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Execution -
Writ of fi:fa - Judgments -
Recovery of an overdue overdraft
– Interest - Setting aside the
sale -
HEADNOTES
The plaintiff
which is the respondent herein
is a well known financial
institution carrying out banking
business in Ghana. It offered
facilities to the first
defendant a limited liability
company. The facilities were
secured by the properties of the
managing director who was the
second defendant and the third
defendant who also offered his
property as security for the
facility granted by the
plaintiff to the first
defendant. When the period of
repayment became due the first
defendant defaulted and the
plaintiff commenced an action at
the High Court, Sekondi, for the
recovery of the outstanding
balance and other reliefs
.
HELD
In these
proceedings the judgment debtor
has not demonstrated that she
complied with Order 44 r 3 of
the CI 47 as she was enjoined by
law to do. Another matter worth
considering is the fact that the
security offered for the
facility was the one sold in
execution. The indorsement was
clear that the respondent bank
was asking for the judicial sale
of the mortgaged property. The
trial judge by consent of the
parties granted the summary
judgment whereupon the
respondent proceeded to sell the
mortgaged property to satisfy
the judgment debt. We are of the
opinion that this ground of
appeal based on repealed law has
no foundation in law whatsoever.
The appeal is therefore
dismissed as without any merits.
STATUTES
REFERRED TO IN JUDGMENT
High Court
Civil Procedure Rules CI 47 of
2004
Auction Sales
Law of 1989, PNDCL 230
High Court
[Civil Procedure] Rules LN 140 A
of 1954,
CASES
REFERRED TO IN JUDGMENT
ASIEDU v
TIMBER & TRANSPORT CO. LTD
[1978] IGLR 351
CHAHIN & SONS
v EPOPE PRINGTING PRESS [1963
GLR 163 t
AKWAA II v
HAGAN [2007-08] SCGLR 200
REPUBLIC v
HIGH COURT, ACCRA; EX PARTE
YALLEY (GYANE & OR INTERESTED
PARTIES) [2007-2008] SCGLR 512
ANOKYE & ORS
v TUFFOUR [1984-86] I GLR 42,
YEBOAH v KRA
[1974] I GLR 247
BADU v ATTA
KWADWO & ORS [1971] 2 GLR 346
BOOKS
REFERRED TO IN JUDGMENT
Atkins
Encyclopedia of Court Forms in
Civil Proceedings (Second
Edition) page 30-31
DELIVERING
THE LEADING JUDGMENT
ANIN YEBOAH JSC;
COUNSEL
KWEKU GYIMAH
KYE ESQ. FOR THE PLAINTIFF
/RESPONDENT/ RESPONDENT
/RESPONDENT.
JOHN MERCER.
ESQ. WITH HIM OSEI DUAH FOR THE
2ND DEFENDANT/
APPLICANT/ APPELLANT/APPELLANT
---------------------------------------------------------------------------------------------------------------
JUDGMENT
---------------------------------------------------------------------------------------------------------------
ANIN YEBOAH JSC;
This is an appeal, the facts of
which fall within a narrow
compass and raises a procedural
issue which deals with execution
of judgments. The facts,
however, are completely devoid
of any controversy whatsoever.
The plaintiff which is the
respondent herein is a well
known financial institution
carrying out banking business in
Ghana. It offered facilities to
the first defendant a limited
liability company. The
facilities were secured by the
properties of the managing
director who was the second
defendant and the third
defendant who also offered his
property as security for the
facility granted by the
plaintiff to the first
defendant. When the period of
repayment became due the first
defendant defaulted and the
plaintiff commenced an action at
the High Court, Sekondi, for the
recovery of the outstanding
balance and other reliefs as
apparent on the indorsesment of
the amended writ of summons as
follows:
a.
Payment of ¢1,130,945.24, being
principal and interest as at
05/12/2006, representing balance
of facilities granted to the 1st
defendant by the plaintiff at
the 1st defendant’s
own request which is outstanding
and owing despite repeated
demands for due settlement.
b.
Interest at 27% from 06/12/2006
up to and inclusive of date of
final payment
c.
Recovery of an overdue overdraft
facility in the sum of
¢715,540,632.35
d.
Interest on the sum of
¢715,540,632.35 at the rate of
27% per annum from 06/12/2006 to
date of final payment
e.
AND/OR in the alternative,
judicial sale of properties
mortgaged by the 2nd
and 3rd defendants to
the plaintiff to secure the
facilities granted to the 1st
defendant.
