DZOTEPE v. HAHORMENE III AND OTHERS (NO. 3)

JUDGMENT OF AMUA-SEKYI J.A.

Amua-Sekyi J.A. delivered the judgment of the court. On 27 July 1984 the High Court, Ho presided over by Apatu-Plange J. declared a judgment of the Anloga Native Court B dated 14 May 1953 null and void on the ground that it was obtained by "fraud, misrepresentation and perversity or both." It seem that the 1953 judgment had decreed title to certain lands in favour of one Moses Kwasi Agbemabiase through whom the defendant-appellant claims.

The defendant appealed to this court from the judgment of the High Court and complained at the hearing that the plaintiff-respondents had purported to go into execution under the High Court judgment by taking out a writ of possession to recover the land in respect of which the Anloga Native Court had given judgment. The defendant's motion for stay of execution came before this court (coram: Apaloo C.J., Edward Wiredu and Osei-Hwere JJ.A.) which after hearing the parties granted the application: see Dzotepe v. Hahormene III, [1984-86] 1 G.L.R. 289, C.A. Dealing with the situation created by the illegal execution undertaken by the plaintiff the court said per Apaloo C.J. at 292:

“But the respondents say it would serve no purpose because they had already gone into execution under a writ of possession duly issued by the court. If that writ was validly issued then we would not stultify ourselves by ordering a stay. But the applicant objected to the issue of that writ on the ground that it was invalid. And his reason is the one apparent on the face of the record, namely on a proper analysis of the judgment, the court below did not give judgment for the respondents for possession which could validly be enforced by a writ of possession.

That contention seems to be plainly right . . . It is elementary that the writ of possession is only issued to enforce a judgment for possession of land. If there is no judgment for possession, there plainly can be no jurisdiction to order the issuance of a writ of possession. We must therefore agree that that writ was a nullity and so were the steps taken on the strength of it. Therefore we cannot hold that there was a valid execution which precludes us from granting a stay.”

We entirely agree that since the High Court did not by its judgment decree possession in favour of the plaintiffs, they are not entitled to take out a writ of possession for the purpose of recovering possession from the defendant. Such a judgment would have described the land in respect of