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This ruling is in respect of an
application by the defendants
herein filed on 26th
October, 2011 for an order to
stay execution of the Writ of
fieri facias pursuant to Order
45, Rule 15 of the High Court
(Civil Procedure) Rules, 2004
(C.I. 47). I would state the
relevant factual circumstances
leading to the defendants
bringing the instant motion in
order to put same in context for
clarity of reasoning.
On 12th April, 2010
the plaintiff herein issued a
writ from this court claiming
reliefs against the defendants
as endorsed therein. The
defendant on 23rd April, 2010
entered appearance by their
solicitors but failed to file
their defence within the period
stipulated by the rules of
Court. The plaintiff on 27th
May, 2010 filed a motion for
judgment in default of defence.
Before the motion could be moved
the defendants on 17th
June, 2010 filed their statement
of defence. As a result on 6th
July 2010 this court heard the
motion and adopted the defence
filed out of time. The Court
however awarded cost of
GH¢200.00 in favour of the
plaintiff and order that the
case takes sits normal course.
Subsequently application for
directions was taken on 16th
December, 2010 and the issues
set down for trial. On two
occasions namely on 23rd
February, 2011 and 18th
March, 2011 when the case came
on for hearing it could not be
heard as a result of the absence
of the defendants and their
Counsel. On both occasions the
Court awarded cost of GH¢200.00
in favour of the plaintiff
bringing the total costs awarded
to GH¢600.00 all in favour of
the plaintiff.
On 20th July, 2011
the plaintiff filed entry of
cost and same was served on the
defendants on 26th
July, 2011. Then on 4th
October, 2011 the plaintiff
requested for and obtained a
writ of fieri facias to have any
movable property of the
defendants including vehicles
and office equipment attached
for auction to defray the said
sum of GH¢600.00. It was this
recent development which
provoked the defendants to file
the instant application on 26th
October, 2011.
The basis of the defendants’
application can be found in the
affidavit in support of their
application deposed to by one
Victor Brew. The relevant
depositions are contained in
paragraphs 6 to 8 which I would
set out hereunder:
“6 That the
Defendant/Applicants have a
credible defence to the case
made against them by the
Plaintiff/Respondent.
7
That it will be easier for the
Plaintiff/Respondent to recover
cost from the
Defendants/Applicants in the
event that the Plaintiff’s case
is upheld as the
Defendants/Applicants are an
institution and officials who
can be easily traced by the
Plaintiff/Respondent.
8
That on the other hand should
the Defendants/Applicants win
the case, it may not be easy to
trace the Plaintiff/Respondent
to recover the costs.”
Now Order 45, Rule 15 under
which the defendants ground
their application provides in
rule 15(1) thus:
“15(1) Where a
judgment is given or an order is
made for the payment by any
person of money, and the Court
is satisfied, on an application
made at the time of the judgment
or order or at any time
thereafter by the judgment
debtor or other party liable to
execution
(a)
that there are special
circumstances which render it
inexpedient to enforce the
judgment or order; or
(b)
that the applicant is unable
from any just cause to pay the
money then, notwithstanding
anything in rule 2 or 3, the
Court may by order stay
execution of the judgment or
order by writ of fieri facias
either absolutely or for such
period and subject to such
conditions as the Court
considers fit.”
Rules 2 and 3 of Order 45 of
C.I. 47 provides that a judgment
or order for the payment of
money may be enforced by a writ
of fieri facias. If a
judgment-debtor satisfies the
court that there are special
circumstances which render it
inexpedient to enforce the
judgment or order; or that it is
unable from any just cause to
pay the money the Court would
stay execution of the judgment
by fieri facias.
In the instant case, from the
depositions in support of this
application the defendants have
failed to satisfy the two
conditions precedent to be
entitled to the order that they
are seeking. On the contrary
the defendants have shown that
they can pay the money being a
reputable institution and
officials.
Furthermore the defendants
complaint that the plaintiff has
not disclosed his residential
address as such it would be
difficult to trace him to
recover any money in the event
that they are successful after
the trial is disingenuous. In
the first place, the order for
costs that the plaintiff seeks
to enforce has nothing in common
with the outcome of the trial.
By Order 74, Rule 11(1) of C.I.
47 a party in whose favour costs
has been assessed by the Court
could enforce same in the same
manner as a judgment or order
for the payment of money. So
the plaintiff is entitled to go
into execution for the costs of
GH¢600.00 without waiting for
the out come of the trial of the
whole suit.
Secondly it is too late in the
day for the defendants to
complain in this application
that the plaintiff has not
disclosed his residential
address on the writ. Failure to
disclose the said residential
address is an irregularity. If
the defendants were mindful of
taking any steps with respect to
same they should have acted
timeously which they failed to
do. The effect is that they
have lost the opportunity to set
aside the plaintiff’s writ if
their application was even in
respect of that which is not the
case. Order 81, Rule 2(2) of
C.1. 47 makes it clear that “no
application to set aside any
proceeding for irregularity
shall be allowed unless it is
made within a reasonable time
and the party applying has not
taken any fresh step after
knowledge of the irregularity”.
In addition to not acting
timeously the defendants took
numerous steps after service of
the writ on them. So they
cannot be heard to complain
about the said irregularity. In
any case the defendants know the
plaintiff’s residential address
for in their statement of
defence filed on 17th
June, 2010 they stated the
plaintiff’s said address as
H/No. B 1218/21, Bubuashie,
Accra.
The defendants’ instant
application therefore lacks
merit and same is hereby
dismissed.
UUTER PAUL DERY
JUSTICE OF THE HIGH COURT
*aq*
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