ANARFI AND OTHERS vs. SAMAPA [1992]DLHC1969

Date	1992-04-27
Suit No.
Citation No.	[1992]DLHC1969

QUAYE J.

DICK ANYADI FOR THE PLAINTIFF-APPLICANT.

JAMES AHENKORAH FOR THE DEFENDANT-RESPONDENT

[1992]DLHC1969
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ANARFI AND OTHERS<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">SAMAPA<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1992] 2 GLR 201<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 27 APRIL
1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DICK ANYADI FOR THE PLAINTIFF-APPLICANT.<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">

JAMES AHENKORAH FOR THE DEFENDANT-RESPONDENT<o:p></o:p>

</div>JUDGMENT OF QUAYE J.<o:p></o:p>On 10 September 1991 her Lordship Lutterodt J. (as she then was)
made an order upon the defendant-respondent (hereinafter referred to as the
defendant) to file accounts of her administration/management of the estate of
the late Attafuah Agyemang Anarfi. The defendant had 30 days within which to
comply with the order which was served upon her personally on 18 September
1991. When the defendant failed or refused to comply with the order of the
court, the present application for attachment was brought against her, pursuant
to leave granted on 12 February 1992.<o:p></o:p>This application has been vehemently resisted by the defendant
contemnor. The main grounds urged on this court by Mr. Ahenkorah, counsel for
the defendant, are that the order alleged to have been breached was not served
in accordance with Order 41, r.6 of the High Court (Civil Procedure) Rules,
1954 (L.N. 140A) in that the order that was issued out and served on the
defendant omitted the memorandum to the said rule 6. It was submitted therefore
that since the plaintiff applicants (hereinafter referred to as the plaintiffs)
had failed to comply with Order 41, r.6 of L.N. 140A they would not be entitled
to demand punishment of the person against whom the order was made if that
person defaulted. Order 41, r.6 of L.N. 140A states that:<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">“6. Every judgment or order made in any cause or matter requiring
any person to do an act thereby ordered shall state the time, or the time after
service of the judgment or order, within which the act is to be done, and upon
the copy of the judgment or order which shall be served upon the person
required to obey the same there shall be indorsed a memorandum in the words or
to the effect following, viz: <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">‘If you, the within-named therein A.B. neglect to obey this
judgment (or order) by the time therein limited, you will be liable to process
of execution for the purpose of compelling you to obey the same judgment (or
order.)’”<o:p></o:p>The order of the court of 10 September 1991 calling upon the
defendant to file a statement of accounts within 30 days, and which was served
upon the defendant, was without the memorandum to Order 41, r.6 of L.N.140A and
Mr. Ahenkorah has taken exception to that contending that by reason of the
omission, the defendant cannot be said to have been duly served with the order.
In support of this contention counsel referred me to the English case of In re
Tuck; Murch v. Loosemoore [1906] 1 Ch 692, C.A. In that case the defendant was
present in the court when an order was made calling upon him to pay a sum of
money into court by a certain date. The order was served upon him one day after
the date limited for payment. The Court of Appeal held, as stated in the
headnote, that:<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">“A writ of attachment will not usually be issued against a trustee
for disobedience of an order directing him to pay money into Court unless the
order has been personally served upon him. The fact that the order was made by
consent and that he was in court when it was made and initialled one of the
briefs, will not make personal service unnecessary unless it is shewn that he
is evading service.”<o:p></o:p>Admittedly, the above cited case does not resolve the issue on
hand in the instant case. The main distinction to be drawn lies with whether
there was service in the instant case or not and if there was, whether the
omission of the memorandum was fatal. Whereas in the In re Tuck case (supra),
service was done with the usual indorsement that the defendant would be liable
to process of execution if he did not comply with the order, the fact still
remained that that order was served after the expiration of the time limited
for compliance with it. In the instant case, however, where the defendant had
up to 30 days within which to comply, the order was served upon her only eight
days after it had been made. Before I come back to determine whether the
omission of the notice of execution is fatal, I deem it appropriate to take a
look at the question of service in the Ghanaian context in the light of the
English decision in In re Tuck (supra).<o:p></o:p>The Ghanaian decisions seem to be a departure from the strict
application of personal service, relying as it were on knowledge of the
affected party of the order of the court against him. In the case of Clelland
v. Alexandra [1966] G.L.R.758, an interim injunction order was made against the
defendant. Subsequently, the order was varied upon an application by the said
defendant, and she took advantage of the varia</main>