NYONATOR AND OTHERS v. WORGBA AND OTHERS

JUDGMENT OF OLLENNU J.A.

Ollennu J.A. delivered the judgment of the court. This is an appeal against an order of certiorari made by the High Court, Ho, quashing an order of the Anlo Local Court which committed the respondents to prison for default in compliance with an order for payment of costs by instalment.

A brief history of the matter is necessary for a clear appreciation of the issues raised. The respondents, as plaintiffs, in or about 1958, instituted action against the appellants, as defendants, in the erstwhile Wego-Torgo Native Court "B" for declaration of title to and recovery of possession of a piece of land situate at a place called Afiadenyigba in the Keta District. The value of the land is stated to be about £G2,500. The Wego-Torgo Native Court "B" was established under the Native Courts (Southern Togoland) Ordinance, Cap. 106 (1951 Rev.), and had unlimited jurisdiction in land suits.

Judgment was entered for the plaintiffs in the Wego-Torgo Native Court "B" on 19 March 1959, but the same was set aside on 8 May 1962, by the High Court, Ho, on the ground of irregularity in the constitution of the trial native court. The High Court thereupon remitted the case "to the appropriate local court now having jurisdiction in the area to be heard de novo" and made the following order as to costs: "The costs in the native court already incurred and [p.470] those to be incurred at the new hearing will be in the discretion of that court in giving its judgment at the new hearing."

The case eventually came before the Anlo Local Court on 18 December 1962. On that date, the defendants objected to the jurisdiction of the local court to entertain the suit, the value of the land subject-matter of the suit being above £G200. The local court upheld the objection to its jurisdiction, dismissed the suit and made the following order as to costs: "The plaintiffs to pay the costs of the defendants in the sum of £G6 6s. 0d. in the present case before this court. The costs in the native courts to be taxed." The costs were taxed at £G118 6s. 6d.

Armed with this order for costs the defendants applied to the local court and had summons served upon the plaintiffs to appear and show cause why they should not be committed to prison for non-payment of the taxed costs; the plaintiff's failed to appear, they were then arrested, on warrant and brought before the local court, and the matter proceeded as follows:

"The plaintiffs at first denied that any costs as such had bee