JUDGMENT OF QUASHIE-SAM J.
This is an application for an order attaching the plaintiff-respondent and the deputy sheriff, District Court Grade I, Koforidua, for contempt.
The short statement of the facts in support of the application is that the plaintiff-respondent (whom I will refer to simply as the plaintiff for the purposes of this judgment) sued the defendant-appellant, the applicant in these proceedings, (whom I will refer to as the defendant in this judgment) in the District Court Grade I, Koforidua, and obtained judgment for ejectment against the defendant on 16 April 1970. The judgment ordered the defendant to vacate the premises by 30 April 1970. The defendant on the following day, 17 April 1970, lodged an appeal against the ejectment order while the appeal was pending, the plaintiff wrote applying for and obtained a writ of possession from the said district court which was executed on 1 May 1970 and the plaintiff was put into possession of the premises from which the defendant was ejected pursuant to the said judgment.
It is the contention of the defendant that by virtue of the provisions of High Court (Civil Procedure) (Amendment) Rule, 1969 (L.I.619), his appeal operated automatically as a stay of execution of the judgment given against him and that the writ of possession ought not to have been issued in favour of the plaintiff unless the plaintiff obtained an order of the court permitting her to go into execution. Therefore, contends the defendant, the plaintiff who applied for the writ of possession without leave and the deputy sheriff who caused the writ to be executed are both in contempt. The facts are not denied.
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But on behalf of the plaintiff counsel contends that since the plaintiff applied for the writ of possession and it was issued and signed by the magistrate, the plaintiff was entitled to be put into possession purely on the strength of that writ, and that there is nothing in her conduct constituting contempt.
On behalf of the deputy sheriff, counsel submits that there is no contempt committed since the deputy sheriff was bound to execute the writ of possession once it had been issued and was signed by the magistrate. Counsel concedes that, provided an appeal had been filed, L.I. 619 operates to stay execution until the court makes an order to go into execution. Counsel argues that normally the manner of obtaining such an order is by motion but that in the present circumstances, the application by the plaintiff for
