REPUBLIC vs. JAMES TOWN CIRCUIT COURT JUDGE; EX PARTE WHITESIDE [1977]DLHC1423

Date	1977-07-12
Suit No.
Citation No.	[1977]DLHC1423

TAYLOR J.

I. AMOO-LAMPTEY FOR THE APPLICANT.

N. KUENYEHIA FOR THE SECOND RESPONDENT.

[1977]DLHC1423
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>&nbsp;vs. <o:p></o:p>JAMES TOWN CIRCUIT COURT JUDGE; EX PARTE WHITESIDE <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1977]1 GLR 99<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:
12 JULY 1976<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 FOR THE APPLICANT.<o:p></o:p>

N. KUENYEHIA FOR THE SECOND RESPONDENT.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>This is an
application for an order of certiorari to quash an order made by the circuit
court on 22 March 1976, whereby the circuit court judge proceeding under the
provisions of Order 35, r. 5 of the High Court (Civil Procedure) Rules, 1954
(L.N. 140A), ordered that the applicant already in custody should continue to
be in custody until the sum of ¢6,670.00 adjudged to be due to the second
respondent together with the costs thereof are satisfied. Additionally and in
the alternative the applicant also asks for any further or other orders as to
this court may seem fit.<o:p></o:p><o:p>&nbsp;</o:p>The facts
that gave rise to this application are as follows: the applicant as a result of
a business transaction he had with the second respondent (hereinafter referred
to as Asare) became indebted to him in the sum of ¢6,670.00. He was unable to
pay and Asare fearing that he would flee the jurisdiction took out a writ of
summons claiming the amount and applied for an absconding warrant. When the
applicant appeared before the court on 24 February 1976 on the execution of the
warrant, he was given court bail in the sum of ¢10,000.00 with two sureties to
be justified. It was further stipulated in the order that the sureties must be
persons in possession of immovable property within the Accra-Tema metropolitan
area and that their title deeds be deposited with the court.<o:p></o:p><o:p>&nbsp;</o:p>The
applicant was apparently not able to provide the sureties and so he was
detained in custody pending the hearing and determination of the suit in
respect of which he was arrested on the absconding warrant. On 22 March 1976,
Asare, the plaintiff in the substantive suit, applied to the circuit court
under Order 14, r. 1 of L.N. 140A for leave to sign final judgment. The
application was not resisted and the judge entered judgment in the sum claimed,
i.e. ¢6,670.00 with costs assessed in the sum of ¢600.00. He then made an
additional order the subject-matter of the present application as follows: “He
shall continue to be in custody under Order 35, r. 5 until the judgment debt
and costs are satisfied.”<o:p></o:p><o:p>&nbsp;</o:p>A
preliminary objection as to the propriety of the ex parte application for leave
to apply for an order of certiorari to quash the additional order, was raised
by counsel for the second respondent, Mr. Kuenyehia. He submitted that the
statement accompanying the motion paper and supporting affidavit was defect as
it failed to comply with the formal provision of Order 59, r. 2 (2) of L.N.
140A by the failure to indicate therein the relief sought. There is no doubt
that the statement is defective but because the relief sought is contained in
the affidavit, I brushed the argument aside and relying on Order 28, r.12 I
allowed the statement to be amended at once for the purpose of determining the
real question raised. Order 28, r. 12 is 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 Court
or a Judge may at any time, and on such terms as to costs or otherwise as the
Court or Judge may think just, amend any defect or error in any proceedings,
and all necessary amendments shall be made for the purpose of determining the
real question or issue raised by or depending on the proceedings.”<o:p></o:p><o:p>&nbsp;</o:p>Even if I
had not permitted the amendment, it is my view that the point would not have
availed the second respondent in having the application dismissed in limine. In
Buako Stool v. Suhenso Stool (1956) 1 W.A.L.R. 79, Windsor-Aubrey J. faced with
a similar objection without even amending decided that the objection is not
fatal. He said at pp. 81–82:<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">“I agree
that the ex parte motion read by itself is defective in form but it is
accompanied by an affidavit which sets out fully the grounds for the
application, and paragraph 10 correctly states the relief sought. In my opinion
the motion and the affidavit should be read together as both form the
application. I am satisfied that the defect</main>