Enforcement of Judgments

Question 1

ENFORCEMENT OF JUDGMENTS

Answer 1

After judgment or ruling by the court, the successful party is entitled to proceed to execute the judgment or order, unless the execution of the judgment has been stayed by the court.
Note that an appeal does not automatically stay execution of judgment. Execution is the recognized method of enforcing a judgment or order of court. Some judgements are executable, and others are not - most declaratory judgements are not executable.
A judge will be executable if it orders a party to perform or abstain from an act.
Parties in a judgement; judgement creditor and judgement debtor

Question 2

Writs of Execution (Types) - O44 r 1

Answer 2

• Writ of Fi fa
• Writ of Possession
• Writ of Sequestration
• Writ of Delivery
• Writ of Specific Delivery

Others
• Garnishee Proceedings
• Stop/ Charging Orders

Question 3

WRITS OF EXECUTION

O 44 r 7

Answer 3

Writ of Execution – shall be deemed issued when it is filed and sealed by the registrar of the ct. and shall be valid for 12 months from the date of issue, although this may be extended under O 44 r 9.
A writ of execution is put to use when it is acted upon by the sheriff; the execution officer of the court. An expired writ may not be put to use, otherwise the entire execution process will be nullified.

Question 4

What can be attached for execution?

Answer 4

O 44 r 2 (5) – only the property of a judgement debtor may be attached for execution

Question 5

What happens with movable property?

Answer 5

O44 r 2 (3) – where there is movable property of the JD to satisfy the debt, that should be levied in the execution, as opposed to immovable property. When execution is levied against immovable property it shall be endorsed on the writ that there was no sufficient movable property to satisfy the judgement.

Question 6

Need for Leave to issue writ of execution - O 44 r 3

Answer 6

JC must obtain leave of the ct before executing a judgement in the ff circumstances:
• Where 6 or more years have elapsed since judgment was entered
• Where any death has taken place e.g. death of the party entitled or liable to execution
• Where the execution is against the assets of a deceased person in the hands of his executors or administrators after the date of judgement
• Where under the judgment a person is entitled to relief subject to the fulfilment of any condition which is alleged to have been fulfilled.
• Where goods to be levied are in the hands f a receiver appointed by the court.

Question 7

Barred Executions

Answer 7

When a judgement is not executed for 12 years from the date it was enforceable, a judgement creditor will be barred from executing it.

Question 8

METHDS OF EXECUTION ORDERS 43,44 &45 OF CI 4

Answer 8

First step - Successful Party will file an entry of judgement or judgement after trial (In C. Ct first step is to apply for a formal decree) – This process is to remind the JD to discharge their obligations under the judgement, and to make certain the nature of the judgement.
Where the JD fails to satisfy the judgement debt the JC may proceed to enforce the judgement after 7 days of service of the entry of judgment.

Question 9

A. Writ of Fieri Facaias (Fi fa)

Answer 9

This writ is used in judgements or orders for the payment of money; accompanied by a Praecipe detailing the particulars of attachment which detail the list of goods the sheriff is supposed to seize under the writ.
This authorises the registrar to seize and sell the judgment debtors property sufficient to satisfy the judgment debt, post judgment interest if any and execution costs. The prescribed forms (form 18 – the request and 18Athe writ) must be used with such variations as the circumstances of a particular case require

Question 10

Sale under Auction

Answer 10

The items seized are then sold usually by public auction. Under s. 17(2) of the Auction Sales Law (PNDCL 230) an auction sale resulting from a judgment debt “shall be subject to a reserve price to be determined by the court which gave the judgment.” That is the lowest price at which the property can be sold. The reserved price is fixed by the court upon application by the JC through a motion on notice to the JD.
The judgment creditor will, after the property has been seized, cause it to be valued by a valuer who would prepare a valuation report that will assess the property seized and state the market or commercial value and the forced sale value.
The court will fix the reserved price based on the forced sale value as provided by the valuation report.
The judgment debtor can challenge the value presented by the judgment creditor by submitting a rival valuation to the court. These values will guide the court upon the application to set down the reserve price. When the reserve price is set down the property would be sold at a public auction by an auctioneer appointed by the sheriff after giving appropriate notices.