After entering appearance to the
writ, the plaintiff applied for
summary judgment. It appears on
the record of proceedings that
by consent of both counsel,
summary judgment was entered
against the appellant on
10/3/2009 for all the reliefs
referred to above. As the
judgment debt was not satisfied
by the appellant, the respondent
on 28/07/2009 issued a writ of
fi:fa to levy execution against
the property of the appellant
which is described as № 16C
Anaji/Effia Residential Area
renumbered as H/№ 20 PT 186 used
as security for a loan
contracted by the first
defendant from the respondent
herein. In course of the
proceedings, the original second
defendant, (one Joseph kweku
Ackah) died and was substituted
by his widow Mrs. Agnes Ackah
who became second defendant and
the only appellant in these
proceedings. On the 3/02/2012,
the property referred to above
which was used as security for
the loan was sold in execution
to satisfy the judgment debt.
The appellant herein filed an
application at the High court to
set aside the sale of the
property on grounds that the
sale was a nullity.
The appellant contended that as
the writ of fi:fa was issued on
28/07/2009 and under the rules
of court it expired on
28/07/2010, there was in law no
valid writ of fi:fa existing to
warrant the attachment and
subsequent sale of the property
on 7/03/2013. According to
counsel for the appellant, the
writ of execution should not be
in existence for more than one
year before the sale.
The High Court, Sekondi refused
to set aside the sale. The
appellant lodged an appeal at
the Court of Appeal, Cape Coast,
and repeated the same argument
but the court dismissed the
appeal as unmeritorious. This
is the second appeal in this
case which has been argued on
two main grounds, namely:
1.
The Court of Appeal, Cape Coast,
held wrongly that there was a
writ of fi:fa legally and
validly subsisting as at the
time of the judicial sale of the
2nd
defendant/judgment debtor’s
property in issue and erred
thereby in holding that the sale
aforesaid was proper.
2.
The writ of fieri facias issued
in the suit was for the
attachment of movables and could
not be used for the purpose of
the attachment of the immovable
property of the 2nd
defendant/judgment – debtor.
In arguing the first ground,
learned counsel for the
appellant relied on Order 44
rule 9 (1) and (2) of the High
Court Civil Procedure Rules CI
47 of 2004 which reads as
follows:
“Order 44 rule 9 (1). For the
purpose of execution, a writ of
execution shall be valid in the
first instance for twelve months
beginning with the date of its
issue.
9 (2). Where a writ has not been
wholly executed the court may by
order extend the validity of the
writ from time to time for a
period of twelve months at any
time beginning with the date on
which the order is made, if an
application for extension is
made to the court before the day
on which the writ would
otherwise expire”
Counsel contended that as the
writ was issued on 28/07/2009 it
expired on 28/07/2010 and had
therefore ceased to be a writ
for it to be valid. He submits
that as the property was sold on
7/3/2012 after more than the
life period of the writ, the
sale was void and ought to be
set aside. This contention was
urged on the Court of Appeal.
Her Ladyship Ackah-Yensu JA
delivered in answer to this
submission as follows:
“The position of the law clearly
is that once the property of the
judgment debtor is seized or
attached by the sheriff within
the twelve months the writ of
fi:fa is duly executed under
Order 44 rule 9”
The above delivery at the Court
of Appeal has been subjected to
serious criticism by counsel for
the appellant. Counsel is of the
opinion that once execution is
not completed within a year the
writ of execution has no
validity.
Counsel for the appellant relied
on the local cases of ASIEDU
v TIMBER & TRANSPORT CO. LTD
[1978] IGLR 351 and CHAHIN &
SONS v EPOPE PRINGTING
PRESS [1963 GLR 163 to
submit that as the writ of fi:fa
was in existence for more than
one year when the execution was
not complete it called for a
renewal of the writ of
execution. The Court of Appeal
tried to draw an anology between
writ of summons and a writ of
execution which learned counsel
for the appellant found as
flawed.
