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Courts – Jurisdiction – Excess
of – Court granting liberty to
go into execution – Court
subsequently staying execution
suo motu without hearing parties
– Order in excess of
jurisdiction.
Natural justice – Audi alteram
partem – Violation – Court
staying execution suo motu
without hearing parties – Order
in excess of jurisdiction.
The High Court judge ordered the
judgment-debtor to pay the
judgment-debt and costs into
court within two months failing
which the judgment-creditor
could go into execution. The
judgment-debtor defaulted and
the judgment-creditor proceeded
into execution. Without hearing
either party, the judge verbally
directed the Deputy Chief
Registrar of the High Court to
stay execution. On the
application by the
judgment-creditor to the Supreme
Court to quash the verbal order
of the judge.
Held,
the learned judge had no power
to stay execution in the manner
he did when he had not varied
his own earlier order. He
therefore clearly acted in
excess of jurisdiction. Besides
he acted in breach of the audi
alteram partem rule by not
hearing any of the parties
before making his verbal order
to countermand his earlier
order. Accordingly, the verbal
order was null and void.
APPLICATION to the Supreme Court
for an order in the nature of
certiorari to quash a verbal
order made by the High Court
judge.
E D Kom
(with him Norvor and
Anyidoho) for the applicant.
W A N Adumua-Bossman
for the respondent.
BY COURT.
On 22 November 1993, Mr Justice
Sarpong ordered that the
defendant-judgment-debtor should
pay into court the judgment-debt
and costs within two months. The
judgment-debtor failed to comply
with the order and the time for
doing so expired. In fact the
order of 22 November 1993 gave
the judgment-creditor liberty to
go into execution if the terms
of the stay were not complied
with.
The judgment-debtor failed to
comply with the order and the
applicant sought to go into
execution in terms of the order
of 22 November 1993. But the
learned judge without hearing
any of parties and indeed on his
own volition directed the Deputy
Chief Registrar of the High
Court to stay execution.
We think the learned judge was
clearly wrong. He had no power
under any law to stop the
execution in the way he did,
when he had not varied his own
order of 22 November 1993. The
procedure he adopted is not in
conformity with any known law.
He clearly acted in excess of
jurisdiction and more so he
breached the audi alteram partem
rule.
We do not therefore find any
difficulty, in upholding the
submission of counsel for the
applicant. Accordingly the
verbal order or direction given
by the said learned judge
stopping execution in our view
is null and void and we hereby
quash same. We further order
that the Chief Registrar of High
Court should proceed to process
the application for execution
granted by the
plaintiff-judgment-creditor
forthwith. The applicant is
awarded costs assessed at
¢200,000.
(sgd) ABBAN JSC
(sgd) AMUA-SEKYI JSC
(sgd) BAMFORD-ADDO JSC
(sgd) HAYFRON-BENJAMIN JSC
(sgd) AMPIAH JSC
Application granted. Oral order
staying execution quashed with
costs.
Michael Jojo Acquah, Legal
Practitioner
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