ASANTE AND ANOTHER Vs. K COMPU SERVICES LTD [2002]DLHC1169

Date	2002-04-23
Suit No.
Citation No.	[2002]DLHC1169

APPAU J

AYIKOI OTOO FOR THE DEFENDANT-APPLICANTS.

MRS ZWENNES FOR THE PLAINTIFF-RESPONDENTS.

[2002]DLHC1169
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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">ASANTE AND ANOTHER<o:p></o:p><span style="font-size:10.0pt;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">K COMPU SERVICES LTD<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p>[2001-2002]
1 GLR 562<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: 23 APRIL 2002<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AYIKOI
OTOO FOR THE DEFENDANT-APPLICANTS.<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">

MRS
ZWENNES FOR THE PLAINTIFF-RESPONDENTS.
<o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Appau J. <o:p></o:p>This
is an application by the defendant-judgment-debtor (hereinafter referred to as
the applicants) praying this court for three orders which I reproduce below:<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)
An order staying execution of the order of this court dated 21 July 1997
forfeiting the lease agreement executed between the parties dated 9 January
1996.<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">(b)
An order setting aside the writ of possession obtained by the
plaintiff-judgment-creditors (hereinafter referred to as the respondents). <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">(c)
An order granting the applicant-lessee relief against forfeiture of the said
lease as per the grounds contained in the accompanying affidavit.”<o:p></o:p>The
application was supported by an affidavit which counsel for the applicant
relied on in his submissions.<o:p></o:p>The
respondents strongly opposed the application and filed two affidavits to that
effect on 28 May 2001 and 3 September 2001 respectively. The gravamen of the
two affidavits in opposition is that the present application is an abuse of the
court’s process since there is no suit pending before the courts to warrant it.
They also stated that since the Court of Appeal had confirmed the judgment of
the High Court and same had since gone to the registry section for execution,
the court had no jurisdiction to entertain the application as there is no
matter pending before it or any other court.<o:p></o:p>I
will determine the three orders the applicant is asking for separately. But
before I do so, I will briefly state the arguments advanced by both counsel for
and against the application. Counsel for the applicants in his submissions contended
that the action or writ instituted against the applicants by the respondent in
this court was for forfeiture of lease for non-payment of rent and that by the
time judgment was entered against the applicants they had paid a substantial
part of the rent, leaving a balance which was paid later after the judgment. He
went on to say that after judgment had been entered against them, they applied
under Order 14, r 11 of the High Court (Civil Procedure) (Amendment) (No 2)
Rules, 1977 (LI 1129) to have same set aside but their application was refused
by the court. They appealed against the judgment of the court to the Court of
Appeal but their appeal was also dismissed by the Court of Appeal. Counsel’s
contention was that their appeal was dismissed because the Court of Appeal said
the applicants did not seek a relief against forfeiture before the High Court
that tried the case and added that since it was a relief open to them, they
could always apply for same. Counsel cited Order 14, r 9 of LI 1129 and section
30 of the Conveyancing Decree, 1973 (NRCD 175) and submitted that since the
respondents did accept rents paid up in advance they had forfeited their rights
to eject the applicants fro</main>