REPUBLIC vs. NYAN; EX PARTE DUNCAN [1999]DLCA469

Date	1999-02-11
Suit No.
Citation No.	[1999]DLCA469

OFORI-BOATENG JA

FORESTER JA

FARKYE JA

E VA ADJETEY FOR THE APPELLANT.

KWESI CAB-ADDAE FOR THE RESPONDENT.

[1999]DLCA469
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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">REPUBLIC<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">NYAN; EX PARTE DUNCAN<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1999-2000] 1 GLR 477<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: 11
FEBRUARY 1999<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E VA ADJETEY FOR THE 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">

KWESI CAB-ADDAE FOR THE
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 1.0pt 0in">

OFORI-BOATENG, FORESTER AND
FARKYE JJA<o:p></o:p>

</div>JUDGMENT FORSTER JA.<o:p></o:p>On 22 March 1959 an appeal from the judgment of the Cape Coast
Municipal Court was filed at the Lands Court of the Central Judicial Division.
The case was titled: Aba Donkoh &amp; Or v Joseph Adzinyina Duncan. In a
consent judgment, the parties agreed that H/No B82/2 Intsin St, Cape Coast was
jointly owned by the families of both parties. It was agreed further by the
parties that the family of the plaintiff-respondent should occupy the ground
floor of the building while the family of the-defendant-appellant occupy the
top floor of the house, and that the second defendant-appellant, Aabah, was to
have the use of room No 4 during her lifetime, with a reversion to the family
of the plaintiff. Each family was to bear payment of rates in respect of the
portions of the house, given to them in the judgment. And in the event of the
house falling into ruins, the land was to go to the family of the plaintiff.<o:p></o:p>On 3 October 1995, pursuant to leave granted by the High Court,
Cape Coast, the respondent filed an application praying the court for an order
to attach the appellant who was alleged to have flouted the orders in the
consent judgment. It was the complaint of the respondent that the appellant had
in spite of the terms of the judgment, broken the lock placed on the door to one
of the rooms on the ground floor and given the room to a brother to live in.
Again, in August 1995 the appellant forcibly ejected a tenant of the respondent
from a room on the ground floor and gave the room to his relation called Adjoa
Ano to occupy. By these acts of the appellant, the respondent claimed that he
had committed contempt of court. The appellant in this appeal is a grandson of
the defendant-appellant in the 1959 appeal at the Lands Court, Cape Coast.<o:p></o:p>On 30 July 1997 the appellant was found guilty of contempt by the
High Court, Cape Coast and was ordered to pay ¢15,000 as compensation to the
respondent for the lock he broke and was also bounded in the sum of ¢500,000
for a period of 24 months. It is against this conviction and sentence that he
appealed to the Court of Appeal. In complaince with the rules, counsel for the
parties duly filed their written submissions.<o:p></o:p>Mr. Eva Adjetey, counsel for the appellant, canvassed several
grounds in his written submission. First, he submitted that the application for
the order of contempt was irregular inasmuch as it was merely captioned:
“Motion on notice.” He contended that the proper formulation of the application
ought to have been. “Motion on notice for an order of committal or to issue
writ of attachment for contempt of court.” He pointed out that the trial judge
failed to consider this issue in her judgment.<o:p></o:p>Counsel not in the least persuades me. After becoming aware of
this “irregularity”, the appellant took no steps to have the motion struck out,
but rather reacted to it by filing an affidavit in opposing in which the merits
of the respondent’s averments in his affidavit in support of his motion were
seriously disputed or challenged. Having so consoned the alleged irregularity,
the appellant cannot now be heard to urge this court to declare the notice as
void.<o:p></o:p>Again, the issue that must be considered in whether having regard
to the incomplete or truncated title of the notice, the appellant could not
have been apprised of the nature or purpose of the notice. The notice itself
expressly stated 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">“PLEASE TAKE NOTICE that this Honourable Court will be moved by
Kwasi Cab-Addae, Esq, Counsel for and on behalf of the applicant herein praying
for an order attaching the respondent for contempt of Court.”<o:p></o:p>It is thus clearly shown that the object of the notice was to
enable the applicant to move the court for an order of attachment of the
respondent for contempt of court. If irregularly captioned, the omission cannot
be said to be fatal. It is such irregularities as to form that are saved from
or cured of invalidity by Order 70, r 1 of the High Court Civil Procedure)
Rules, 1954 (LN 140A). The effect of the rule is to save an irregularity from
being declared null and void. The provisions of Order 70 r, 1 of LN 140A are 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">“1. Non-complaince with any of these Rules, or with any rule of
practice for the time being in force, shall not render any proceedings void
unless the Court or Judge shall so direct, but such proceedings may be set
aside either wholly or in part as </main>