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RULING

EDWARD WIREDU, J.S.C.:

In this case the applicant is seeking an Order of Certiorari to quash in this court a ruling of an Accra High Court presided over by His Lordship Mr. Justice S.T. Farkye dated April 21, 1998.  By the above ruling the Court Stayed the Execution of a Judgment debt of an Accra High Court, affirmed by the Court of Appeal and this Court given on 28th March, 1996 And 12th March, 1997 respectively, and ordered the payment of the Judgment Debt by instalments in favour of the Respondent.

The applicant contends in the first place that, the High Court does not have an express power legally to authorise the payment of the Judgment Debt by instalments and secondly that the judgment being that of the Supreme Court, the High Court did not have power to order payment by instalments claiming that the High Court being a lower Court.  The Supreme Court ended its judgment in this case as follows:

“The cross appeal is therefore allowed, and the award of the High Court restored” without any further directives.

In his supporting Affidavit the applicant states as follows:

“7. That on 12th March, 1997 the Supreme Court dismissed the Plaintiff’s Appeal and allowed my Cross-Appeal.  A copy of the judgment of the Supreme Court is Exhibited hereto and marked “VK2”.

8.  That Plaintiff after the Supreme Court judgment refused to abide by it, did not file any review but rather filed a Motion on Notice for Stay of Execution pending the Hearing of a review purported to have been filed by her in the Supreme Court.  A copy of the said Motion and Affidavit are Exhibited hereto and marked “VK2”.

9. That the Plaintiff/Respondent by paragraphs 3, 5 and 8 of her said Affidavit sworn to in support of the Application deceived the Supreme Court that she had filed a Review when no such Process had in actual fact been filed as a Search conducted in the Records of the Supreme Court revealed. A Copy of the said Search is Exhibited hereto and marked “VK4”.

10.  That I believe the Plaintiff/Respondent deliberately filed these processes with the aim to denying me that fruits of my labour in the High Court, court of Appeal and Supreme Court.  That this is further confirmed by the fact that Plaintiff/Respondent never settled nor fulfilled the records and conditions of Appeal respectively in the Appellate Courts that she appealed to. The Respondent settled the Records and fulfilled all the conditions of her Appeal.

11. That when the Motion for the Stay of Execution pending Review was called in October, 1997, Plaintiff/Respondent withdraw the Application and it was struck out.

12. That thereafter the Plaintiff/Respondent vandalized the property at Dzorwulu which the Supreme Court ordered her to vacate by removing the sliding doors, all windows, ceilings, electrical fittings, the terrazo on the floor as well the fruits trees and garden flowers in the house before vacating same in October, 1997.

13. That the Plaintiff/Respondent refused to pay the sum awarded against her but rather brought an Application at the High Court, Accra for the payment of the judgment debt ordered by the Supreme Court by instalments. A copy of the said Application is exhibited hereto and marked “VK5”.

14. That on 29th April, 1998 the High Court, Accra presided over by Mr. Justice S.Y. Farkye granted Plaintiff/Respondent Application and ordered that the judgment debt awarded by the Supreme Court be paid by installment of ¢500,000 per month.

15. That I am informed by Counsel and verily believe that the High Court of Ghana has no jurisdiction after a judgment has been entered to order payment of the judgment debt by instalments.

16. That I am further informed by Counsel and verily believe that assuming the High Court has power to order payment by instalments which is denied, the effect of such an order is to Stay Execution of the judgment debt and that since an Appeal is by way of re-hearing, the High Court of Justice has no jurisdiction to Stay Execution of a judgment of the Supreme Court and to order a judgment of the Supreme Court to be paid by instalments.

17.  That I am also informed by my Counsel and verily believe that the hearing by the High Court of the Application to pay me sum awarded by the Supreme Court in instalments and the granting of the Application were orders made without jurisdiction and constituted errors of Law by Learned High Court Judge and same must be quashed invoking the supervisory jurisdiction of the Supreme Court of Ghana”.

The Respondent resists the application and in her Statement of Case states as follows:—

“1. The application before the Court revolves around three questions of law.

2.  The first is whether the High Court has got power to Stay of Execution and order payment by instalment?

3.  The second question is whether the High Court can order Stay of Execution of judgment of the Supreme Court and the third question is whether the Supreme Court made any order apart from merely confirming the Orders of the High court.

4.  The first question can be answered by looking at Order 42 Rule 16(1)(b). The rule states as follows:—

“The Court or a Judge may at or after the time of giving judgment or making an order stay for stay of Execution until such time as they or he shall think fit”.

Order 42 Rule 40 provides that

“Where a judgment orders payment by instalment execution shall not issue until after default in payment of instalment....”

The language in order 42 leaves no doubt in any mind that the High Court can order payment by instalment. The Judge was right in concluding that he was not bound by any of the conflicting decisions of the High Court. And I would respectfully urge the Supreme Court to state in categorical term the right and power the High Court has to order payment by instalment.

