NANA KWASI AGYEMAN VII AND OTHERS v. NANA HIMA DEKYI XIII AND OTHERS

JUDGMENT OF TWUMASI J.

The first plaintiff in this case is the occupant of the paramount stool of Lower Dixcove and the second and third plaintiffs are his sub-chiefs. The first defendant is the occupant of the paramount stool of Upper Dixcove. There has been a prodigious and exacting land litigation between the occupants of these two paramount stools over the years. The latest facet of this protracted land litigation came before my learned and noble brother Andoh J. (as he then was) and terminated in favour of the first defendant who was then declared owner of the land, the subject-matter of the suit.

An unpleasant repercussion of the plaintiffs' unsuccessful claim to the disputed land was an order that the plaintiffs and their subjects attorn tenant to the occupant of the stool of Upper Dixcove as the overlord of the whole span of land inhabited by Lower Dixcove. Presently, an appeal filed by the plaintiffs is pending before the Court of Appeal and they now supplicate for an order to stay execution.

Under the rules of court for the time being in force, a victorious party may as of right go into execution of the judgment or order unless the defeated party acts timeously in praying the court for an order to stay execution pending the result of an appeal and the court accedes to the application. Rule 27 of the Court of Appeal Rules, 1962 (L.I. 218) as amended by the Court of Appeal (Amendment) Rules, 1975 (L.I. 1002), r. 2, states: "An appeal shall not operate as a stay of execution of proceedings under the judgment or decision appealed from except where the Court below or the Court otherwise [p.457] orders".

The court before which an application for a stay of execution is made is called upon to exercise a discretion of considerable consequence. For the court it is a very difficult and delicate exercise of discretionary power, largely because the enactment does not give any guidelines or conditions for the exercise of the discretion. But, as Scrutton L.J. observed in Jones v. S.R. Anthracite Collieries Ltd. (1920) 90 L.J.K.B 1315 at p. 1317 "the whole duty of this court, and of every court should be to do justice between the parties." Again in Gardner v. Jay (1885) 29 Ch.D. 50. at p. 58, C.A. Bowen L.J. laid down a guiding rule that:

"[When] a tribunal is invested by Act of Parliament or by Rules [of court] with a discretion, without any indication in the Act or Rules of the grounds upon which the discretion is to be exercised, it is a mistake to