JUDGMENT OF ANTERKYI J.
By his writ filed on 6 October 1969 the plaintiff's claim "against the defendants is for an order to set aside the purported sale of the plaintiff's cocoa farm ... by the second defendant on the alleged instructions of the third and fourth defendants to the first defendant and (2) N¢200.00 damages for trespass."
[p.348]
Upon a summons for directions being taken out, the court granted the plaintiff's application under the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 25, rr. 2 and 3 for an order setting down for hearing and disposal (before trial) the points of law raised in the pleadings, i.e. in paragraph (7) of the statement of claim, and in paragraphs (6) and (7) of the reply to the statement of defence, and paragraphs (2) and (5) of the summons for directions which are substantially these:
"(1) Whether or not L.I. 619 prevented the third defendant from going into execution while appeal is pending.
(2) Whether or not under Order 42, rule 46, the third defendant could lawfully cause the plaintiff's immovable property to be auctioned without exhausting his movable properties."
During the hearing of the arguments the following were the undenied facts in respect of which the legal points raised were to be disposed of, after the necessary evidence had been received to establish the facts about dates on which were taken certain steps relative to the proceedings and order and execution arising out of the institution of a civil action before the District Court Grade II, Offinso, entitled "Kofi Badu (the present plaintiff) v. Alfred Kwame Mensah (the present third defendant)."
In the instant case, when after several adjournments the plaintiff had applied to have his action discontinued, the trial court made the following order on 25 March 1969 as appeared at p. 6 exhibit A, certified copy of the proceedings, in the District Court Grade II, Offinso:
"By court: Case struck out for lack of prosecution as per letter for discontinuance with full costs N¢300.00 to cover all costs including the cost awarded for defendant (N¢25.00) on 28 January 1969 with liberty for fresh action. Injunction order is discharged.
(Sgd.) I.K. Marful
District Magistrate Grade II."
Thus by this order dated 25 March 1969 N¢300.00 costs were awarded in favour of the defendant (the present third defendant).
In connection with this order awarding N¢300.00 costs the plaintiff applied for a review and for a stay of execution. And the
