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Execution – Stay – Application
– Respondent levying execution
against applicant – Applicant
instituting action for wrongful
execution and applying for stay
of execution – Whether
application competent – High
Court (Civil Procedure) Rules
1954 (LN 140A), Or 58 r 7(1).
Execution – Judgment – Damages –
Death claim in running down
action – Damages awarded against
vehicle owner – Whether
plaintiff obliged to proceed
against insurer – Whether
execution against vehicle owner
wrongful – Motor Vehicles (Third
Party Insurance Act) 1958, No 42
of 1958 s 10.
State proceedings – Certiorari –
Error of law – Grant of stay of
execution – Order not warranted
in law – Applicant entitled ex
debito justiciae to set aside
order.
The High Court (Civil Procedure)
Rules 1954 (LN 140A) as amended
by LI 1001 of 1975 provided in
Or 58 rule 7(1) as follows:
“7(1) An appeal shall not
operate as a stay of execution
of proceedings under the
judgment or decision appealed
from except where the Court
below or the Court otherwise
orders -
(a) in the case of the Court
below, upon application made
orally or by motion on notice to
it, and
(b) in the case of the Court,
upon application made to it by
motion on notice,
and except as aforesaid no
intermediate act or proceeding
shall be invalidated.”
The applicant, the administrator
of the estate of Boateng who
died in a motor accident
successfully brought an action
in the High Court, on behalf of
the dependants for damages
against the respondent and
attached the respondent’s saloon
car in execution of the
judgement debt. The respondent
issued a writ against the
applicant and the Deputy Sheriff
in the High Court to set aside
the execution on the ground that
the applicant was not entitled
to levy execution against the
respondent’s property. The
respondent then obtained an
order for stay of execution
pending the determination of the
action and the vehicle was
released to him. The applicant
therefore applied to the Supreme
Court for certiorari to quash
the ruling of the High Court for
error of law, ie that it was not
warranted by any rule of law or
procedure. An issue that arose
for determination in the Supreme
Court was whether the applicant
was obliged to proceed under the
provisions of the Motor Vehicles
(Third Party Insurance) Act 1958
(No 42 of 1958) s 10 for the
satisfaction of the judgment in
his favour against the
respondent.
Held:
(1) It was clear from the
language of LI 1001, Or 58 r
7(1) that the appropriate time
to apply for a stay of execution
was after a judgment or a
decision. A judgment or a
decision was a sine qua non and
the application could only be
made in the suit, when the
appeal was pending. Since
judgment was yet to be given in
the respondent’s action, there
was no basis for the order
staying execution.
(2) The applicant was not
obliged to proceed under the
Motor Vehicles (Third Party
Insurance) Act 1958 (No 42 of
1958) s 10 for the satisfaction
of the judgment in his favour
against the respondent. He had
the choice to proceed against
the respondent or resort to the
Act. Yeboah v Kra [1968]
referred to.
(3) Since the ruling of the High
Court was not warranted in law
the applicant was entitled ex
debito justiciae to have it
quashed. Mosi v Bagyina
[1963] 1 GLR 337 referred to.
Cases referred to:
Mosi v Bagyina
[1963] 1 GLR 337, SC.
Yeboah v Kra
[1968] GLR 1137, CA.
APPLICATION to the Supreme Court
for an order in the nature of
certiorari to quash an order of
stay of execution by the High
Court, Kumasi.
Richard Asamoah
for the applicant.
F K Mensah
for the respondent.
WIREDU JSC.
The facts of this case reveal
that the defendant-applicant
herein is the administrator of
the estate of one John Boateng
who died in a motor accident
involving a vehicle owned by the
plaintiff-respondent. He
successfully brought an action
in the High Court sitting in
Kumasi on behalf of the
dependants of the said deceased
John Boateng and obtained a
judgment in the sum of
¢1,590,000 in favour of the said
dependants in suit No 588/89.
The facts further reveal that
the defendant-applicant
(hereafter referred to simply as
the “applicant”) subsequent to
the judgment proceeded to
recover the judgment sum against
the plaintiff-respondent (also
hereinafter referred to simply
as the “respondent”) by causing
the Deputy Sheriff to attach for
sale the property of the
respondent, to be precise, a
Mercedes Benz saloon car to
satisfy the judgement debt. The
respondent, complaining that the
execution by the applicant
against him was unjustified,
issued a writ against the
applicant and the Deputy Sheriff
in the High Court, Kumasi. The
action bears suit No CS 884/93
with the following endorsement:
“The plaintiff’s claim against
the defendants jointly and
severally is for:
(a) A declaration that the
defendants are not entitled to
go into execution against the
plaintiff in respect of the
judgment debt and cost awarded
to the 1st defendant by the High
Court of Kumasi in the case
entitled George Boateng v
Kwaku Dua being suit No CS
588/89 the judgment of which was
delivered on 25 January 1991
against the plaintiff.
(b) An order setting aside the
writ of fi fa No 16/93 issued on
20 July 1993 against the
plaintiff to sell Mercedes Benz
No ARD 5396 the property of the
plaintiff.”
