NII OKAIDJA III, PERCY OKOE ADDY AND OKOE ARYEE vs. NII TETTEY AHINAKWA II (SUBST. BY FRNACIS NII AYIKAI) AND THOMAS OKINE [2010]DLSC5697

NII OKAIDJA III, PERCY OKOE ADDY AND OKOE ARYEE vs. NII TETTEY AHINAKWA II (SUB... [2010]DLSC5697

Date	2010-04-29
Suit No.	CIVIL APPEAL. NO. 34/20/2009
Citation No.	[2010]DLSC5697

ATUGUBA JSC (PRESIDING)

AKUFFO (MS) JSC

ADINYIRA (MRS) JSC GBADEGBE JSC

AKOTO-BAMFO (MRS) JSC

W.A.N.ADUMUA-BOSSMANFOR THE DEFENDANTS/APPELLANTSAPPELLANTS.

ALBERT ADAARE FOR THE PLATINITFFS/RESPONDENTS/RESPONDENTS.

[2010]DLSC5697
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													<main id="main" class="content" style="min-height: 60rem" >NII OKAIDJA III, PERCY OKOE ADDY AND OKOE ARYEE<o:p></o:p>[PLAINTIFFS/RESPONDENTS/ RESPONDENTS]<o:p></o:p>vs.<o:p></o:p>NII TETTEY AHINAKWA II (SUBST. BY FRNACIS NII AYIKAI) AND THOMAS
OKINE<o:p></o:p>[DEFENDANTS/ APPELLANTS/APPELLANTS]<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>CIVIL APPEAL. NO. 34/20/2009&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: 29TH APRIL,
2010<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>JUDGMENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>GELEGBE US:<o:p></o:p>This is an appeal from the unanimous
decision of the Court of Appeal dated 5TH November, 2008 that
affirmed the decision of the trial High Court in the matter ne ain The
circunstances under which the proceedings herein arise before is may be sleteo thus.
The defendants/appellants/appellants to whom I shall hereafter for convenient refer
as the appellants obtained judgment in a cause affecting chieftaincy before the
Judicial Committee of the Greater Accra Regional House of Chiefs on 17 February
2003 in a case entitled Nii Tetteh Ahinakwa 11 and Another vs. Nii Ayitey
Agbofu 11and Another. Subsequently, they applied for and obtained from the High
Court, Accra leave , to go into execution of the said judgment. Following the
grant of leave to the appellants, it appears that they caused steps to be taken
to enforce the writ of possession against the execution debtors in the said
action. Following the said execution, the plaintiffs/respondents/ respondents
to whom I shall hereafter conveniently refer as the respondents took out the
writ of summons herein before the High Court, Accra that sought an order
setting aside the writ of possession granted by the High Court Accra on 22 May
2007 and also an order of perpetual injunction restraining the defendants
(appellants herein) from interfering with their possession of the Gbese palace.
The action proceeded to trial at the end of which the learned trial judge of
the High Court granted the reliefs sought by the respondents. The appellants
claiming to have been aggrieved by the delivery of the High Court lodged an
appeal there from to the Court of Appeal. On the 6 November 2008, the Court of
Appeal delivered its judgment in the matter herein by which the appeal of the
appellants herein<o:p></o:p>was dismissed. The instant proceedings are
as a result of a further appeal lodged by the appellants from the decision of
the Court of Appeal.<o:p></o:p>Before
us, the parties have submitted their respective statements of case in
compliance with the rules of this court. When the matter came before us for
hearing on 12th January 2010, acting under the authority conferred on us by rule
6.8 of the Supreme Court Rules 1996 (CI 16], we raised for the consideration of
the parties the question whether the action herein, which was commenced in the
trial High Court by the issue of a writ of summons on 2nd August 2006 was
competent? The issue raised in our view by the said point touches and concerns
a matter of practice and procedure that relates to the remedy of a person whose
main complaint is that although he was in possession of the property in respect
of which execution was carried out, he was not notified in compliance with
Order 43 rule 3(3) of rules of the High Court (Civil Procedure) Rules 2004, CI
47.<o:p></o:p>The
gist of the respondents' case appears to be contained in paragraphs 10-16 of
the statement of claim filed in the matter herein. The said paragraphs averred
as<o:p></o:p>follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
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