Republic v Baafo and others, ex parte Akyemah

ADJABENG JA. This is a motion ex-parte for the leave of this court “for a writ of attachment to issue against the respondents herein for the violation of the judgment of the High Court, Cape Coast dated 15 December 1992.”

It is clear from the affidavit in support of the application that judgment was given by the High Court, Cape Coast, in favour of the applicant herein for the reliefs she claimed in her counterclaim, including the recovery of the land the subject matter of the dispute. The respondents appealed against the decision to this court. And even though the respondents applied for stay of execution of the judgment, their application was refused. The applicant therefore went into execution of the judgment by applying for and obtaining a writ of possession from the High Court and this was executed on the respondents. It was when the respondents failed to respect this writ of possession issued by the High Court and executed on them that the applicant applied to the same High Court, Cape Coast which had issued the said writ of possession, for the issue of a writ of attachment against the alleged contemnors for their alleged contempt of the High Court order.

When the application came before the High Court, Cape Coast a preliminary objection was raised by the respondents’ counsel on the ground that since the appeal against the judgment was presently before this court, (the Court of Appeal), as the appeal records had been transmitted to this court, it was the Court of Appeal which was the proper forum to entertain the application. The High Court, Cape Coast upheld this preliminary objection and therefore dismissed the applicant’s application even though the applicant’s counsel had argued that that was not the position, and that rule 21 of LI 218 on which the objection was based was not applicable in the circumstances of this case. I find it worthwhile to quote the relevant portion of the court's ruling. It states:

“Mr Ahenkorah then referred to rule 21 and submits that after entry of the appeal in the cause list then every application must be made at the Court of Appeal but not there. Mr Oduro, in reply, referred to Order 42 rule 8 of the High Court (Civil Procedure) Rules of 1954 (LN 140A) and urged me to conclude that an attachment is part of an execution process and so rule 21 of the LI 218 does not apply. The latter rule refers to every application. It would be therefore wrong to say that it is not applicable to an appli