JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
This appeal is against a judgment dated the 27th June, 1960, of Ollennu, J., sitting in the High Court, Accra, whereby he dismissed the claim of the plaintiff-appellant (who will hereafter be referred to shortly as the plaintiff) in favour of the defendant-respondent (who will be referred to shortly as the defendant) for the sum of £G572 15s. alleged to be the amount of rents collected by the said defendant in respect of three certain rooms in a house situate at Club Road, Accra, which the plaintiff claimed to have purchased validly at an auction sale in execution of a judgment of the now defunct Ga Native Court "B”. The action raised the issue of the legality or validity of the execution, and the conclusion or decision of the learned judge was that:
"The execution which issued upon exhibit A [the native court's judgment] is illegal and void ab initio, and everything done under that execution is itself null and void."
He gave as his grounds for this conclusion the reason that:
"The judgment exhibit A did not decree payment of money; it is merely a declaratory judgment which decrees a right in favour of Madam Molley [plaintiff in the action] to be paid fifteen shillings a month as from a particular date It is not the type of order upon which the sort of execution prescribed in Part 17 of the Procedure Regulations can apply. The decree in exhibit A gave Madam Molley a legal right which she can enforce by a court action if the right is infringed by default in the payment of any one month's maintenance; it is not a continuing decree like an order for alimony pendente lite, or for maintenance in a matrimonial suit, the payment of which can be enforced any time it falls into arrears by application to the court, without the necessity for any further steps being taken to obtain an order to perfect the original order. See Linton v. Linton (1885) 15 Q.B.D. 239; Stoner v. Fowler (1885) 13 App. Cas. 20 and Findlay v. Findlay [1947] P. 1122."
The judgment of the native court dated the 16th October, 1947, admitted at the trial as exhibit A, was in the following terms:
"Suit No. 870/47
MOLLEY versus ABERDU & PAISITON
COURT ORDER
Defendants are hereby ordered according to custom to give one room in the property to plaintiff for sleeping purposes until his death; and also to maintain the plaintiff at 15s. per month as from end of October, 1947.
Failure to comply with this order will result in executive process being issued