Question 11

O45 r 9

Answer 11

Where the goods to be auctioned are movables, notice must be posted in the newspaper in the community or on a public notice board for 7 days, where immovable property the notice shall be for 21 days.

Question 12

Rep v. Circuit Ct Registrar, ex parte

Answer 12

Where sale is advertised for the prescribed time and the sale is postponed, the sale need not be advertised again.
The judgment creditor and debtor may agree that in lieu of a public auction the property be sold be a private treaty (O. 30 r. 2 with respect to land).

Question 13

O45 r 10

Answer 13

The auction sale must be set aside if the sale is irregular. The application to set aside an irregular sale must be brought within 21 days after the sale.
F or a sale to be set aside for irregularity, the affected party must also satisfy the ct that he has suffered substantial injury by reason of the irregularity. Manu v Yeboah

Once the sale is absolute, a certificate of Purchase shall be issued to the Purchaser. Kumah v. Himah

Question 14

Writ of Possession – O43

Answer 14

This is used to enforce a judgment or order for the recovery of possession of immovable property. Except in mortgage actions under O56; it is issued with leave of the court O 43 r 3 (2).
Leave shall not be granted until the court is satisfied that every person regardless of whether they were a party to the action or not, in actual possession of the property or any part of it has received notice of the proceedings. Notice should be sufficient to enable that person to apply to the court for any relief to which he may be entitled.

Question 15

What happens when Judgment contain both recovery of possession and payment of money?

Answer 15

Where the judgment or order contains both recovery of possession and payment of money, it may be enforced by a combined writ
S Ct in a recent practice direction stated that the rules require a judgement creditor who is applying for a writ of possession to provide a detailed description of the land or premises as defined in the judgement.

Question 16

Writ of Delivery – O43 r 4

Answer 16

This writ is used when an order is made for the return of movable property.
If the judgment provides for the delivery of goods without affording the alternative of paying the assessed value of the goods, the judgment is enforced by a writ of specific delivery.
If the judgment contains the alternative of paying the assessed value of the goods, the party prosecuting the enforcement may cause to issue a writ of delivery to recover goods or their assessed value.
He is however not permitted to enforce the judgment by a writ of specific delivery except with leave of the court.

Question 17

Writ of Sequestration – O43 r 5

Answer 17

If a time for performance is specified in or has been added to a judgment or order whether for payment of money for giving of possession of land, for delivery of goods or for any other act for e.g. abatement of a nuisance or delivery of an account, and the defendant fails neglects or refuses to obey within the time limited a writ of sequestration may by leave be issued against his property or against the property of any director or officer of a corporate defendant.

Accordingly, this is a form of contempt proceedings This also applies to persons who disobeys a judgment or order requiring him to abstain from doing an act.

Question 18

Committal for Contempt – O 50

Answer 18

Where a party fails to obey an order - the court has general power to punish contempt by committing the offender to prison. This power extends to disobedience of a judgment or order of a court. Like sequestration, committal may be ordered for refusal, failure or neglect to obey a judgement or order when a time for performance is specified and for disobedience of a prohibitive order.

Question 19

Garnishee Order – O 47

Answer 19

If the judgment debtor is himself the creditor of another known as the garnishee, it is possible to obtain an order that the garnishee should pay the judgment creditor. Money due to JD from 3rd party may be attached and used to satisfy debt. This is known as a garnishee order and is obtained in two stages.

Question 20

Charging Order – O49

Answer 20

This provides the judgment creditor with an equivalent of a mortgage over land specified in the order. Thus, subject to any prior mortgages or charges affecting that land, the judgment creditor becomes a secured creditor. Subsequently if the judgment debt remains unpaid, the judgment creditor can apply for an order for the sale of the land so charged (O. 59) so that the judgment may be satisfied out of the proceeds of sale remaining after discharge of any prior mortgage or charge

Question 21

APPLICATION FOR STAY OF EXECUTION

O 51 r 9

Answer 21

An appeal does not operate as a stay of execution, this must be applied for formally by the JD to stay the execution f the judgement.
The application could be made to the ct that entered the judgement, and upon refusal, an appeal could be repeated in the appellate court
Application is made on notice to the JC. When an application for stay of execution is pending, it shall be stayed for the period the application is pending, and where the application is refused, shall remain stayed for 7 days.