The above summons was served on
the applicant with a
14-paragraph statement of claim.
Subsequent to the filing of the
above suit the respondent
brought an application to the
court for a stay of execution of
the judgment obtained by the
applicant in suit No 588/89.
This application was strongly
resisted by the applicant but
the outcome culminated in a
ruling by Buamah J dated 21
September 1993. The above ruling
resulted in the release of the
respondent’s Mercedes Benz from
attachment by the Deputy
Sheriff. The release of the car
by the Deputy Sheriff provoked
the present application before
us for an order of certiorari to
quash the ruling of Buamah J
referred to above. The grounds
for the application were that
there was an error of law on the
face of the record and that it
was incompetent for the trial
court to have entertained the
application for stay of
execution. The submissions in
support of the application can
be briefly nutshelled as
follows:
(a)
That the issuing out of
the writ in suit No CS 884/93
and the accompanying statement
of claim were misconceived in
law and;
(b)
That the application for
stay of execution culminating in
the ruling of Buamah J supra was
not warranted by any rule of
procedure or law.
For the respondent a very terse
submission was urged, that the
application for stay was
justified, as was held by Buamah
J in his ruling. No authority
was cited to support the stand
of the respondent by his counsel
who felt that the present
application was incompetent. He
argued that the only course open
to the applicant was to have
appealed against the ruling.
Two main issues are raised for
consideration by the facts of
this case. These are:
(1)
Whether the application for the
stay of execution which resulted
in the ruling of Buamah J dated
21 September 1993 was competent
and;
(2)
Whether the applicant was
obliged to reap the fruit of his
success in suit No 588/89 by
resort to the provisions of
section 10(1) of the Motor
Vehicle Third Party Insurance
Act of 1958 (No 42 of 1958).
Strangely, the respondent’s
application to the High Court
for a stay did not indicate on
the motion paper under what rule
the court was being moved. The
High Court (Civil Procedure)
Rules 1954 (LN 140A) as amended
by LI 1001 of 1975 provides
under Or 58 rule 7(1) as
follows:
“7(1) An appeal shall not
operate as a stay of execution
of proceedings under the
judgment or decision appealed
from except -where the Court
below or the Court otherwise
orders
(a) in the case of the Court
below, upon application made
orally or by motion on notice to
it, and
(b) in the case of the Court,
upon application made to it by
motion on notice,
and except as aforesaid no
intermediate act or proceeding
shall be invalidated.”
It is quite clear from the
language of the above rule that
the appropriate time to make an
application for a stay of
execution is when there exists a
judgment or a decision in a
suit. In other words the
existence of a judgment or a
decision in a suit is sine qua
non for an application to stay
execution. Such an application
can only be made in the same
suit and upon such conditions as
when an appeal is pending or
where payment of the judgment
debt is ordered on instalment
basis. Suit No 884/93 initiated
by the respondent against the
applicant is still pending. This
is clear from the opening words
of the ruling, which is to be
quashed. It begins as follows:
“This is an application to stay
execution of the judgment
recovered against the plaintiff
until the final determination of
the suit.”
No judgment or decision has yet
been given in suit No CS 884/93
to satisfy the first condition
for seeking a stay of execution.
On this ground alone the
applicant’s case is made out.
On the issue whether the
applicant was obliged proceed
under the provisions of section
10 of the Motor Vehicles (Third
Party Insurance) Act 1958, No
42/58 to reap the fruit of his
success in suit No 588/89, I am
of the view that the applicant
was not obliged to do so. He has
a choice, either to proceed
against the judgment debtor
directly or to avail himself of
the provisions of section 10(1)
of No 42 of 1958. See the case
of Yeboah v Kra [1968]
GLR 1137.
The attachment of the
respondent’s Mercedes Benz to
satisfy the judgment in Suit No
588/89 was justified under Order
42 rule 3 of the High Court
(Civil Procedure) Rules of 1954
(LN 140A). The applicant’s right
under this rule is alternative
and independent to his right
under section 10(1) of No 42 of
1958. Or 42 r 3 reads:
“3 A judgment for the recovery
by or payment to any person of
money may be enforced by the
attachment and sale of the
property of the party against
whom judgment was given or the
decree made, or subject to the
provisions of Order 69, by his
imprisonment or both.”
The choice here is the preserve
of the judgment creditor. The
applicant (the judgment
creditor) has chosen the former.
In my view he was entitled to do
so. It is clear that the
application for the stay of
execution on the facts of this
case presented to the High Court
by the respondent was not
warranted by any rule of
procedure or law. The applicant
as an aggrieved person was
entitled ex debito justiciae to
have the ruling and order
resulting therefrom quashed by
an order of certiorari. See
Mosi v Bagyina [1963] 1 GLR
337 at 342.
In the result the application
succeeds and is accordingly
granted.
ADADE JSC.
I agree.
ABBAN JSC.
I agree.
AMUA-SEKYI JSC.
I agree.
BAMFORD-ADDO JSC.
I also agree.
Application for certiorari to
quash the ruling of the High
Court, Kumasi, granted.
S Kwami Tetteh, Legal
Practitioner |
