This ruling is in respect of an Application for Stay of Execution pending Appeal filed by the Defendants/Appellants/Applicants dated 19th August, 2022 with a supporting 16 paged Affidavit.
The mainstay of the application is that the Applicants dissatisfied with the judgment of the court dated 9th October, 2018 have filed an Appeal to the Court of Appeal on the grounds that the Circuit Court found that the Land Certificate of the Plaintiff was tainted by fraud and further accepted and recognized that the 1st and 3rd Defendants acquired land in the 1950’s and used the subject matter of the suit as access to their house when they moved there. That the Circuit Court dismissed the defence of the existence of an easement on the ground that there was another access point even if same was a footpath.
Counsel for the Applicants submitted that in spite of the pendency of the Appeal, the Plaintiff/Respondent has recently deposited construction aggregates including sand and gravels with the view, apparently to construct the three bedroom building as he indicated at trial, on the said land and that the said construction will cause substantial inconvenience as same will block the access route to the 1st and 3rd Defendants’ property leaving only the footpath behind the property as access.
On the other hand, the Plaintiff/Respondent filed a 27 paged Affidavit in Opposition dated 5th October, 2022 urging the court to dismiss same on the grounds that the application is not properly before the court, unmeritorious and is an attempt to deny the Plaintiff the benefit of enjoying the fruits of his labour after four years of the judgment.
Counsel for Respondent submitted that the Circuit court rightly found the 1st and 3rd Defendant’s father and by extension applicants as not being owners of the land in dispute and that the 1st and 3rd Defendants by their own testimony admitted that the land in issue served as frontage of the land acquired by their father from the grantor of Plaintiff. That the court found that applicants father’s land purportedly given to 3rd defendant shares boundary with the Plaintiff land and both had the same grantor of Plaintiff. The Circuit Court found that the land in issue did not belong to the Asere Stool who therefore could not have given any grant to defendants since same did not have any interest in the land but the Nyame Asem Dimson family. That contrary to the claim of the applicants and the related grounds of appeal the claim to easement was
