LUTTERODT vs. MENSAH NYARKO AND OTHERS [1985]DLCA939

Date	1985-02-05
Suit No.
Citation No.	[1985]DLCA939

APALOO C.J.

EDWARD WIREDU JA

OSEI-HWERE J.A.

NII AMARTEI FOR THE APPLICANT.

ENOCH D. KOM FOR THE RESPONDENTS.

[1985]DLCA939
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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LUTTERODT <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 277<o:p></o:p>

DATE:
5 FEBRUARY 1985<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NII
AMARTEI FOR THE APPLICANT. <o:p></o:p>

ENOCH
D. KOM 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;
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APALOO C.J., EDWARD WIREDU AND OSEI-HWERE JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>Apaloo
C.J. delivered the ruling of the court. Some time in 1976, the applicant
instituted proceedings against the respondents for title, possession and
kindred reliefs to a piece of building land situated at Dansoman in Accra. Six
years later, that is in 1982, the High Court constituted by Mr Justice Adadevoh
gave judgment for the applicant and granted him not only title to the land and
house then built on it but the ancillary reliefs of possession, damages and
perpetual injunction. Just a fortnight after the delivery of that judgment, the
respondents appealed against it to this court and prayed for its vacation.<o:p></o:p><o:p>&nbsp;</o:p>When the
appeal was called for hearing before this court on 7 November 1983 the
respondents, as appellants, failed to appear. Accordingly, this court in
exercise of its jurisdiction under rule 23 (1) of the Court of Appeal Rules,
1962 (L.I. 218) dismissed it for want of prosecution. The way was thus clear
for the successful applicant to reap the fruits of his judgment. At his behest,
the deputy sheriff levied execution, ejected the respondents from the land and
thereafter installed the applicant into possession. There can be little doubt
that that course was perfectly lawful.<o:p></o:p><o:p>&nbsp;</o:p>Although
the judgment of the High Court stood, the respondents took what was described
as a complaint to the National Defence Committee. That body was brought into
being by section 31 of the Provisional National Defence Council (Establishment)
Proclamation (Supplementary and Consequential Provisions) Law, 1982 (P.N.D.C.L.
42). Its functions were carefully spelt out in the section that created it. It
is plain beyond the possibility of controversy that it had no power to
constitute itself into an adjudicating body and to exercise appellate,
supervisory or any jurisdiction over a court of competent jurisdiction. But
that is precisely what the respondents invited it to do. They claimed in their
so-called complaint that the judge acted incompetently in giving an order which
does not reflect the directive principle of “State Policy.” In the last
paragraph of their complaint, they appealed to the N.D.C. to order that they
re-enter the house in the interim while the N.D.C. settles the case. That body
apparently responded to that appeal because the applicant swore in his supporting
affidavit that acting on the orders of that body, the lawful process of
execution which was completed, was reversed and the respondents were forcibly
put back into possession of the house. The applicant’s plea to the High Court
to punish the respondents for their undoubted contempt was unavailing.<o:p></o:p><o:p>&nbsp;</o:p>After
committing these grave illegalities and showing such blatant disregard for the
order of a lawfully constituted court, the respondents on 18 December 1984
returned to this court and prayed that it exercise its jurisdiction under rule
23 (2) of L.I. 218 to re-enter the appeal for hearing. As we said, that
judgment had already been executed and the process taken to do so, was, as we
said, lawful. The application to relist was ex facie served on the applicant.
The object was to give him an opportunity of arguing against it. We are now
entirely satisfied on the affidavit evidence placed before us, that the
application to relist was neither served on the applicant nor his solicitor and
neither knew of its pendency in this court.<o:p></o:p><o:p>&nbsp;</o:p>The
applicant now invites us to vacate the order that relisted this appeal. It
seems clear from the spirited argument that the applicant’s counsel presented
to us that, had he known of the respondents’ motion to the court to relist the
appeal, he would have argued vehemently against it and with good reason. This
application is not founded on any specific procedural rule of this court but is
based on the general principle that where an order is made against a party ex
parte, he is entitled, ex debito justitiae to have it set aside.<o:p></o:p>