ADDO vs. KUMI [1970]DLHC2068

Date	1970-07-31
Suit No.
Citation No.	[1970]DLHC2068

QUASHIE-SAM J.

N. A. THAM FOR THE PLAINTIFF.

B. OKYERE-DARKOH FOR THE DEFENDANT

[1970]DLHC2068
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													<main id="main" class="content" style="min-height: 60rem" >ADDO <o:p></o:p>vs. <o:p></o:p>KUMI <o:p></o:p>[HIGH COURT,
KOFORIDUA]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 1 GLR 25<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:
31 JULY 1970.<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">

N. A. THAM
FOR THE PLAINTIFF.<o:p></o:p>

B.
OKYERE-DARKOH FOR THE DEFENDANT<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">

QUASHIE-SAM J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF QUASHIE-SAM J.<o:p></o:p>This is
an application for an order attaching the plaintiff-respondent and the deputy
sheriff, District Court Grade I, Koforidua, for contempt.<o:p></o:p>The short
statement of the facts in support of the application is that the plaintiff-respondent
(whom I will refer to simply as the plaintiff for the purposes of this
judgment) sued the defendant-appellant, the applicant in these proceedings,
(whom I will refer to as the defendant in this judgment) in the District Court
Grade I, Koforidua, and obtained judgment for ejectment against the defendant
on 16 April 1970. The judgment ordered the defendant to vacate the premises by
30 April 1970. The defendant on the following day, 17 April 1970, lodged an
appeal against the ejectment order while the appeal was pending, the plaintiff
wrote applying for and obtained a writ of possession from the said district
court which was executed on 1 May 1970 and the plaintiff was put into
possession of the premises from which the defendant was ejected pursuant to the
said judgment.<o:p></o:p><o:p>&nbsp;</o:p>It is the
contention of the defendant that by virtue of the provisions of High Court
(Civil Procedure) (Amendment) Rule, 1969 (L.I.619), his appeal operated
automatically as a stay of execution of the judgment given against him and that
the writ of possession ought not to have been issued in favour of the plaintiff
unless the plaintiff obtained an order of the court permitting her to go into
execution. Therefore, contends the defendant, the plaintiff who applied for the
writ of possession without leave and the deputy sheriff who caused the writ to
be executed are both in contempt. The facts are not denied.<o:p></o:p>But on
behalf of the plaintiff counsel contends that since the plaintiff applied for
the writ of possession and it was issued and signed by the magistrate, the
plaintiff was entitled to be put into possession purely on the strength of that
writ, and that there is nothing in her conduct constituting contempt.<o:p></o:p><o:p>&nbsp;</o:p>On behalf
of the deputy sheriff, counsel submits that there is no contempt committed
since the deputy sheriff was bound to execute the writ of possession once it
had been issued and was signed by the magistrate. Counsel concedes that,
provided an appeal had been filed, L.I. 619 operates to stay execution until
the court makes an order to go into execution. Counsel argues that normally the
manner of obtaining such an order is by motion but that in the present
circumstances, the application by the plaintiff for the issue of a writ of
possession and her obtaining such a writ must be deemed an order of the court
granting leave to the plaintiff to go into execution. Counsel finally submits
that on the facts there might have been an irregularity but certainly no
contempt committed and that the defendant’s proceedings for contempt are misconceived.<o:p></o:p><o:p>&nbsp;</o:p>The case
of the defendant, as put by counsel, is that the application for the writ of
possession was premature and counsel who applied for that writ should have
preceded it with an application for leave to go into execution by virtue of the
provisions of L.I. 619 which read 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">“An
appeal shall operate as a stay of execution or of proceedings under the
judgment or decision appealed from except so far as the Court below or the
Court may otherwise order”.<o:p></o:p>