October 26, 2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal (Ghana) granted a stay of execution pending appeal to the Supreme Court in a land boundary dispute between the first applicant, owner of plot 27, and the respondent, owner of plot 28, in Sunyani’s Central Area. The High Court had dismissed the respondent’s trespass claim, but the Court of Appeal later allowed his appeal, awarding GH¢50,000 and ordering boundary demarcation and removal of a wall on plot 28. A single justice refused a stay; the full panel, acting under Article 138(b) and section 12(B) of Act 459, reversed that refusal. Applying settled principles—special/exceptional circumstances, nugatory effect, balance of hardship, and arguable grounds—the court found greater hardship would result if execution proceeded: removing the fence wall and dismantling a generator would obstruct access to the first applicant’s shopping mall, while the respondent had not possessed the 15‑foot strip. The panel stayed execution until the Supreme Court determines the appeal.
AYEBI, JA 1. In this Ruling, I shall refer to the defendants/respondents/appellants/applicants simply as applicants and plaintiff/appellant/respondent/respondent simply as respondent.
At the centre of controversy between the parties is a 15 feet piece of land between plot No. 27 owned by the 1st applicant and plot No. 28 owned by the respondent, all in the Central Area, Sunyani.
2. The respondent, alleging that the 1st applicant had trespassed on that portion, sued it for declaration for trespass to that 15 feet area, damages for trespass, amongst other reliefs.
The 2nd applicant joined the suit later.
3. On 11/05/13, the Sunyani High Court dismissed the respondent’s claim and entered judgment for the applicants.
An appeal to this court by the respondent was upheld on 27/02/16 with the following consequential orders: (a)Damages of GH¢50, 000. 00 for trespass against the applicants.
b)The Regional Surveyor and Surveyors appointed by the parties to determine the boundaries between plots 27 and 28 within 2 months from the date of judgment.
c) 1st applicant is ordered to pull down at its own expense, that part of the wall which was constructed on the respondent’s plot No. 28. 4. Being dissatisfied with the judgment, the applicants have appealed to the Supreme Court to set aside the judgment and consequential orders.
The applicants followed the notice of appeal filed with a motion for stay of execution of the judgment.
The motion was heard by a single justice of this court and dismissed on 12/04/16. Still not satisfied, the applicants on 07/06/16 filed this motion for stay of execution pending the appeal pursuant to Article 138(b) of the 1992 Constitution and section 12(B) of the Courts’ Act, 1993(Act 459). The said Article 138(b) states: “A single justice of the Court of Appeal may exercise a power vested in the Court of Appeal not involving the decision of a cause or matter before the Court of Appeal, except that –(a)…….
b) in civil matters, any order, direction or decision made or given in exercise of the powers conferred by this article, may be varied, discharged or reversed by the Court of Appeal as duly constituted”5. On 27th July 2016, when the motion came up for hearing by the full panel, we asked the parties to furnish us with written submissions because we were hard pressed for time.
The parties duly complied.
In the written submission on behalf of the respondent, counsel quoted the motion paper and submitted that the applicants only pra