NANA KWESI NKANSAH BOADU AND YAW FRIMPONG vs. AMA AGYEMANG AND KWEKU BONSU [2016]DLCA8934

Date	2016-06-20
Suit No.	CIVIL MOTION NO. H3/291/ 2016
Citation No.	[2016]DLCA8934

MARFUL-SAU JA (PRESIDING)

KORBIEH JA

TANKO AMADU JA

ATTA AKYEA FOR THE PLAINTIFFS/APPELLANTS/APPLICANTS

SAMUEL AKUFO- ADDO FOR THE 2ND DEFENDANT/RESPONDENT/ RESPONDENT.

[2016]DLCA8934
																																						<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" >NANA KWESI NKANSAH BOADU AND YAW FRIMPONG<o:p></o:p>(PLAINTIFFS/APPELLANTS/APPLICANTS)<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>AMA AGYEMANG<o:p></o:p>(DEFENDANT)<o:p></o:p><o:p>&nbsp;</o:p>KWEKU BONSU<o:p></o:p>(DEFENDANT/RESPONDENT/RESPONDENT)<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;
padding:0cm 0cm 1.0pt 0cm">

CIVIL MOTION NO.
H3/291/ 2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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 JUNE, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ATTA
AKYEA FOR THE PLAINTIFFS/APPELLANTS/APPLICANTS<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">

SAMUEL AKUFO- ADDO FOR THE 2ND
DEFENDANT/RESPONDENT/ RESPONDENT.<o:p></o:p>

</div>CORAM:<o:p></o:p>MARFUL-SAU
JA (PRESIDING), KORBIEH JA, TANKO AMADU JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>MARFUL-SAU, JA:-&nbsp; <o:p></o:p>This
is an application praying for an order to discharge the order of a single Judge
of this court and for stay of execution of the judgment and or suspension of
execution pending the determination of appeal against the judgment in suit No.
TIMSC 40/13, delivered by the High Court, (Land Division), Accra. The
application has been brought under article 138 of the 1992 Constitution.<o:p></o:p>The
single Judge by his decision dated the 15th March, 2016 refused an application
for stay of execution on the sole ground that the Applicants had not
demonstrated such an interest in the land the subject matter of the dispute.
For that reason the single Judge concluded that no special circumstances had
been demonstrated by the Applicants to warrant an order for stay of execution.<o:p></o:p>We
have carefully examined the process filed in this application and are of the
considered opinion that this application raises crucial legal issues which
belongs to the substantive appeal. Our opinion is based on facts and or events,
which arise from the processes so far filed in this proceedings. These facts
are as follows:-<o:p></o:p>a.
That the land the subject matter of the dispute was paid for by the 1st
Plaintiff/ Appellant/ Applicant herein.<o:p></o:p>b.
That the said 1st Plaintiff/ Appellant/Applicant was not a party to suit No. AL
31/2008 whose judgment the Plaintiffs/Appellants/ Applicants herein are seeking
to set aside on grounds of fraud.<o:p></o:p>c.
That the conduct of 1st defendant herein in the entire transaction covering the
assignment of the land in dispute and in all the legal proceedings concerning
the land in dispute ,namely Suit No. AL 31/2008 and Suit No. TIMSC 40/13, which
is the subject of this appeal, needs to be examined judicially from the certified
records of proceedings and its legal effects or consequences determined.<o:p></o:p>d.
That the evidence or testimony of the 2nd Plaintiff/Appellant/ Applicant herein
in Suit No.AC 31/2008 concerning the ownership of the land in dispute needs to
be evaluated from the&nbsp; certified record
of the trial to determine properly the legal effects of the said testimony.<o:p></o:p>e.
That one of the major issues in the case, namely, whether or not the 1st Plaintiff/Appellant/Applicant
intended to create a trust for the benefit of 2nd Plaintiff/Appellant/
Applicant could well be determined properly from the certified record of the
trial in suit No. TIMSC 40/13.<o:p></o:p>We
observe that the above issues are crucial and can only be properly addressed
and effectively determined in the hearing of the substantive appeal. Indeed the
judicial resolution of above matters or issues will determine which of the
parties have an unimpeachable or perfect interest in the land. We are therefore
of the opinion that the decision of the single Judge that the Applicants had no
interest in the land, with the greatest respect, was premature at that stage of
the proceedings. Accordingly, we will exercise our powers under article 138 (b)
of the 1992 Constitution and set aside the order of the single Judge. That
order is accordingly set aside.<o:p></o:p>From
the processes so far filed in these proceedings, it is alleged that the 2nd
Defendant/ Respondent/Respondent intends to develop the land the subject matter
of the dispute. This fear was put before the single Judge and same deposed to
in paragraphs 13 and 14 of the affidavit in support of the present motion filed
on the 18th March 2016. These depositions have not been denied by the 2nd
Defendant/ Respondent/Respondent in this proceedings, as per his affidavit in
opposition to this application. Since the 2nd Respondent/ Respondent intends to
develop the land in dispute, which will obviously change the character of the
land, we think that the ends of justice will be better served in the interest
of all the parties, if the judgment the subject of this appeal is stayed to
abide the final determination of the appeal.<o:p></o:p>

We
therefore order a stay of execution of the judgment entered by the High Court
(Land Division) on 19th October 2015, in view of the crucial legal issues
identified in this proceedings as above and the fact that the 2nd&nbsp; Defendant/ Respondent/Respondent intends to
develop the land in dispute an act which will change the character of the land.
The said judgment is accordingly stayed p</main>