Question 22

ENFORCEMENT OF JUDGEMENT AGAINST THE STATE

State Proceedings Act 1998 (Act 555)

Answer 22

Step 1 – File an entry of judgment to be served on the AG and any other named JD
Step 2 – JC shall apply for a certificate containing the particulars of the judgement by motion Ex Parte.
Under Section 15 of Act 555 judgement entered against the Republic, or any department or employee of the Republic; then the ct shall on an application by the JC (made within 21 days from judgement) issue a certificate containing the particulars of the judgement or order to the person.
Step 3 – A copy of the certificate shall be served on the Accountant General; this is only where the judgment relates to the payment of money; in any other case the certificate will be served on the AG. (In practice, it is advised that it be served on both Accountant and Attorney General)
The certificate should specify the amount of money payable together with interest.
If the judgement or order is not satisfied by the state after the service of the certificate, the JC may proceed with any of the enforcement procedures as may suit the nature of the judgement.
Rep v. H Ct (Fast Track Division), Accra; Ex Parte A. G. ( Maud Nongo Interested Party)

Question 23

ENFORCEMENT OF FOREIGN JUDGEMENT

Answer 23

Section 81 of Courts Act – JC under foreign judgement can apply to enforce the judgement in Ghana; where the foreign country has reciprocity regime with Ghana under LI 1575; it lists the countries with reciprocity although list is outdated.

Question 24

Judgement from a foreign country may be enforced in Ghana under the ff conditions

Answer 24

a. Where it is judgement of a Superior Court
b. It is final and conclusive between the parties
c. A sum payable under the judgement other than taxes or other charges of a similar nature
d. Judgement given after the coming into force of LI granting right to enforce judgements from foreign countries
* Where country not listed, or judgement is from a lower court, the JC may issue a fresh writ to domesticate the judgement using the original judgement as evidence*

Question 25

Procedure for enforcement

Answer 25

JC may enforce a foreign judgement by applying for leave to register the judgement in the High Court – application is made by motion ex parte supported by an affidavit.
The affidavit must detail the ff:
a. Exhibit of Judgement or certified copy; if judgement not in English, must be translated and certified by a notary public
b. Personal details of JD and JC
c. JC’s entitlement to enforce the judgement
d. Judgement can be enforced at the original ct
e. If judgement is registered it will not be set aside
f. Interest due on the judgement from the original ct
g. Cedi equivalent of sums due at BoG’s prevailing rate as at the day of judgment.

Question 26

Interpleader [Order 48]

Answer 26

This is an action by a party in possession of a property, praying the Court to invite persons interested in the property to come ad contest title to the property, so that whoever acquires the legal title shall have the right to the property.
Simply put, where two or more persons claim the same property that is in the possession of a third- party, who is not making any claim to it himself, and does not know which of them has a right to it and fears he may be prejudiced by their proceedings against him to recover the property - he may commence interpleader proceedings against them.

Question 27

Registrar’s or Sheriff’s Interpleader

Answer 27

this occurs where the Registrar or other officers of the court seizes or intends to seize property by way of execution or has in his possession the proceeds of any property and a person other than the judgment debtor claims the property. The claimant (person claiming property) will file a notice of claim and the Registrar is required to initiate interpleader proceedings to determine whether the property belongs to the judgment debtor or to the claimant.

Question 28

Stakeholder’s Interpleader

Answer 28

this occurs where a person under liability for any debt (money, or goods) has been, or expects to be sued by two or more rival claimants to the money or goods. If he has no interest in the dispute, he can apply for relief by way of interpleader.
This is a hearing at which the rival claimants will be made to interplead for the real owner to be determined. The application on notice is made available to each claimant.

Question 29

Appeal Interpleader proceedings

Answer 29

As interpleader actions are regarded as interlocutory proceedings, any action after the determination of an interpleader must conform to the rules relating to interlocutory appeals – Agoti v. Agbenolu.
An appeal must be lodged within 14 days from the date of judgement