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Execution - Writ of fi.fa - 44(9)(1)
and 44(9)(2) of the High Court
(Civil Procedure) Rules, 2004
(C. I. 47) -
HEADNOTES
The 3rddefendant/Judgment-debtor/respondent/applicant,
called the applicant complains
that the 1st defendant/Judgment-creditor/applicant/respondent,
called the respondent, is taking
wrongful steps in seeking to
enforce a Judgment of this
court. The respondent applied to
go into execution through the
process known as fieri facias,
fi.fa for short. An attempt was
made to evaluate the landed
properties of the applicant, a
necessary step in the execution
process. Believing that the
evaluation was embarked upon
pursuant to an order of this
court dated 24th July,
2017, and believing that it was
done in violation of the said
order of this court, the
applicant has brought this
application to challenge the
execution process in question.-
HELD :-
The Registrar of this court may
seek the aid of the Police as
well as other court officials or
other recognized persons
including valuers to help him
carry out execution of the
court’s judgment which has been
duly entered, and where the
appropriate execution process
has been invoked at this court’s
registry. These are purely
administrative steps which do
not require an order of the
court. Further, counsel referred
to exhibit AG 4 and said there
is nothing therein attaching the
applicant’s property and so
should be set aside. This
argument is not factually
correct because on the face of
Exhibit AG 4 it is stated that
“one residential property at
Kpehe, Accra” was attached by
the Sheriff. In sum, I find no
merits in the application and I
dismiss same accordingly
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules, 2004 (C. I. 47) 44(9)(1)
and 44(9)(2)
CASES REFERRED TO IN JUDGMENT
ACKAH v GHANA COMMERCIAL BANK
(2013-2014) 2 SCGLR 1157.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
BENIN, JSC:-
COUNSEL.
OSAFO BUABENG FOR THE APPLICANT
GODFRED YEBOAH ODAME, DEPUTY
ATTORNEY-GENERAL FOR THE
RESPONDENT
RULING
BENIN, JSC:-
The 3rd
defendant/Judgment-debtor/respondent/applicant,
called the applicant complains
that the 1st
defendant/Judgment-creditor/applicant/respondent,
called the respondent, is taking
wrongful steps in seeking to
enforce a Judgment of this
court. The respondent applied to
go into execution through the
process known as fieri facias,
fi.fa for short. An attempt was
made to evaluate the landed
properties of the applicant, a
necessary step in the execution
process. Believing that the
evaluation was embarked upon
pursuant to an order of this
court dated 24th
July, 2017, and believing that
it was done in violation of the
said order of this court, the
applicant has brought this
application to challenge the
execution process in question.
The respondent filed an affidavit in
opposition challenging the
factual basis of the
application, inter alia. The
respondent deposed to the fact
that the execution process
commenced with a writ of fi.fa
issued in January 2015 and
repeated in January 2016.
Consequently, the execution is a
continuing one.
The depositions in the affidavit in
opposition offered the applicant
ammunition with which to launch
an attack against the entire
execution process, thereby
abandoning his original grounds
in support of the application.
Counsel for the applicant made
some interesting points which
are worth considering,
especially having regard to the
dearth of authority in this area
of practice in this country and
even in other common law
jurisdictions.
I shall consider the various points
that Counsel for the applicant
raised one after the other, and
the responses thereto. To begin
with, Counsel made reference to
Order 44 rule 9 sub-rules 1 and
2, and said the writ of fi.fa
issued in January 2015 was
renewed in January 2016 without
an order of the court, and was
thus void, thereby rendering all
the ensuing execution processes
null and void.
In his response, the Honourable Deputy
Attorney-General said the
condition precedent for the
renewal of a writ of fi.fa had
not arisen, at the time the
second one, exhibit AG 3 was
issued. This is so because the
first one, viz Exhibit AG 2 had
not expired before the second
one was issued. Consequently,
all the execution processes
following the issuance of
Exhibit AG 3 were valid. And
once the writ of fi.fa has been
executed by attachment, there
was no need for a renewal, on
the strength of the authority of
ACKAH v GHANA COMMERCIAL BANK
(2013-2014) 2 SCGLR 1157.
The relevant provisions in the High
Court (Civil Procedure) Rules,
2004 (C. I. 47) are the
following:
44(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.
