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July 12, 1976
HIGH COURT
GHANA
CORAM
JUDGMENT OF TAYLOR J.
This is an application for an order of certiorari to quash an order made by the circuit court on 22 March 1976, whereby the circuit court judge proceeding under the provisions of Order 35, r. 5 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), ordered that the applicant already in custody should continue to be in custody until the sum of ¢6,670.00 adjudged to be due to the second respondent together with the costs thereof are satisfied. Additionally and in the alternative [p.102] the applicant also asks for any further or other orders as to this court may seem fit.
The facts that gave rise to this application are as follows: the applicant as a result of a business transaction he had with the second respondent (hereinafter referred to as Asare) became indebted to him in the sum of ¢6,670.00. He was unable to pay and Asare fearing that he would flee the jurisdiction took out a writ of summons claiming the amount and applied for an absconding warrant. When the applicant appeared before the court on 24 February 1976 on the execution of the warrant, he was given court bail in the sum of ¢10,000.00 with two sureties to be justified. It was further stipulated in the order that the sureties must be persons in possession of immovable property within the Accra-Tema metropolitan area and that their title deeds be deposited with the court.
The applicant was apparently not able to provide the sureties and so he was detained in custody pending the hearing and determination of the suit in respect of which he was arrested on the absconding warrant. On 22 March 1976, Asare, the plaintiff in the substantive suit, applied to the circuit court under Order 14, r. 1 of L.N. 140A for leave to sign final judgment. The application was not resisted and the judge entered judgment in the sum claimed, i.e. ¢6,670.00 with costs assessed in the sum of ¢600.00. He then made an additional order the subject-matter of the present application as follows: “He shall continue to be in custody under Order 35, r. 5 until the judgment debt and costs are satisfied.”
A preliminary objection as to the propriety of the ex parte application for leave to apply for an order of certiorari to quash the additional order, was raised by counsel for the second respondent, Mr. Kuenyehia. He submitted that the statement accompanying the motion paper and supporting affidavit was defect as it failed to comply with the formal provision of Order 59, r. 2 (2) of L.N. 140A by the
AI Generated Summary
Taylor J. in the High Court considered an application by an indebted businessman to quash a circuit court order that he remain in custody until paying ¢6,670.00 due to creditor K. Asare, plus ¢600 costs. After Asare feared flight and obtained an absconding warrant, the applicant failed to meet stringent bail terms requiring property-owning sureties, was detained, and judgment was later entered under Order 14, r. 1. The circuit judge then relied on Order 35, r. 5 to continue custody. Taylor J. rejected a preliminary objection to the certiorari application by Asare’s counsel, Mr. Kuenyehia, and held Orders 69, rr. 1 and 11 apply to post-judgment default, not this scenario. Interpreting Order 35, r. 5, he equated “until execution” with “until judgment satisfied,” but condemned indefinite detention as unlawful in light of Order 69, r. 9’s mandatory limits. Recognizing certiorari’s reach over “speaking orders,” he instead used article 114’s supervisory power to direct the circuit court to set aside and substitute a lawful order, with any custody period running from 22 March 1976. The application was granted in part.