REPUBLIC vs. HIGH COURT, ACCRA: EX PARTE SINARE AND OTHER [1991]DLCA2303

Date	1991-07-25
Suit No.
Citation No.	[1991]DLCA2303

ESSIEM JA

AMUAH JA

KPEGAH JJ.A.

SAM BADDOO S.A.G. CHIEF STATE ATTORNEY (WITH HIM MRS. ANSON CHIEF STATE ATTORNEY) FOR THE APPELLANTS.

OWUSU YEBOAH FOR THE INTERESTED PARTY-APPELLANT.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1991]DLCA2303
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													<main id="main" class="content" style="min-height: 60rem" >REPUBLIC<o:p></o:p>vs.<o:p></o:p>HIGH
COURT, ACCRA: EX PARTE SINARE AND OTHER<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 404<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">

</div>COUNSEL:<o:p></o:p>SAM
BADDOO, S.A.G., CHIEF STATE ATTORNEY (WITH HIM MRS. ANSON, CHIEF STATE
ATTORNEY) FOR THE APPELLANTS.<o:p></o:p>OWUSU
YEBOAH FOR THE INTERESTED PARTY-APPELLANT.<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">

NO
APPEARANCE BY OR FOR THE RESPONDENT. <o:p></o:p>

ESSIEM,
AMUAH AND KPEGAH JJ.A. <o:p></o:p>

</div>JUDGMENT
OF ESSIEM J.A.<o:p></o:p>This is
an appeal from the ruling of the High Court, Accra constituted by Mrs
Sawyerr-Williams Ag. J. by which the learned judge quashed by certiorari an
order of the rent magistrate which set aside an order for forcible ejectment of
a tenant. That order was set aside on the ground that it had been obtained by
fraud.<o:p></o:p>The
record shows that after the order for forcible ejectment had been executed, the
tenant, who is the interested party-appellant before us, applied unsuccessfully
to set aside the execution. The record does not disclose the basis for the
application, but learned counsel for the respondent in his submissions before
the High Court indicated that the application was based on an allegation of
fraud.<o:p></o:p>Subsequent
to this refusal, the chief rent officer, upon whose recommendation the order
for forcible ejectment was made, informed the district court writing that the
recommendation he made to the court for an order of forcible ejectment was
based on a false affidavit which the landlord swore in support of his
application to the rent officer for the forcible ejectment of the tenant.<o:p></o:p>The
landlord had sworn that the tenant had absconded from the premises for about
two years and his whereabouts were unknown to him and also that the tenant owed
two years’ rent. The chief rent officer’s letter showed that these facts were
false to the knowledge of the landlord. The chief rent officer therefore
informed the rent magistrate that the recommendation his office sent to the
court was obtained by deceit and that the court should set aside the order for
forcible ejectment. The request went before another rent magistrate who found
from the evidence before him that the order for forcible ejectment was indeed
obtained by fraud and set it aside.<o:p></o:p>The order
of the court did not please the landlord, who is the respondent before this
court. Accordingly, the respondent on 4 October 1989 filed an application ex
parte at the High Court, Accra for leave to apply for an order of prohibition
and certiorari directed at the District Court Magistrate, City Court, Accra. On
5 October 1989, the High Court, Accra granted the application in the following
terms:<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">“By
court: Leave granted as prayed for. Applicant to apply for an order of
prohibition and certiorari to be directed at the District Magistrate, City
Court, Accra. This leave should act as stay of execution.”<o:p></o:p>Subsequent
to this leave, the respondent, by his solicitor, applied on notice for an order
of prohibition and certiorari directed at the District Magistrate, F. K.
Dadzie-Yorke sitting at the City Court, Accra and one Anderson, Acting Chief
Rent Officer, to prohibit them from further hearing or dealing with the suit
No. T.O.L.N. 155/89 and to bring up to be quashed by certiorari “(a) the letter
written by Mr. Anderson, Acting Chief Rent Officer to the City Court, Accra;
and (b) the proceedings and ruling of Mr F. K. Dadzie-Yorke in suit No.
T.O.L.N. 155/89 delivered on 5 October 1989.”<o:p></o:p>It is
pertinent to observe at once that no leave had been obtained to apply for an
order of prohibition and certiorari against Mr. A. Anderson. This is in breach
of Order 59, r. 2(1) of the High Court (Civil Procedure) Rules, 1954 (L.N.
140A) which provides: “No application for an order of mandamus, prohibition or
certiorari shall be made unless leave therefor has been granted in accordance
with this rule.” Under rule 2(2) of Order 59 of L.N. 140A an application for
such leave shall be made ex parte to the court.<o:p></o:p>I am not
pursuing this aspect of the matter because at the end of the hearing the trial
judge refused to quash the letter written by the acting chief rent officer.<o:p></o:p>The facts
upon which the</main>