, 2016.&nbsp; At the
hearing of the motion on 25th October, 2016, by a single judge, the
respondent raised a preliminary objection.&nbsp;
The single judge ordered the parties to file written submissions on same
which was complied with by both parties including a Reply by the respondent
filed on 16th November, 2016 which addressed “point of law and
incorrect facts which 1st defendant has raised in its respective
written submission”.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent’s preliminary objection was on the validity of the Notice of Appeal filed
by the applicant to the Supreme Court and its effect on the motion for stay of
execution before the court. The respondent’s contention is that the Notice of
Appeal is incompetent as it offends Article 131(2) of the 1992 Constitution and
section 4(2) of the Courts Act 1993 (Act459) and hence cannot be a basis for the
application for Stay of Execution.&nbsp; The
respondent contends that the applicant required the special leave of the
Supreme Court to appeal to the Supreme Court against the interlocutory order of
the Court of Appeal.&nbsp; Counsel for the
respondent contended that since no leave was obtained, the Notice of Appeal filed
was therefore incompetent as it failed to invoke the jurisdiction of the
Supreme Court.&nbsp; That since there was
therefore no appeal pending, there could be no application for stay of
execution and therefore the motion should be thrown out. <o:p></o:p><o:p>&nbsp;</o:p>In
further support, the respondent argued that a party who intends to appeal from
the Court of Appeal to the Supreme Court in respect of an interlocutory matter
needs to apply at the Supreme Court for Special leave to appeal to the Supreme
Court and that this was not done.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent also argued that the Oder being sought to be stayed is not
executable and hence cannot be stayed. Counsel also made the weird argument that
even if the order is executable, granting the stay of execution would have the
effect of the court reviewing its own orders.<o:p></o:p><o:p>&nbsp;</o:p>Citing
constitutional and statutory provisions as well as case law, the applicants denied
the assertions of the respondent and stated emphatically they do not require
the special leave of the Supreme Court to appeal against the injunction order of
the Court of Appeal as their Notice of Appeal was rather governed by Article
131 (a) and (b) of the 1992 Constitution and Section 4(1)(a) and (b) of the
Courts Act, Act 459 as amended by Act 620. They contended that the Order of
injunction of the Court of Appeal being sought to be stayed is executable since
the Oder can be enforced within the law. (See MENSAH VRS GHANA FOOTBALL ASSOCIATION [1989-90] 1 GLR 1) I agree
with Counsel for the applicant.<o:p></o:p>