ADJEIODA vs. C.F.A.O. [1971]DLHC2069

Date	1971-02-05
Suit No.
Citation No.	[1971]DLHC2069

ABBAN J.

I. AMOO-LAMPTEY (WITH HIM C. E. QUIST) FOR THE APPLICANT.

J. E. QUASHIE-IDUN FOR THE RESPONDENTS.

[1971]DLHC2069
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													<main id="main" class="content" style="min-height: 60rem" >ADJEIODA <o:p></o:p>vs. <o:p></o:p>C.F.A.O. <o:p></o:p>[HIGH COURT,
ACCRA]<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] 2 GLR 11<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:
5 FEBRUARY 1971.<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">

I.
AMOO-LAMPTEY (WITH HIM C. E. QUIST) FOR THE APPLICANT.<o:p></o:p>

J. E.
QUASHIE-IDUN 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">

ABBAN J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ABBAN J.<o:p></o:p>This
application is brought under Order 42, r. 22 of the Supreme [High] Court (Civil
Procedure) Rules, 1954 (L.N. 140A), asking for leave to go into execution in
respect of a judgment debt and costs awarded by this court on 11 June 1953.
Order 42, r. 22 which is relevant to this application reads as follows: [His
lordship here read the rule which is set out in the headnote and continued:] The
applicant and the respondents were parties in suit No. 271/1952 entitled
Messrs. C.F.A.O. v. A. K. Adjeioda. The applicant was a storekeeper keeping one
of the stores of the respondents at Kadjebi, Buem. After stock taking, the
respondents alleged that the applicant had incurred shortage to the tune of
£1,156 17s. Consequently the respondents instituted the action referred to
against the applicant for the recovery of this amount. The applicant denied
liability and put in a counterclaim for £956 19s. 3d. being the refund of his
security and other entitlements. When pleadings closed, the case was referred
to a referee to go into the accounts between the respondents and the applicant.
The referee went into the accounts and submitted his report to the court. On
the whole, the referee found in favour of the applicant, and on 11 June 1953,
the High Court, Accra, constituted by Smith Ag.J. dismissed the respondents’
claim and entered judgment for the applicant on his counterclaim in the
following manner: “I give judgment for the defendant for £956 19s. 3d. with
costs. Counsel’s fees assessed at £52 10s. Referee’s costs at £16 16s. less
amount already paid. Other costs to be taxed.”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>It is
nearly seventeen-and-a-half years since this judgment was pronounced, so it is
obvious that the applicant as the judgment-creditor, cannot go into execution
without the leave of the court. Hence the present application. The applicant
has set out in his affidavit the grounds for his delay and the relevant
portions read:<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;“(8) That soon after the judgment, I was
seriously taken ill; on my recovery I found that my lawyer the late C. C.
Lokko, had also been bedridden with stroke and did not recover until his death
[sic.]. <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">(9) That
I then approached the plaintiff [respondents] for the payment of the said
amount but was only met with evasive answers that they were looking through
their records. <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">(10) That
the said judgment debt and costs have not been satisfied and I am informed and
verily believe that in the circumstances of the case, I require leave to go
into execution.”<o:p></o:p><o:p>&nbsp;</o:p>The
respondents do not seem to deny that judgment was given against them. However,
learned counsel for the respondent opposed the application. First on the ground
that it is most probable that the judgment debt and costs have been paid and
this is borne out by the applicant’s failure to make a demand on the
respondents for all these years. Counsel further argued that even if it is
found that the debts have not been paid, he would still contend that the
judgment debt and the costs cannot now be recovered as they are statute-barred
by virtue of the Real Property Limitation Act, 1874 (37 &amp; 38 Vict., c. 57),
which makes such judgment debts and costs not recoverable after twelve years.
Learned counsel submitted that this English Act of 1874 is a statute of general
application and it is therefore applicable in Ghana. Learned counsel relied on
the case of Hebblethwaite v. Peever [1892] 1 Q.B. 124. Counsel also contended
that in any case, the court should refuse the application since the grounds for
the delay as given by t</main>