BENJAMIN ANOE QUARCOO & JOSEPH TETTEH QUARCOO vs. MR. ANTWI & JESSIE'S BLOCK WORKS [2008]DLCA6658

BENJAMIN ANOE QUARCOO & JOSEPH TETTEH QUARCOO vs. MR. ANTWI & JESSIE'S BLOCK WOR... [2008]DLCA6658

Date	2008-06-22
Suit No.	CIVIL APPEAL NO. 137/99
Citation No.	[2008]DLCA6658

QUAYE J.A. [PRESIDING]

DOTSE J.A.

APALOO J.A

MR. W.A.N. ADUMUA-BOSSMAN FOR PLAINTIFFS/APPELLANTS

MR. DAVID NII-AMPONSAH FOR DEFENDANTS/RESPONDENTS

[2008]DLCA6658
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													<main id="main" class="content" style="min-height: 60rem" >BENJAMIN ANOE QUARCOO
&amp; JOSEPH TETTEH QUARCOO<o:p></o:p>vs.<o:p></o:p>MR. ANTWI &amp; JESSIE'S
BLOCK WORKS<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

CIVIL APPEAL NO. 137/99&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 22ND JUNE, 2008<o:p></o:p>

MR.
DAVID NII-AMPONSAH FOR DEFENDANTS/RESPONDENTS.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>QUAYE, J.A. <o:p></o:p>This
appeal is from the ruling of the High Court, given on 10th March, 1998.&nbsp; The plaintiffs, who are the appellants
herein, commenced the action against the defendants [now respondents] on 8th
February, 1990 seeking a declaration of title to a parcel of land described in
the writ of summons; recovery of possession, and other relief.&nbsp; The plaintiffs/appellants, claiming that they
were unable to effect direct or personal service on the respondents, filed an
application on 8th February, 1996 for an order for substituted service. This
application was heard and granted on 12th February, 1996.&nbsp; The record of appeal shows that the
appellants pursued the action and obtained judgment in default of appearance,
judgment in default of defence and a writ of possession all between the date
the motion for substituted service was filed on 8th February 1996 and 31st July
1996 when leave to issue writ of possession was granted.&nbsp; On Monday 2nd September 1996, the appellants
began the execution process armed with a writ of possession and fifa with the
assistance of 3 bailiffs from the court and carpenters.&nbsp; On the approach of the execution party, the
respondents fled the area;&nbsp;&nbsp; The
execution process commenced; the doors and windows of some of the structures on
the land were nailed shut.&nbsp; It was a
large area, and consequently, the execution party had to break off at a stage
in time with a mind to go back to complete their assignment.&nbsp; In order to consummate the process, the
execution party, on behalf of the appellants, went back to the parcel of land,
the subject matter of the action in the morning of 3rd September, 1986.&nbsp; It was much to the chagrin of the execution
party when they saw that the respondents, whose houses or structures were
nailed or tightly shut the previous day, had all gone back, removed the nails
and other evidence of the execution having commenced, and re-entered the land
and property by their own authority to spite the court orders that had led to
the appellants going into execution.&nbsp; In
the eyes of the appellants, the respondents were a group of trespassers who had
entered upon land that the appellants had inherited from their father. <o:p></o:p>By
a motion filed on 3rd September 1996 the respondents prayed the court to stay
execution of the judgment that had been entered in default of defence.&nbsp; The fact that this application was filed after
the respondents had taken the law into their own hands and re-entered the land,
subsequent to the commencement of the execution process was not at all in
doubt.&nbsp; By a ruling read on 22nd October
1996, the High Court, Coram, K.K. Kurankyi, J the default judgment was set
aside. <o:p></o:p>I
should take a short break at this stage to state that the action, before it
went before Kurankyi, J, had been placed in the first instance before J.E.C.
Okai J, who made the order granting leave to the plaintiffs to serve the defendants
by substitution and subsequent to that, also entered judgment in default of
appearance in favour of the plaintiffs.&nbsp;
The motion for judgment in default of defence and the grant of same was
before Farkye J [as he then was], Farkye, J further made the orders for
possession and granted the plaintiffs/appellants leave to go into execution.<o:p></o:p>By
a motion on Notice filed on 17th&nbsp;
September 1997, the appellants sought to attach the respondents for
contempt based on the grounds as provided in paragraph 3 of the applicants
statement that: <o:p></o:p>3.&nbsp;&nbsp; Grounds of Relief, <o:p></o:p>The
defendants unlawful act of re-opening and re-occupying of their respective
houses or shacks on or about the 2nd and 3rd days of September, 1996 after the
execution bailiffs had nailed their doors and windows shut so as to exclude the
defendants therefrom in execution of the said writ of possession on the 2nd and
the 3rd days of September, 2996 whereby the plaintiffs were put in possession
of those houses or shacks in execution of the said judgment herein dated the
2nd day of July, 1996.” <o:p></o:p>The
application for attachment aforesaid was opposed to by the herein
respondents.&nbsp; By an affidavit whose
contents were deposed to by the 1st defendant on 13th October, 1997 the
respondents stated inter alias as follows:— <o:p></o:p>“5. That paragraph 6 of page 2 of the
said judgment unambiguously declares.&nbsp;
This default judgment is void because it is not warranted by rule of
procedure …..” <o:p></o:p>6. That I am advised that no valid
execution proceedings could have been properly or legitimately founded upon a
default judgment judicially declared to be void. <o:p></o:p>7.&nbsp;&nbsp;
……………………”. <o:p></o:p>The
attachment proceedings were heard by Farkye, J. [as he then was] and in the
ruling thereto delivered on 10th March, 1998, the learned judge rendered
himself as follows:— <o:p></o:p>“there is no judgment before this
court.&nbsp; Therefore the defendants cannot
be said to have disabled [sic] [disobeyed] the orders of this court for them to
be charged with contempt.&nbsp; Accordingly
the contempt proceedings brought by the plaintiffs/applicants is struck out.” <o:p></o:p>The
above account is an attempt to show the antecedents </main>