The settled practice in
execution of judgments is that
the issue of a writ of fi:fa
takes place on it being sealed
at the registry of the court
which is executing the judgment
on behalf of the
judgment-creditor. Execution of
the writ by a sheriff involves
the attachment of the property
the subject matter of the
execution. If during the period
of twelve months the sealed writ
of execution has not been used
to attach a property, the rules
of court would require that the
writ of execution must be
renewed. In the delivery of the
Court of Appeal the law was
clearly stated in Her Ladyship
Ackah-Yensu’s judgment as
follows:
“The fact is that a writ of
fi:fa does not expire once the
property in respect of which it
is issued is attached or
execution levied within twelve
(12) months from the date the
writ is issued. Execution is a
process, and the procedure is
trite learning. However because
of the arguments professed in
this appeal I shall go into some
detail. Execution commences
with the filing of the Entry of
Judgment. A writ of fieri facias
being a writ of execution is
part of the execution process
used to seize or attach the
property of a judgment debtor.
Hence once the property in
question is seized the writ of
fi:fa is executed”
The effect of the writ of fi:fa
in law is to bind the property
of the judgment debtor. If the
writ is in force within the
twelve months when the property
is attached the implementary
processes like valuation of the
property, application to the
court for reserved price under
the Auction Sales Law of 1989,
PNDCL 230 and other
advertisement would follow. If
the property is attached beyond
the twelve months without any
valid renewal, the writ would
not be valid in law and the
argument from counsel for the
appellant would certainly be
valid. The interpretation being
placed on Order 44 rule 9(1) and
(2) by counsel for the appellant
is certainly flawed. A passage
from Atkins Encyclopedia of
Court Forms in Civil Proceedings
(Second Edition) page 30-31 on
Execution of Writ and
return to writ states the
practice as follows:
“The effect of the writ is to
bind the property in the goods
of the execution debtor from the
time of delivery to the sheriff
for execution
and upon receipt of the writ the
sheriff must, without fee,
indorse on the back of the writ
the hour, a day, month and year
when he received it. At the
request of the person delivering
the writ to him for execution
the sheriff must give a receipt
for it stating the day of its
delivery. The writ will then be
executed by a bailiff to whom a
warrant for the purpose
should be directed by the
sheriff in writing and the
bailiff must have a warrant in
his possession at the time of
execution”.
In our opinion, the execution of
a writ of fi:fa is done by the
sheriff through a bailiff. The
other implementary processes set
out in the Auction Sales Law of
1989 which enjoins the execution
creditor to value the attached
property, asking the court for
reserved price, advertisement
and auction are left in the
hands of the execution
creditor. If a writ of fi:fa is
executed by a bailiff by
attaching the property within a
year of its issue from the
registry, it is valid. The
other procedural formalities
referred to above may take years
but the writ of fi:fa would not
be invalid as contended by
counsel.
It is a fact of notoriety that
after a property is attached and
valued for reserved price, an
execution debtor may under the
rules of court apply to pay the
judgment debt by stated
installments which the courts
may oblige. This may run into a
period of more than twelve
months yet the writ would be
deemed as valid provided it was
executed within the twelve
months.
In Atkin’s book, supra, at page
31 the learned authors further
states the duties of a sheriff
upon execution as follows:
“The writ in terms requires
the sheriff to indorse on the
writ immediately after execution
of a statement of the matter in
which it has been executed”
Under the rules of court, it
follows that the writ of fi:fa
is executed upon the attachments
of the property and not after
the sale as counsel for the
appellant is seeking to press on
us. The implementary steps
under the law governing auction
sales are strictly reserved for
the execution creditor. The
interpretation placed on the
rules by the Court of Appeal by
treating the life of a writ of
summons like a writ of fi:fa is
not outside the rules of
interpretation as a writ of
summons is governed by the same
Civil Procedure Rules CI 47 of
2004.
In AKWAA II v HAGAN
[2007-08] SCGLR 200 this court
per Atuguba JSC said at page 211
as follows:
“It is trite principle of
construction of statutes that
have the same or similar words
which have received
construction, in a superior
court, have been repeated in a
subsequent statute in pari
materia, the presumption is that
they are so used with the same
meaning as in a prior statute”
In this case, the life of writ
of summons has been defined by
the same statute, that is CI 47,
and it would reinforce the
principles of statutory
interpretation if in the same
rules the same definition or
interpretation is placed on the
life of writ of fi:fa.
If a writ of summons should be
served within twelve months, by
analogy, the writ of execution
which is to be executed within
the same twelve months by the
same bailiffs should be in
operation till the execution is
levied to finality. The literal
interpretation which counsel for
the appellant sought to place on
the life of a writ of fi:fa was
rejected by the two lower
courts.
Assuming counsel for the
appellant’s argument is the
right approach, we are faced
with a situation whereby if the
process of execution takes over
a year or more, leave of the
court to extend time would be
sought by execution creditors on
regular basis till the property
attached is entirely sold.
