CRUICKSHANK vs. OKOE [1967]DLHC1492

Date	1967-01-27
Suit No.
Citation No.	[1967]DLHC1492

AMISSAH J.A.

APPLICANT IN PERSON.

K.A. SEKYI SENIOR STATE ATTORNEY FOR THE RESPONDENT.

[1967]DLHC1492
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													<main id="main" class="content" style="min-height: 60rem" >CRUICKSHANK <o:p></o:p>vs. <o:p></o:p>OKOE <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1967] GLR 17<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:
27 JANUARY
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">

APPLICANT IN PERSON.<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">

AMISSAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>The
applicant, Mr. Cruickshank, obtained a judgment against one Romanadi for
¢252.60 together with ¢3.96 costs. He subsequently applied successfully for the
arrest of the judgment debtor, presumably when he suspected that the judgment
debtor intended fleeing the country without satisfying the judgment debt. As a
result of the arrest, the magistrate made an order that the judgment debtor
should deposit £G200 (¢480.00) in court or provide sureties in the sum of
¢240.00 each to be justified. It should be explained that at the time of the
order an appeal by the judgment debtor against the judgment was pending and so
further costs were expected to be incurred. This may explain why the deposit
and surety asked for were higher than the judgment debt. The appeal was
dismissed in December 1965. The judgment debtor has since given proof of his
suspected intention by actually absconding. He did not deposit any money into
court. He produced two people as his sureties. But now a decree that the
sureties should pay the applicant his judgment debt, in the absence of the
judgment debtor, cannot be served on them. Neither can a writ of fi. fa. be
executed against their properties. The simple reason for this turn of events is
that they are not known at the respective addresses which they gave and cannot
be found in Nima the area of Accra where they said they lived. The applicant
has therefore lost the chance of recovering the fruits of the victory which he
won in court. It is certainly a sad commentary on the state of the courts if
they cannot protect a citizen to whom they have given judgment from being
deprived of his award by some clever ruse of the losing party. Especially when
that manoeuvre has actually been anticipated and an application has been made
to the court purposely for protection against it. The applicant in the
circumstances applies under paragraph 90 of the Courts Decree, 1966 (N.L.C.D.
84), for the amount to be recovered from the registrar of the Accra New Town
District Court, Mr. J. Robert Okoe, whom he charges with negligence which has
occasioned him this loss. It is a novel complaint, which requires the spirit of
a Hampden to lodge.<o:p></o:p><o:p>&nbsp;</o:p>Paragraph
90 of the Decree reads 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">“If any
officer employed to execute an order of Court wilfully or by neglect or
omission loses the opportunity of executing it, then, on complaint of the
person aggrieved and proof of the fact alleged, the High Court may if it thinks
fit, order the officer to pay the damages sustained by the person complaining
or part thereof and the order shall be enforced as an order directing the
payment of money.”<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Sekyi, senior state attorney, for the registrar has taken two points. Firstly,
that the acts complained of were completed before the Courts Decree, 1966, came
into force; that this not being a purely procedural matter the Courts Decree,
1966, cannot be invoked in it. I am unable to accept this argument. It is true
that the Courts Decree, 1966, came into force on 1 October 1966 and that the
negligence complained of occurred in November-December 1965. But Mr. Sekyi
overlooked the fact that paragraph 90 of the Decree was, but for the omission
of a comma, an exact reproduction of section 151 of the Courts Act, 1960 (C.A.
9), which the Decree repealed. The Courts Act was in operation at the time of
the alleged default. Thus the same provision existed at the time of the acts
complained of and still continues to exist. It is difficult to see why the
provision is said not to be a purely procedural matter, because all it does is
to provide a summary method for dealing with court officials who fail to
perform their duty. It does not create rights in a complainant or impose new
duties upon court officials which do not already exist. I am sure that if a
court official wilfully or by neglect or omission fails to execute his duty and
as a result causes injury to an individual, that individual would, but for
regulation 57 (3) of the Judicial Service Regulations, 1963 (L.I. 319), have an
action against the official in damages. The regulation protects registrars and
other duly authorised officials of the court from being sued for any bona fide
act or omission in the execution of court processes. But in my view that is not
a licence for their negligence or wilful misdeeds. I make mention of the
regulation at this stage to show that the protection it affords to bona fide
acts or omissions argues convincingly that court officials would have been
otherwise liable even for these. I am therefore of the view that paragraph 90
of the Courts Decree, 1966, which replaced section 151 of the Courts Act, 1960,
deals with a procedural matter. By section 9 of the Interpretation Act, 1960
(C.A. 4):<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">&nbsp;“Where an enactment is repealed or revoked and
another enactment is substituted, by way of amendment, revision or
consolidation—... (c) all proceedings taken under the repealed or revoked
enactment shall be prosecuted and continued under and in conformity with the
substituted enactment, so far as consis</main>