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November 27, 1972
HIGH COURT
GHANA
CORAM
JUDGMENT OF ATA-BEDU J.
The facts of the circumstances leading to this appeal as presented by counsel for the appellant are that the appellant was a successful party in a suit at the Native Court B Anloga on 14 May 1953. Later the appellant applied to the District Court Grade II for a writ of possession in satisfaction of the judgment. On 3 November 1970 the appellant who was then the applicant withdrew his application. On the day the application was withdrawn the respondents who were not in court were not awarded costs. On 24 September 1971, the respondents brought an ex parte application for costs. Upon the hearing of the application, the court granted the respondents then applicants (hereinafter referred to as the respondents) costs of ¢200.00 under Order 39, r. 1 of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II for the withdrawal of the application. Subsequently the appellant herein brought an application made under Order 42, r. 1 of Schedule II to Cap. 4 for a review of the order. The ruling was delivered on 20 April 1972 and appears at pp. 12-13 of the record of proceedings. It is from this ruling that the appeal has been brought to this court on the following grounds:
[p.294]
(a) The trial magistrate erred in law in not setting aside his order of 24 September 1971.
(b) the costs of 100 cedis awarded to the defendants on 20 April 1972, are harsh and excessive.
In arguing the first ground counsel for the appellant says the sole point to consider is whether the respondents could under Order 39, r. 1 of Cap. 4, Sched. II bring an ex parte application for costs. Counsel submits that the respondents' initial ex parte application of 24 September 1971 for costs was misconceived and for that matter the magistrate was wrong in hearing the application and awarding the respondents ¢200.00 costs. According to counsel, there was no suit pending before the court as to entitle the respondents to bring the application under Order 39, r. 1. All that was pending before the magistrate was the application for the writ of possession which was an ancillary proceeding but not the original suit. Counsel refers to Vanderpuije v. Akwei [1971] 1 G.L.R. 242 on the definition of suit.
Counsel for the respondents in reply, contends that the interpretation of the circumstances in which Order 39, r. 1 is applied is a narrow interpretation and it does not accord with common sense and practice. Order 39, r. 1. he says, embraces "suits,” "claim" and "matter”; he conced
AI Generated Summary
ATA-BEDU J adjudicated an appeal arising from costs awarded after the withdrawal of a motion for a writ of possession. Moses Kwashie Agbemabiese had earlier obtained judgments in Native Court B, Anloga (1953) and the Anlo Local Magistrate Court (1962). He later moved the District Court Grade II, Keta-Anloga for a writ of possession, but discontinued the application on 3 November 1970. The respondents then obtained an ex parte costs order under Order 39, r. 1 for ¢200, which was reduced on review to ¢100. On appeal, Agbemabiese argued there was no pending “suit” and that the magistrate should have set aside the ex parte order; he also challenged the quantum. The court held the writ of possession motion was a proceeding in the action and that unsatisfied judgments remain pending, validating the costs order. It reduced the costs to ¢30 inclusive of counsel’s and dismissed the appeal subject to that variation.