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February 5, 1971
HIGH COURT
GHANA
CORAM
JUDGMENT OF ABBAN J.
This application is brought under Order 42, r. 22 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), asking for leave to go into execution in respect of a judgment debt and costs awarded by this court on 11 June 1953. Order 42, r. 22 which is relevant to this application reads as follows: [His lordship here read the rule which is set out in the headnote and continued:] The applicant and the respondents were parties in suit No. 271/1952 entitled Messrs. C.F.A.O. v. A. K. Adjeioda. The applicant was a storekeeper keeping one of the stores of the respondents at Kadjebi, Buem. After stock taking, the respondents alleged that the applicant had incurred shortage to the tune of £1,156 17s. Consequently the respondents instituted the action referred to against the applicant for the recovery of this amount. The applicant denied liability and put in a counterclaim for £956 19s. 3d. being the refund of his security and other entitlements. When pleadings closed, the case was referred to a referee to go into the accounts between the respondents and the applicant. The referee went into the accounts and submitted his report to the court. On the whole, the referee found in favour of the applicant, and on 11 June 1953, the High Court, Accra, constituted by Smith Ag.J. dismissed the respondents' claim and entered judgment for the applicant on his counterclaim in the following manner: "I give judgment for the defendant for £956 19s. 3d. with costs. Counsel's fees assessed at £52 10s. Referee's costs at £16 16s. less amount already paid. Other costs to be taxed."
It is nearly seventeen-and-a-half years since this judgment was pronounced, so it is obvious that the applicant as the judgment-creditor, cannot go into execution without the leave of the court. Hence the present application. The applicant has set out in his affidavit the grounds for his delay and the relevant portions read:
[p.14]
"(8) That soon after the judgment, I was seriously taken ill; on my recovery I found that my lawyer the late C. C. Lokko, had also been bedridden with stroke and did not recover until his death [sic.].
(9) That I then approached the plaintiff [respondents] for the payment of the said amount but was only met with evasive answers that they were looking through their records.
(10) That the said judgment debt and costs have not been satisfied and I am informed and verily believe that in the circumstances of the case, I require leave to g
AI Generated Summary
Justice Abban considered an application by A. K. Adjeioda under Order 42, rule 22 of the Supreme (High) Court Civil Procedure Rules, 1954, seeking leave to issue execution on a 1953 High Court judgment in suit No. 271/1952, Messrs. C.F.A.O. v. A. K. Adjeioda. In that suit, C.F.A.O. alleged stock shortages against Adjeioda, a storekeeper at Kadjebi, Buem, but a referee’s report led Smith Ag.J. to dismiss the respondents’ claim and enter judgment for Adjeioda’s counterclaim for £956 19s. 3d. With over seventeen years elapsed, the respondents opposed leave, suggesting payment and asserting a twelve-year bar under the Real Property Limitation Act, 1874. The court held the respondents bore and failed to prove payment, determined the 1874 Act was not of general application in Ghana, applied the 1833 Act’s twenty-year period, found the judgment within time, and, exercising discretion under Order 42, granted leave. The court refused interest in light of Northern Assurance Co. Ltd. v. Anang, and awarded costs of N¢35.00.