BENNEH v. THE REPUBLIC AND ANOTHER

JUDGMENT OF KOI LARBI J.S.C

He read the judgment of himself and Anin J.S.C. On 26 April 1971 we unanimously dismissed this appeal from the ruling of Aboagye J. reported in [1971] 1 G.L.R. 78, and the court intimated that it would later give its reasons for its decision. This we now proceed to do so.

By his writ of summons, the plaintiff-appellant (hereinafter referred to simply as "the plaintiff") claimed against the defendants-respondents hereafter referred to as "the defendants" for short) the following relief:

"Injunction to restrain the defendants by themselves, servants, or agents or otherwise from going into execution in the suit entitled

`In the matter of Investigation and Forfeiture of Assets (Further Investigation of Commissions Findings) (No. 3) Decree 1969, N.L.C.D. 400. Between: The State, judgment/creditor And Isaac William Benneh, judgment/debtor'."

[p.357]

In his statement of claim, the plaintiff set out as indicated in (1971] G.L.R. 78 at p. 79, the material facts upon which he relied in support of the relief claimed thus:

"1. Plaintiff has been served, at the instance of the first defendant, with a document dated 20 November 1969, entitled `Entry of Judgment-under Order 41 R.S.C.,' purporting to be an entry of judgment in this court against plaintiff for the sum of N¢15,302.46 in an alleged suit entitled Republic v. Benneh.

2. In pursuance of the said entry of judgment the sheriff has caused to issue a writ of fi. fa. for the purpose of attaching and selling compulsorily certain properties of plaintiff.

3. No unsatisfied judgment has been pronounced against plaintiff herein in favour of the State or of any other person in the sum of N¢15,302.46 or in any other sum, and there has been no suit or matter before this court with the title in paragraph 1 above referred to in which the said sum or any other sum has been claimed against plaintiff herein.

4. The said entry of judgment purports to be `pursuant to the provisions of N.L.C.D. 400.'

5. The said N.L.C.D. 400, which was made on 30 September 1969, is repugnant to the Constitution, 1969, and in particular to articles 12 and 18 thereof, wherefore the said N.L.C.D. 400 is under article 1 (2) of the Constitution, void and of no effect.

6. Plaintiff's claim therefore is under article 28 of the Constitution for an order of injunction to restrain defendants, their agents, servants and assigns from carrying out any or all of the provisions of the said N.L.C.D. 400."

The d