MENSAH AND OTHERS vs. NSOWAH [1964]DLSC1927

Date	1964-05-11
Suit No.
Citation No.	[1964]DLSC1927

SARKODEE-ADOO C.J

OLLENNU JSC

ACOLATSE J.S.C.

OSEI (WITH HIM OPOKU-BOATENG) FOR THE APPELLANTS.

S.K.K. SOTOMEY FOR THE RESPONDENT.

[1964]DLSC1927
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													<main id="main" class="content" style="min-height: 60rem" >MENSAH AND OTHERS<o:p></o:p>&nbsp;vs. <o:p></o:p>NSOWAH <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 288<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
11 MAY 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OSEI (WITH HIM OPOKU-BOATENG) FOR THE APPELLANTS.<o:p></o:p>

S.K.K. SOTOMEY FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

SARKODEE-ADOO C.J., OLLENNU AND
ACOLATSE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. This is an appeal from an order for
certiorari, made by the High Court, Kumasi, quashing a writ of fi. fa. issued
by the Local Court, Teppa, and declaring null and void, a sale of property
consequent thereon. The fi. fa. in question was issued on 6 June 1961 in
execution of an order of the Asantehene’s A2 Court made on 3 May 1960 in favour
of the appellants herein; and the sale in question took place on 6 July 1961.<o:p></o:p><o:p>&nbsp;</o:p>The
proceedings which led to the execution commenced in the Teppa Local Court with
a writ of summons issued at the instance of the respondent. The said local
court gave judgment in favour of the respondent on 29 January 1960; that
judgment of the Teppa Local Court was set aside on 3 May 1960 as above stated
by the Asantehene’s Court A2 on appeal thereto taken by the appellants herein.
The respondent then appealed from that decision of the Asantehene’s Court A2 to
the High Court, Kumasi, and the appeal is still pending.<o:p></o:p><o:p>&nbsp;</o:p>On 6 June
1961, that is after the respondent had filed his notice of intention to appeal
and the appeal had been pending in the High Court by virtue of regulation 176
of the Local Courts Procedure Regulations, 1959,1 the appellants applied to the
Teppa Local Court for execution to issue, and the said local court on 19 June
1961 issued the writ of fi. fa. the validity of which is called in question by
the present proceedings, and the sale complained of was made in consequence
thereof.<o:p></o:p>The fact
of the issue of the fi. fa. came to the knowledge of the respondent some time
in July 1961, and he immediately applied to the Teppa Local Court to set the
same aside on the grounds that the issue of the fi. fa. was illegal. The motion
was on notice to the registrar of the Teppa Local Court, and to one S. H.
Owusu, the auctioneer to whom the appellants entrusted the sale under the writ
of fi. fa. The local court has refused to proceed with the motion on the ground
that the said auctioneer could not be found to be served with a copy of notice
of the application.<o:p></o:p><o:p>&nbsp;</o:p>We must
observe in passing that it appears strange to us that the appellants herein
upon whose application the execution was levied, and who would be the persons
really to be affected by the result of the application were not served with
notice of the application. Be that as it may, when it became apparent to him
from the several adjournments that the local court was not prepared to hear the
motion, the respondent decided to move the High Court for an order for
certiorari to quash the said fi. fa. and to declare the alleged sale as
illegal.<o:p></o:p><o:p>&nbsp;</o:p>The
period of six months within which the respondent could apply for the order of
certiorari, as provided by the Supreme [High] Court (Civil Procedure) Rules,
1954,2 Order 59, r. 3, had expired; he therefore resorted to Order 64, r. 6,
and applied to the High Court for an extension of time within which to apply
for leave under Order 59, r. 2, to apply for an order for certiorari. The
application was made on notice to the registrar of the Teppa Local Court only,
but not to the appellants herein who are the real persons to be affected by any
order to be made upon the application. Extension of time was granted to the
respondent as prayed, and after obtaining the necessary leave, he moved the
High Court upon notice to the appellants and obtained the order sought.<o:p></o:p><o:p>&nbsp;</o:p>At the
hearing of the application, the appellants raised a preliminary objection to
the right of the respondent to be heard contending that the grant of extension
of time without notice to them is ineffective. The High Court overruled</main>