NYONATOR AND OTHERS vs. WORGBA AND OTHERS [1967]DLCA1522

Date	1967-07-03
Suit No.
Citation No.	[1967]DLCA1522

OLLENNU JA

AZU CRABBE AMISSAH J.A.

DE GRAFT-JOHNSON FOR THE APPELLANTS.

KOI LARBI FOR THE RESPONDENTS.

[1967]DLCA1522
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													<main id="main" class="content" style="min-height: 60rem" >NYONATOR AND OTHERS <o:p></o:p>vs. <o:p></o:p>WORGBA AND OTHERS <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 468<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:
3 JULY 1967.<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">

DE GRAFT-JOHNSON FOR THE APPELLANTS.<o:p></o:p>

KOI LARBI FOR THE RESPONDENTS.<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">

OLLENNU, AZU CRABBE AMISSAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.A.<o:p></o:p>Ollennu
J.A. delivered the judgment of the court. This is an appeal against an order of
certiorari made by the High Court, Ho, quashing an order of the Anlo Local
Court which committed the respondents to prison for default in compliance with
an order for payment of costs by instalment.<o:p></o:p><o:p>&nbsp;</o:p>A brief
history of the matter is necessary for a clear appreciation of the issues
raised. The respondents, as plaintiffs, in or about 1958, instituted action
against the appellants, as defendants, in the erstwhile Wego-Torgo Native Court
“B” for declaration of title to and recovery of possession of a piece of land
situate at a place called Afiadenyigba in the Keta District. The value of the
land is stated to be about £G2,500. The Wego-Torgo Native Court “B” was
established under the Native Courts (Southern Togoland) Ordinance, Cap. 106
(1951 Rev.), and had unlimited jurisdiction in land suits.<o:p></o:p><o:p>&nbsp;</o:p>Judgment
was entered for the plaintiffs in the Wego-Torgo Native Court “B” on 19 March
1959, but the same was set aside on 8 May 1962, by the High Court, Ho, on the
ground of irregularity in the constitution of the trial native court. The High
Court thereupon remitted the case “to the appropriate local court now having
jurisdiction in the area to be heard de novo” and made the following order as to
costs: “The costs in the native court already incurred and those to be incurred
at the new hearing will be in the discretion of that court in giving its
judgment at the new hearing.”<o:p></o:p>The case
eventually came before the Anlo Local Court on 18 December 1962. On that date,
the defendants objected to the jurisdiction of the local court to entertain the
suit, the value of the land subject-matter of the suit being above £G200. The
local court upheld the objection to its jurisdiction, dismissed the suit and
made the following order as to costs: “The plaintiffs to pay the costs of the
defendants in the sum of £G6 6s. 0d. in the present case before this court. The
costs in the native courts to be taxed.” The costs were taxed at £G118 6s. 6d.<o:p></o:p><o:p>&nbsp;</o:p>Armed
with this order for costs the defendants applied to the local court and had
summons served upon the plaintiffs to appear and show cause why they should not
be committed to prison for non-payment of the taxed costs; the plaintiff’s
failed to appear, they were then arrested, on warrant and brought before the
local court, and the matter proceeded as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
plaintiffs at first denied that any costs as such had been ordered and assessed
against them. However, on resumption of hearing today the plaintiffs agreed to
the claim as genuine. They prayed for instalment payments of £G2 per month and
assert that they have taken out a fresh claim against the defendants before the
High Court, Ho. The defendants would not accept that the debt be repaid by
instalments. They substantiated their case that the plaintiffs incurred the
debt through reckless and ceaseless litigation; and still continue the same
before the High Court, Ho. After having heard parties, I found that the
plaintiffs have incurred the debt herein recklessly. As a deterrent against
such endless litigation, I would have ordered full and immediate payment; but
for grace to the plaintiff-debtors who by their further action would appear to
have been inspired by the presence of enough and sufficient means. Accordingly,
the plaintiffs’ plea for payment on instalment basis is accepted and granted as
follows: (a) £G50 to be paid by 31 October 1963. (b) £G20 to be paid for the
months of November and December 1963 and January 1964. (c) Balance debt of £G8
6s. 6d. plus costs of £G6 12s. assessed shall be paid for the month of February
1964. In default of payment of any instalments when due the three
plaintiff-debtors shall each go to prison for two months at the instance of the
defendant-creditors.”<o:p></o:p><o:p>&nbsp;</o:p>And that
is the order which was quashed by the High Court upon certiorari at the
in</main>