JUDGMENT OF AZU CRABBE J.A
Azu Crabbe J.A. delivered the ruling of the court. This is an application by the plaintiff- appellant brought under rule 28 of the Supreme Court Rules, 1962 (L.I.218), for an order of the court —
(1) Calling upon or directing the receiving appointed upon an order by the High Court, to surrender forthwith to the plaintiff-appellant possession of such of the property in dispute as had been adjudged the property of the plaintiff-appellant; and (2) fixing a time limit within which the said receiver shall comply with the rest of the orders made by this court in its judgment of 7 August 1970.
In an affidavit filed by the defendant-respondent in opposition to the application, an objection is taken to the jurisdiction of this court founded upon the allegation that this is not an application contemplated by the Supreme Court Rules, 1962. Rule 28 of the Supreme Court Rules, 1962 states: [His lordship here read the provisions of the rule as set out in the headnote and continued:]
[p.350]
On 14 October 1970, the plaintiff-appellant, who was victorious in his appeal from a decision of the High Court in this case, made an application, similar to the present one, to the High Court, but this was refused by Kingsley Nyinah J. In his ruling the learned judge said:
“In the peculiar circumstances of this matter, as it now stands, I am of the view that it would not be just or convenient either to order the discharge of the receiver and manager, or else to order that he hand over and surrender the partnership properties to one or other of the parties herein. All this will be done in due time, but not just yet. When that time comes it shall then be decided who shall be entitled to take whatever is due.”
Counsel for the defendant — respondent, Mr. Campbell, has argued that before this court can entertain an application under rule 28 of L.I 218, the applicant must show that the repetition of his application before this court is permitted by some enactment. Counsel referred us to a ruling of the Court of Appeal in Tormekpey v. Ahiable, 27 January 1970, unreported; digested in (1970) C.C. 44 in which it is said:
“It seems to us that the present application is plainly misconceived. The applicant has not indicated in his notice of motion the rule under which his application is brought, but it is certainly not, and would not, be under rule 28 of the Supreme Court Rules, 1962. The second application before the circuit court was for an order to pay
