OPANYIN EDWARD AGYARKWA v. JAMES FOLAGIN & ORS
2015
COURT OF APPEAL
GHANA
CORAM
- M. AGYEMANG (MRS) JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This case involves an application by the plaintiff/appellant/applicant for a stay of execution of a High Court judgment that dismissed his claim and decreed title to land in favor of the defendants/respondents. The application follows a partial refusal by the lower court. The applicant argues that the appeal has a high chance of success, that the execution would cause hardship, and a successful appeal might be rendered nugatory. The court recognizes that the appeal raises significant questions of law, including the reliance on an excluded pleading by the trial judge, which could result in a miscarriage of justice. The court grants the stay of execution pending the appeal, citing significant legal questions and potential hardship.
This is an application for a stay of execution of the judgment of the High Court delivered on the 17th day of February 2015 that dismissed the claims of the plaintiff/appellant/applicant, and inter alia, decreed title to land described by the defendants/respondents/respondents (respondents) as situate, lying and being at Oyibi in the Greater Accra Region and bounded on the Northeast by proposed road measuring 180. 9 feet and 81. 3 feet respectively, more or less, on the east by lessor’s land measuring 97. 3 feet more or less, on the south-east by a proposed road measuring 98. 4 feet more or less and containing an approximate area of 0. 58 acres or 0. 24 hectares more or less.
The repeat application which follows a part-refusal of same at the court below, is supported by a twenty-one paragraph affidavit sworn to by the present plaintiff/appellant/applicant (applicant) substituted for the original plaintiff.
The matters canvassed in support of the application are three-pronged: that the appeal has a great chance of success, that execution of the judgment will create hardship, and furthermore that a successful appeal may be rendered nugatory.
The argument on the success of the appeal is premised on a number of matters.
These include the fact that the learned trial judge in dismissing the applicant’s claim and entering judgment on the respondents’ counterclaim, relied on a proposed amended statement of defence filed on behalf of the fourth and fifth defendants which having been dismissed, was not in evidence.
It was submitted that this matter when brought to the attention of the learned trial judge in the prior application for a stay of execution, resulted in a partial grant of the application in respect of the fourth and fifth defendants only, when it properly should have been a full grant, abiding the result of the appeal.
The learned trial judge is also alleged to have erred in her reliance on a circuit court judgment to hold that the size of the plaintiff’s land had been overblown to include the defendant’s land.
This supposition grounded a finding of fraud on the part of the applicant by the court below, although fraud had neither been pleaded nor proved.
In further argument on this point, it was contended that the reliance on the circuit court judgment by the court below to hold that the applicant’s land title certificate was defective was also erroneous, and so was the order for cancellation of the land title certificate, a relief that was never