MOSI v. BAGYINA

JUDGMENT OF AKUFO-ADDO J.S.C.

The appellant was the defendant to an action instituted by the respondent in the Native Court of Goaso/Ahafo in Asante in 1958 in respect of a piece of farm land which she, the respondent, alleged had been unlawfully occupied by the appellant. The Native Court of Goaso/Ahafo entered judgment in favour of the respondent for "possession of the disputed land with costs to be taxed." The appellant appealed from that judgment to the Asantehene's Appeal Court which affirmed the decision of the trial native court. A further appeal to the High Court, Sunyani, was dismissed by Scott J. on the 12th May, 1959.

On the 14th September, 1959, Mr. H. K. Prempeh (then at the Bar) applied to the High Court, Sunyani, on a motion ex parte on behalf of the respondent

"for an order of this court for writ of possession to be issued for the enforcement of a judgment of the Goaso Native Court as varied by the Asantehene's Appeal Court and confirmed by the Land Court, Sunyani, and for any further order or orders as to this court may seem fit."

(The variation of the judgment by the Asantehene's Appeal Court referred to in the terms of Mr. Prempeh's application quoted above did not affect the judgment for possession given in favour of the respondent by the Goaso/Ahafo Native Court and it is of no importance in this appeal).

The application was heard by Mr. Howard Christian, then a Commissioner of Assize and Civil Pleas, who ordered as follows: "Leave granted as prayed," meaning no doubt that the respondent was free to proceed [p.340] with the execution of the order for possession made by the Goaso/Ahafo Native Court by the issue out of the High Court, Sunyani, of a writ of possession. A writ of possession was subsequently issued out of the High Court, Sunyani, and executed in September 1959.

On the 1st December, 1960, Mr. Victor Owusu, counsel on behalf of the appellant, applied to the High Court, Sunyani, by motion on notice to the respondent, "asking this Honourable Court to set aside the writ of possession issued to the plaintiff."

The grounds put forward by the appellant's counsel in support of the application to set aside the order for the issue of the writ of possession were: (a) That the order was irregular because it was obtained ex parte, and (b) That the High Court had no jurisdiction to order the issue of the writ, because the decree for possession was made by the Goaso/Ahafo Native Court which was the proper court in which to issue o