Given the procedural hurdles
under the rules of court and the
Auction Sales Law PNDCL 230, the
literal interpretation advocated
by counsel would obviously work
injustice and bring more harm
than blessing to any execution
creditor who has been declared
victorious by a court of law to
recover money by sale or other
process. In the modern day
administration of the law,
jurists have veered away from
other canons of statutory
construction towards the
purposive approach.
In the case of REPUBLIC v
HIGH COURT, ACCRA; EX PARTE
YALLEY (GYANE & OR
INTERESTED PARTIES) [2007-2008]
SCGLR 512. Wood, CJ in
construing S104 of Courts Act,
Act 459 of 1993 said at page 519
as follows:
“Indeed, the purposive rule
of construction is meant to
assist unearth or discover the
real meaning of the statutory
provision, where the application
of the ordinary or grammatical
meaning, produces or yields some
ambiguous, absurd, irrational,
unworkable or unjust result or
the like”
We think that the ordinary
grammatical interpretation
placed on Order 44 (9) (1) and
(2) of CI47 by counsel for the
appellant obviously would be
absurd and irrational in its
application in the modern day
administration of justice when
execution of a judgment by fi:fa
to finality may take more than
the twelve months as advocated
by counsel . The interpretation
placed on the rules by the
learned justices of the Court of
Appeal was therefore right.
The second ground of appeal was
also based on the construction
of Order 44 rule 3 of CI 47.
According to counsel for the
appellant the respondent’s
resort to attaching the
immovable property when there
were movables made the execution
wrongful. It was not clear in
his written statement of case
whether counsel wanted to carry
this line of argument very far
to convince this court.
Under the repealed High Court
[Civil Procedure] Rules LN 140 A
of 1954, Order 42 rule 46, the
judgment creditor must attach
movables first before resorting
to immovables. The rule states
as follows
“If the judgment debtor has
sufficient movable property
within the judicial division in
which the judgment was issued to
satisfy the debt, damages and
cost recovered, his immovable
property shall not be levied
upon; but if he has not
sufficient movable property
within the judicial division it
shall be optional to the
execution creditor to levy upon
his immovable property within
the same judicial division
before levying on his movable
property elsewhere or to levy
upon the movable property such
judgment debtor wherever it may
be found within the Gold Coast,
before having recourse to his
immovable property”
It was based on this simple and
unambiguous provisions in the
repealed LN 140 A of 1954 that
cases like ANOKYE &
ORS v TUFFOUR
[1984-86] I GLR 42, YEBOAH
v KRA [1974] I GLR 247
and BADU v ATTA KWADWO
& ORS [1971] 2 GLR 346 were
decided. As pointed out by the
Court of Appeal, CI 47 of 2004
has radically changed the rules
regulating the attachments of
movables before immovable.
Under the current rules of
court, that is, CI 47 of 2004,
Order 44 rules 3 & 4, the
judgment/execution debtor must
demonstrate that he has
sufficient movables which ought
to be attached first before
resort to immovable. The rules
state as follows:
“44(3) - The immovable property
of a judgment debtor shall not
be levied in execution if the
judgment debtor shows that the
judgment debtor has sufficient
movables within the
jurisdiction to satisfy the
judgment or order and costs.
44 (4) - Where the execution is
levied against immovable
property, there shall be
indorsed on the writ of
execution a statement that there
was not sufficient movable
property to satisfy the judgment
debt”
In these proceedings the
judgment debtor has not
demonstrated that she complied
with Order 44 r 3 of the CI 47
as she was enjoined by law to
do. Another matter worth
considering is the fact that the
security offered for the
facility was the one sold in
execution. The indorsement was
clear that the respondent bank
was asking for the judicial sale
of the mortgaged property. The
trial judge by consent of the
parties granted the summary
judgment whereupon the
respondent proceeded to sell the
mortgaged property to satisfy
the judgment debt.
We are of the opinion that this
ground of appeal based on
repealed law has no foundation
in law whatsoever.
The appeal is therefore
dismissed as without any merits.
ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
S.
O. A. ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
J.
B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
KWEKU GYIMAH
KYE ESQ. FOR THE PLAINTIFF
/RESPONDENT/ RESPONDENT
/RESPONDENT.
JOHN MERCER.
ESQ. WITH HIM OSEI DUAH FOR THE
2ND DEFENDANT/
APPLICANT/ APPELLANT/APPELLANT. |
