REPUBLIC vs. ACCRA CIRCUIT COURT JUDGE; EX PARTE ASHANTI FURNITURE CO., LTD. [1977]DLCA1411

Date	1977-04-28
Suit No.
Citation No.	[1977]DLCA1411

SOWAH JA

KINGSLEY-NYINAH JA

ANNAN J.A.

DEEGBE FOR THE APPELLANT.

I. W. OBENG FOR THE RESPONDENT.

[1977]DLCA1411
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>&nbsp;vs. <o:p></o:p>ACCRA CIRCUIT COURT JUDGE; EX PARTE ASHANTI FURNITURE CO., LTD. <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977]2 GLR 82<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:
28 APRIL 1977<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">

DEEGBE FOR THE APPELLANT.<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">

SOWAH, KINGSLEY-NYINAH AND ANNAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH J.A.<o:p></o:p>The fact
of this case are simple and straightforward. One Antwi Boasiakoh sold timber to
Ashanti Furniture Co., Ltd. (hereinafter called Ashanti Furniture) the
respondent to this appeal. The cost of the timber was ¢6,088.66. It appears
that Ashanti Furniture was unable to meet its obligations and Boasiakoh had to
resort to court action for enforcement of payment of the price. He obtained
judgment and proceeded to levy execution against the company. The company
applied for and obtained an order of court to pay the judgment debt by
instalments of ¢200 per month. Dissatisfied with the order, Boasiakoh appealed
to the Court of Appeal. On 29 March 1973 the record shows that the appeal was
struck out as settled.<o:p></o:p><o:p>&nbsp;</o:p>Unknown
to Ashanti Furniture, Boasiakoh was only an agent in the matter and one Seth
Okra was the undisclosed principal. The evidence shows that Boasiakoh was
dishonest to his obligations and did not pay over to his principal any part of
the judgment debt. Seth Okra therefore instituted an action against him for
“the cost of sawn timber sold and delivered by the defendant acting for the
plaintiff to Ashanti Furniture Ltd.” During the pendency of the action, Okra
obtained an order directing Ashanti Furniture which was not a party to the
action to pay the judgment debt in respect of the earlier proceedings into
court. The order was dated 26 March 1973. Ashanti Furniture did not take any
steps to vacate the order and ignored it.<o:p></o:p><o:p>&nbsp;</o:p>Two years
later, Seth Okra obtained judgment against Boasiakoh and proceeded to levy,
without success, execution against him. Thereafter Okra applied under Order 42,
r. 24 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), to enforce
the judgment against Ashanti Furniture even though the company was not party to
the action. Order 42, r. 24 reads:<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">“Any
person not being a party to a cause or matter, who obtains any order or in
whose favour any order is made, shall be entitled to enforce obedience to such
order by the same process as if he were a party to such cause or matter; and
any person not being a party to a cause or matter, against whom obedience to,
any judgment or order may be enforced, shall be liable to the same process for
enforcing obedience to such judgment or order as if he were a party to such
cause or matter.”<o:p></o:p><o:p>&nbsp;</o:p>Ashanti
Furniture applied to vacate the order granting leave to Seth Okra to go into
execution against it. The grounds for the application were that by 26 March
1973 when the order was made, the company had paid the full judgment debt to
Boasiakoh; secondly the order empowering Seth Okra to go into execution was
invalid and was made without jurisdiction inasmuch as Ashanti Furniture was not
party to that action.<o:p></o:p>The
circuit judge before whom this application was made decided to take oral
evidence in support of it and evidence was led by the company’s accountant, a
Mr. Manuel Joe Vroom. Briefly, it was that though the company’s books did not
show payment of any sums due to Boasiakoh, the accountant produced receipts
evidencing payment. He explained that these payments were made from the private
resources of the managing director when the company’s trucks were seized as a
result of fi. fa. proceedings taken out by Boasiakoh. The two receipts were
dated 2 and 7 March 1973 respectively, 23 days before the order against the
company to pay the judgment debt into court. He further produced a certified
copy of the Court of Appeal’s order showing that the action against the company
was settled on 29 March only three days after the date of the order directing
payment into court, which strongly supported the evidence that payment must
have been made before 26 March. Notwithstanding the evidence which was all one
way, the learned circuit court judge refused to vacate his order.<o:p></o:p><o:p>&nbsp;</o:p>For some
inexplicable reason the company’s legal</main>