N B LANDMARK LTD vs. LAKHANI [2001-2002] 2 GLR 193

CASES REFERRED TO

(1) Eboe v Eboe [1961] GLR 432.

(2) Mensah v Ghana Football Association [1989-90] 1 GLR 1,SC.

APPEAL by the appellant from the decision of the Court of Appeal granting an application by the respondent for stay of execution of an order of the trial circuit court refusing the respondent’s application to set aside a default judgment given in favour of the appellant. The facts are sufficiently stated in the judgment of Acquah JSC.

Sammy Addo for the appellant.

Amegatcher (with him Miss Abu) for the respondent.

Acquah JSC. This is an appeal against the decision of the Court of Appeal granting a stay of execution of the ruling of the Circuit

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Court, Accra dated 24 September 1998. This ruling of the Circuit Court, Accra refused an application to set aside its decisions of 2 November 1998. The grounds of appeal as set out in the notice of appeal are:

“(a) The Court of Appeal erred in law when stay of execution of the circuit court judgment was in effect granted when there was an appeal against it.

(b) The Court of Appeal erred in law when it refused to uphold that service of hearing notices on

solicitors under the circumstances of this case amounted to service on the respondent.

(c) The Court of Appeal erred in law and in contravention of the Constitution, 1992 when it refused to be bound by its previous decision which distinguishes between judgment that could be set aside and judgment that ought to be appealed against.

(d) The Court of Appeal erred when it sustained an application for stay of execution based on an appeal against the refusal of the Circuit Court, Accra to set aside its judgment when the grounds to set aside were based on misapplication of law.

(e) The Court of Appeal erred in ruling on assessment of rent when the issue was not before it.

(f) Further grounds of appeal would be filed upon receipt of the records of proceedings.”

No further grounds of appeal were filed.

The brief facts are that the plaintiff issued a writ of summons at the Circuit Court, Accra against the defendant for:

“(a) Recovery of possession or ejectment order or both in respect of shop Nos 1 and 2, Property No D684/4 Knutsford Avenue, Accra.

(b) Mesne profit from November 1997.”

On 2 November 1998, the circuit court entered judgment for the plaintiff against the defendant, who though served, did not attend the hearing. The court in its judgment ordered the defendant to vacate and yield up vacant possession of the premises to the plaintiff, and adjourned proceedings to 24 November 1998 for the

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assessment of economic rent to be paid by the defendant from November 1997 up to the date of judgment. The defendant moved the circuit court to set aside this judgment but the court refused the application. He therefore filed an appeal on 30 November 1998 to the Court of Appeal against the refusal, and followed this up with an application for stay of execution of the order refusing to set aside the judgment. The application for stay was also dismissed by the trial circuit court. He repeated the application at the Court of Appeal which granted same on 24 March 1999 in the following language:

“We think the appellant had demonstrated she has very serious legal question to raise on appeal. We would thus allow the application, subject to the applicant paying rent assessed by the Land Valuation Board effective from the date of the decision of the court below.”

It is this ruling which is the subject of this appeal.

In his statement of case the appellant raises in his paragraph (8) thereof, that the discretion of stay of execution has not been properly granted and that the issue of rent was not a subject matter of the appeal before the Court of Appeal. And again in paragraph (11) that “the appeal before the Court of Appeal for which the stay was granted is in respect of the trial court’s refusal to set aside its judgment” and not the substantive judgment of 2 November 1999.

In my view, by the above two submissions, the appellant challenges the propriety of the Court of Appeal’s grant of stay of execution vis-a-vis the judgment in respect of which the appeal was lodged and on which the application for stay of execution was dependent. In the respondent’s statement of case, he contends that the Court of Appeal had power under rule 31 of the Court of Appeal Rules, 1997 (CI 19) to make the interim order it did.

Now, it is trite learning that an application for stay of execution, presupposes that the order or decision in respect of which the stay is sought is capable of being executed by any of the known processes of execution. If the order or decision is incapable of being executed, an application for stay of execution cannot be applied in respect of it. Thus in Eboe v Eboe [1961] GLR 432 Ollennu J (as he then was) held that a declaration that the defendant was a trustee did not require any person to do anything or abstain

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from doing anything and there was no method of executing it. Consequently, there could be no application to stay the said order. Citing with approval this decision in Eboe v Eboe (supra), Taylor JSC in his dissenting opinion in Mensah v Ghana Football Association [1989-90] 1 GLR 1 at 12, SC said: “The concept of stay of execution in our law . . . is founded on the idea that where the person against whom the order is directed is in no position to execute the judgment by the various execution processes, then a stay of execution is meaningless and logically pointless.”

In the instant case the judgment in respect of which the application for stay was sought, was one refusing to set aside a default judgment. How does one go into execution in respect of such a refusal order? The appeal was not in respect of the main judgment of 2 November 1998 which ordered the defendant to give up vacant possession of the premises. A stay of execution can of course be applied to stay the substantive judgment if an appeal had been filed against it and the relevant application for stay is filed.

It is quite clear that the Court of Appeal appeared to be misled by the attractive legal submissions made against the substantive judgment of 2 November 1998, into granting the application for stay. Obviously, if the court’s attention had been drawn to the fact that notwithstanding the attractiveness of the legal submissions, the 2 November 1998 judgment was neither the decision on appeal nor the one in respect of which the application for stay was directed, it would have considered whether the decision of 28 November 1998 refusing to set aside the judgment was capable of being stayed to warrant an application for stay of execution.

I have no doubt in my mind that the decision refusing to set aside a default judgment is incapable of being executed by any of the known processes of execution. And consequently, an application for stay of execution of such a decision cannot arise.

On this ground alone, we allow the appeal, and set aside the ruling of the Court of Appeal dated 24 March 1999.

Ampiah JSC. I agree.

Kpegah JSC. I agree.

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Adjabeng JSC. I agree.

Atuguba JSC. I also agree.

Appeal allowed.

DRKS