PRINCE WILLIAM TAGOE v. ALBERT G. K. ACQUAH

ANIN YEBOAH, J.S.C.:-

The Circuit Court at Tema on the 12th of December 2006 entered judgment against the appellant herein in favour of the Respondent herein to recover all rent arrears and ejectment from the house in dispute which is H/№ 12/N2 C2 situate at Tema. It was the case of the respondent that he owned the property in dispute and leased same to the appellant for an agreed rent. According to the Appellant, the respondent ceased paying rent in 1999. He therefore commenced the action for recovery of possession and rent arrears.

The appellant controverted the facts and strongly denied the title of the respondent. He stated among other things that there was an agreement he entered into with the respondent and one Quartey Papafio to travel abroad in exchange for the house in dispute. He therefore claimed that the agreement divested the appellant of his ownership of the house.

The learned Circuit Court judge raised one crucial issue of who was the owner of the property to be resolved by him. The lease entered between the parties herein was tendered in evidence as Exhibit 1 dated the 15/10/1981 was to commence on 1st October 1981. The trial judge found as a fact that the respondent owned the property and accordingly entered judgment to the respondent and made an order for the recovery of rent arrears with cost. Being dissatisfied with the judgment, the appellant lodged an appeal to the Court of Appeal. He filed a motion for stay of execution at the Court of Appeal which was refused on the 4/12/2007. He has appealed to this court against the refusal of the Court of Appeal with the leave required under Article 31(1) (b) of the Constitution 1992.

In this application learned counsel has invited this court to grant the stay on the grounds that both the trial court and the Court of Appeal failed to consider the effect of PNDCL 5 in this case. According to him even though PNDCL 5 has been repealed, the repeal does not revive the rights of the respondent and this is so under section 8(1) of the Interpretation Act.

Another ground which was argued is that the Court of Appeal failed to exercise its discretion in his favour and thereby refused his application for stay of execution.

What is before this court is an appeal against the refusal of the Court of Appeal to grant the motion for stay of execution. Even though a legal point has been raised, it should be borne in mind that the discretion to grant or refuse the application was vested in the Court of Appeal