OGYEADOM OBRANU KWESI ATTA VI vs. GHANA TELECOMMUNICATIONS CO. LTD & ANOTHER [2020]DLSC8895

Date	2020-04-28
Suit No.	CIVIL MOTION NO. J8/131/2019
Citation No.	[2020]DLSC8895

YEBOAH CJ (PRESIDING)

DOTSE JSC

GBADEGBE JSC

APPAU JSC

PWAMANG JSC

MARFUL-SAU JSC

KOTEY JSC

ACE ANKOMAH WITH HIM SHIRLEY OTU AND GLORIA COFFIE FOR THE APPLICANT.

KWASI AFRIFA LED BY JOSEPH SAM FOR THE RESPONDENT.

[2020]DLSC8895
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													<main id="main" class="content" style="min-height: 60rem" >OGYEADOM OBRANU KWESI ATTA VI<o:p></o:p>(PLAINTIFF/RESPONDENT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>GHANA TELECOMMUNICATIONS CO. LTD &amp; ANOTHER<o:p></o:p>(DEFENDANT/APPELLANT/APPLICANT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL MOTION
NO. J8/131/2019&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 28TH APRIL, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ACE ANKOMAH WITH HIM SHIRLEY OTU AND GLORIA COFFIE FOR THE APPLICANT.<o:p></o:p>KWASI AFRIFA LED BY JOSEPH SAM FOR THE RESPONDENT. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNoSpacing" style="text-align:justify;line-height:115%;border:none;
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<p class="MsoNoSpacing" style="text-align:justify;line-height:115%;border:none;
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CJ (PRESIDING), DOTSE JSC, GBADEGBE JSC, APPAU JSC, PWAMANG JSC, MARFUL-SAU
JSC, KOTEY JSC<o:p></o:p>

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</div><o:p>&nbsp;</o:p>GBADEGBE,
JSC: - <o:p></o:p>On April 28, we allowed the application for stay
of execution in the matter herein, but reserved our reasons, which we now
proceed to provide as follows. For reasons of convenience, in these
proceedings, the parties will be referred to simply as the applicant and
respondent.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;We have
before us an application for stay of execution of the judgment of the Court of
Appeal which dismissed the appeal of the applicant from a decision of the High
Court by which it was ordered to pay to the respondent by way of damages USD
16,009,920.00. The circumstances under which the application herein is brought
before us may be stated briefly as follows. The respondent initiated a claim
before the High Court, Agona Swedru for certain reliefs which were based upon
the applicant’s alleged unlawful acts of encroachment upon&nbsp; a piece or parcel of land belonging to the
respondent’s family and the erection of a telecommunication tower or mast
thereon. The action went to through a mixed trial at the end of which the
learned trial judge delivered a judgment that accepted the respondent’s version
of the matter and awarded damages against the applicant in the amount mentioned
in the preceding paragraph of this ruling.&nbsp;
A repeat application for stay of execution from the said judgment was granted
by the Court of Appeal on November 07, 2017 requiring the applicant to pay 30%
of the judgment debt. The applicant complied with the order of stay of
execution and on January 22, 2018 paid the cedi equivalent in the sum of GHS21,
215,040.00 into court, the said sum having been since released to the
respondent.&nbsp; The Court of Appeal inquired
into the appeal and dismissed it on May 29, 2019. The applicant then filed an
appeal to this court from the said judgment on June 11, 2019 and a day
thereafter filed an application for stay of execution pending appeal to the
Court of Appeal. The application was granted on terms, which applicant deemed a
refusal, hence the repeat application before us under Rule 20 of the Supreme
Court Rules, C I 6.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;The application
has been vehemently resisted by the respondent who contended primarily that
since the Court of Appeal’s decision was a judgment of dismissal of the appeal,
it did not make any executable order that can be enforced by a writ of
execution, the application was incompetent. In so contending, the applicant
relied on previous decisions of this court that where the Court of Appeal
merely dismissed an appeal, then no executory order is made that could be
stayed by an application for stay of execution. In this regard, the respondent
referred to among others, Ghana Football Association v Apaade Lodge
Ltd [2009] SCGLR 100 and Anang v Sowah [2009] SCGLR, 111. A careful
examination of these cases reveals that although Eboe v Eboe [1961] GLR
432 is a pre-1992 decision, the declaratory principle continues to be applied
to cases which come before the Supreme Court subsequent to the coming into
force of the Constitution dealing with applications for stay of execution
pending appeals. It needs to be said that in the Apaade case, the situation
before the Supreme Court was different from that now before us as in the
instant case, the judgment of the court is directly under attack&nbsp; by way of an&nbsp;
appeal while in that case ,the appeal was from a collateral attack on
the judgment.<o:p></o:p>&nbsp;&nbsp; <o:p></o:p>As the said decisions were pronounced by this
court, they are in principle binding upon us by virtue of article 129(3) of the
Constitution of 1992 which provides thus:<o:p></o:p><o:p>&nbsp;</o:p>“The
Supreme Court may, while treating its own previous decisions as normally
binding, depart from a previous decision when it appears to it right to do so,
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