EMMANUEL SARFO WIAFE VS ADWOA HARRIS WIAFE
2022
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP ALEX OWUSU-OFORI (J)
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2022
HIGH COURT
GHANA
CORAM
AI Generated Summary
This ruling addresses a motion by the Defendant/Applicant for a stay of execution pending appeal under Order 45 rule 15 of C.I 47 and the court’s inherent jurisdiction. The Defendant contended that a wrongful execution dispossessed her of the jointly owned property, precipitating Suit No. GJ/1245/2019 seeking damages, and that enforcing the sale now would render both the appeal and the related suit nugatory. The Plaintiff/Respondent opposed, referencing a 2014 judgment, affirmed by the Court of Appeal, directing sale and sharing of proceeds or buy-out, and criticized the Defendant’s repeated applications as abusive. The court noted the appeal’s readiness for transmission to the Court of Appeal and, citing Order 45 rule 15(1)(a)–(b), found merit solely in preserving the subject matter. It therefore stayed execution by halting the sale until the appeal is determined.
The instant application was brought under Order 45 rule 15 of C.I 47 and the inherent jurisdiction of the court.
In moving the application for stay of execution pending appeal of the court’s ruling, counsel for the Defendant/Applicant submitted that there are exceptional circumstances which makes it inexpedient for the ruling of the court dated 14th April 2022 to be executed now whilst their appeal against the ruling that is Exhibit ‘A’ attached to the affidavit remains pending.
Counsel submitted that it is against the background of the wrongful execution as found by the court that other suit that is Suit No. GJ/1245/2019 was filed.
That as a result of the wrongful execution in this suit they issued a fresh writ against the Plaintiff herein to seek among other specific and general damages the injuries the Defendant/Applicant has suffered.
That there is evidence as contained in Exhibit “C” attached to the supplementary affidavit that the appeal is ready for transmission to the Court of Appeal.
Counsel further submitted that the execution of Plaintiff’s judgment in the instant suit is inextricably linked with Suit No. GJ/1245/2019, this is because as explained, it was as a result of the execution purportedly carried out by the Plaintiff/Respondent in the instant suit which led to the commencement of that suit.
Counsel argued that the execution to the instant suit being linked with that suit is strengthened by this ruling dated 28th October 2021 and unless there is a stay of execution in this matter and emphasized that they are not fighting against the judgment which was entered in the case but rather the execution.
And also unless the stay is granted Suit No. GJ/1245/2019 will be rendered nugatory notwithstanding the fact that the Defendant/Applicant persistently has suffered under the wrongful execution.
Counsel further submitted that the Plaintiff must not be allowed to take his one third (1/3) interest of this matter and run away. If he runs away or if his interest is not preserved to abide in the final decision in Suit No. GJ/1245/2019 the anticipation of the Defendant/Applicant and the Plaintiff therein will be an empty one.
This court in exercising its inherent jurisdiction in dealing with the matter references were made to the cases of:
1. JOHN DRAMANI MAHAMA VRS. ELECTORAL COMMISSION AND ANOR WRIT NO. J1/5/2021
2. FOOT PRINT SOLUTIONS COMPANY. LTD. VRS. LEO AND LEE COMPANY LTD. CIVIL APPEAL NO. J4/52/2011.
3. DWOBO V. APOPLOWU & ORS (1