44(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 one time
beginning with the day 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.
These provisions are very clear and
leave no room for any ambiguity.
They apply when an applicant
intends to renew a writ of
execution which is due to
expire. They have nothing to do
with a freshly issued writ of
execution, albeit a second one.
I have considered the fact that
the rules do not talk of another
writ of execution being issued
whilst an earlier one has not
expired and could thus be
renewed. The maxim is that ‘one
judgment, one execution’. I have
placed such a scenario vis-à-vis
the situation whereby an
applicant is still entitled to
apply for another writ of
execution to be issued even
after the first one has expired
through the effluxion of time.
In other words, an applicant for
a second writ of execution is
not shut out because a writ has
expired. And even where he has
committed a blunder in
procedure, such defect or
default may be cured under the
provisions of Order 81 of the
High Court Rules. The issuance
of a fresh writ of fi.fa before
the first one has expired is not
illegality per se and should
thus be treated as an
irregularity when no execution
has taken place in respect of
the first one. I would venture
to suggest that implementation
of any action on the second writ
would be put on hold by the
Registrar until after the expiry
of the first writ. If any
property has been attached under
the first writ of fi.fa, then
legally execution has taken
place and must continue to the
end under that writ.
What are the facts in this case? On 9th
January, 2015 the respondent
filed an application for a writ
of fieri facias to issue, at the
Supreme Court. A copy was
directed for service on the
applicant. It appears from the
submissions of both counsel that
the said writ was legally valid
as of that date, 9th
January 2015. By existing law on
interpretation it was due to
expire on 8th January
2016. Barely two or three days
for the said writ to expire, the
respondent filed another writ of
fi.fa on 6th January
2016 again at the Supreme Court.
Mindful of the fact that the
Supreme Court rules do not
contain execution forms and in
line with existing practice, the
Registrar of the Supreme Court
normally uses the forms at the
High Court to enforce judgments
and orders of this court. The
writ of fi.fa was enforced at
the High Court Sheriff Office.
On 6th January 2016,
the High Court Sheriff filed a
notice that his office had
seized the applicant’s property
in execution under writ of fi.fa
dated the 9th day of
January, 2015; that is the first
writ filed by the respondent
herein at this court’s registry
The import of this endorsement was
four-fold, viz (a) no execution
took place under the second writ
filed on 6th January,
2016; (b) attachment of the
applicant’s property took place
under the first writ of fi.fa
filed on 9th January
2015; (c) the seizure of the
applicant’s property in
execution took place within the
period of validity of the first
writ; (d) the second writ was
thus rendered otiose and
ineffectual. Thus once the
execution had commenced before
the expiry of twelve months,
there was no need for a renewal
of the first writ, on the
strength of the authority of
Ackah v GCB, supra. The
principle is the same in
England.
Counsel also said the writ of fi.fa
was issued by the High Court
without an order of this court.
A look of the document shows a
notice of due attachment of
property by the Sheriff of the
High Court. It is not the same
thing as the High Court issuing
the writ of fi.fa. The
application for a writ of fi.fa
was filed at the Supreme Court
Registry, therefore in the
absence of clear evidence to the
contrary, the court should
accept that the writ was issued
from this court’s registry but
was executed by the Sheriffs
attached to the High Court at
the instance of the Registrar of
this court. The Registrar of
this court may seek the aid of
the Police as well as other
court officials or other
recognized persons including
valuers to help him carry out
execution of the court’s
judgment which has been duly
entered, and where the
appropriate execution process
has been invoked at this court’s
registry. These are purely
administrative steps which do
not require an order of the
court.
Further, counsel referred to exhibit
AG 4 and said there is nothing
therein attaching the
applicant’s property and so
should be set aside. This
argument is not factually
correct because on the face of
Exhibit AG 4 it is stated that
“one residential property at
Kpehe, Accra” was attached by
the Sheriff.
In sum, I find no merits in the
application and I dismiss same
accordingly.
A. BENIN
(JUSTICE OF THE SUPREME
COURT)
COUNSEL
OSAFO BUABENG FOR THE APPLICANT
GODFRED YEBOAH ODAME, DEPUTY
ATTORNEY-GENERAL FOR THE
RESPONDENT |
