JUDGMENT OF FRANCOIS J.
In these proceedings counsel moves on behalf of the applicant Husunugbo Hedo for an order of certiorari to quash the order of the District Magistrate, Keta, dated 25 May 1970 decreeing penalties on the failure to pay a judgment debt due to the respondents.
The facts seem to me uncomplicated. The applicant and another person were brought before the said district magistrate at Keta on a judgment debtor summons. (The proceedings before the said magistrate have been exhibited here as exhibit A). The magistrate without inquiring into the means of the applicant to ascertain whether he was wilfully refusing to pay the debt in terms of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II, Order 43, made the following pronouncement:
"Ruling.
The judgment creditors submitted that the order of the court is that the judgment debtors to pay the cost before going forward with the action. The judgment debtors took fresh action without complying with the order of the court.
Judgment creditors maintain that inasmuch as judgment debtors can pay for the services of a lawyer to go to the High Court, they are in position to pay the costs awarded against them. Judgment debtors have N¢ 20.00 in hand to pay Order: Balance N¢182.70 plus costs assessed at N¢10.00 to be paid within seven days in default judgment creditors reserve the right to imprison judgment debtors for 90 days each."
It was strenuously argued that there was no error on the face of the record as the order the magistrate made must have followed some inquiry and must have resulted from a compromise offer by the applicant. Had the matter ended there I might have accepted this argument of the respondent but on 18 May 1971, the applicant was apprehended and thrown into a Keta gaol. This is averred in paragraph (12) of the applicant's supporting affidavit. Nowhere in the respondent's affidavit in opposition is the fact that the applicant's incarceration stemmed from the order of 25 May 1970 controverted.
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I am compelled therefore to hold that that fact is not in dispute. Indeed if the applicant was serving a term of imprisonment independent of the magistrate's order one would expect an affidavit apprising this court of that fact from learned state attorney who appeared for the magistrate. My attention has also been drawn to the warrant of imprisonment in respect of the applicant and it certainly is in respect of the judgment debt.
It seems to me that for a proper determination of