A judgment creditor aggrieved by any High Court order to pay by instalment may appeal to the Court of Appeal and not by a Certiorari application to the Supreme Court. And that error is the result of serious misunderstanding of the import of the Supreme Court judgment in the present case by the applicant. The language in Order 42 is quite clear and there is no need for any special rule interpretation of the import of these rules. It is my submission that by virtues of these rules the High court may grant Stay of Execution conditionally. And such condition may include payment by instalment in respect of all orders made by the High Court. And as Justice Apaloo rightly said on the Sallah case. Where the language of a statute or an article in a constitution is clear and unambigous you do not need any special rules of interpretation and or special historical jurisprudential theories to explain the meaning of the words. The words must be construed in their ordinary meaning as the stand. Whether the High Court has power to Stay of Execution and or add condition to a judgment debt awarded by the Supreme Court is another matter. The High Court may only enforce the judgment of the Supreme Court but it cannot add or subtract from any judgment which the Supreme Court makes in addition to any previous order made by the High Court or Court of Appeal. And that leads us to the question as to what orders did the Supreme Court make. On page 7 the Supreme Court judgment states as follows:

“... the trial High Court gave judgment for the above in favour of the defendant/respondent. After examining the evidence on record and the law involved we agree with Counsel for defendant/ respondent that the Court of Appeal had no legal justification for disturbing the verdict of the High Court ....

The cross appeal is allowed and the award of the High Court restored”.

From the forgoing one can see that the Supreme Court merely confirmed the judgment of the High Court. If the Supreme Court had made any other order then I would concede that the High Court would not have the power to interfere with awards made by the Supreme Court. It would merely have to enforce the order of the Supreme Court. The basic problem with this application is the assumption that the Supreme Court made different awards from what the High Court did. It is my submission that where the Supreme Court merely confirm orders already made by the High Court then the High Court would still have the power to exercise its right under Order 42 Rule 16(1)(b) and Rule 40. But where the Supreme Court varies the order of the prior Court then the duty of the High Court would be merely to enforce the order of the Supreme Court without exercising any power under Order 41 Rule 10.

In the circumstances I would urge the Court to dismiss the application as unmeritorious”.

It is true that the case law in this area of our jurisprudence is made up of a number of conflicting High Court decisions and that this case offers us an opportunity to deal with the matter to set to rest or to clear any further doubts as to the question whether the High Court has power to order the payments of a Judgment debt by instalments.

I will in this opinion attempt to deal with the case law referred to by the parties, examine them carefully in order to arrive at a conclusion which in my respectful view accurately states the correct position of the law having regard to the practice and laid-down rules as have been referred to and analytically discussed in this case.

A careful examination of the case law in this area of our jurisprudence reveal that there are two Schools of thought.  One School of thought spearheaded by Taylor J. (as he then was) begins with the case Standard Bank West Africa Limited vrs. Boaitey (1971) 2 GLR 32.  His Lordship claims in that case that the High Court has no such jurisdiction. The other School of thought that the High Court has such power is led by Mensah Boison J. This view is supported by Amoa Sakyi J., in the case of Cabco Metals Limited vrs. Ghana Commercial Bank Limited (1981) GLR 810.

The real issue for consideration in this case, to my mind is an answer to the question, which of the two views represents the position of the law.

There are two recognised categories of a Stay of Execution namely:

(a)  A grant Absolute and

(b)  A conditional Stay of Execution

A Stay of Execution granted on condition may spell out the terms of the conditions under which the judgment debt is to be stayed. One such conditions is to order that the Judgment Debt be paid by instalments. This is the combine effect of Order 42 Rules 16(1)(b) and 40 of LN 140A which read respectively:

“Order 42 Rule 16(1)(b):  The Court or a Judge may, at or after the time of giving judgment or making an order, Stay of Execution until such time as they or he shall fit.”

“Order 42 Rule 40 reads: Where a judgment orders payment of money by instalments, execution shall not issue until after default in payment of some instalment according to the order, and execution of successive executions may then issue for the whole money then remaining unpaid, or for such portion thereof as the Court orders, either when making the original order or at any subsequent time.

To hold otherwise will make nonesense of the clear and unambiguous language of the above Rules.

The combine effect of Rules 16(1)(b) and 40 supra confer by necessary implication a power or authority on the High Court to order a Stay of Execution and order payment of a Judgment debt by instalments.

Order 42, 16(1)(b) of LN 140A supra specifically gives power to the High Court to Stay of Execution. A discretion given to the Judge or the Court by the Phrase “until such times as he shall think fit in that Rule”.

Rule 16(1)(b) supra read along with Rule 40 clears all doubts that may be entertained about the power of Court to grant a stay and order the judgment debt to be paid by instalments. The fact that an express power procedurally has been conferred elsewhere in the English Courts recently not withstanding, the implication of the two provisions authorising the High Court is not in doubt.

Be that as it may Order 74 of LN 140A provides:

“Where no provision is made by these Rules the procedure, practice and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the Supreme Court of the Gold Coast”.

This is the Law on the ground now, which is to be applied by the High Court where no provision expressly exists. From the applicant's own Statement of case the English Courts now have express power to grant what he is now complaining about. By resort to Order 74 supra, I think one would be justified to say that the conclusion arrived at by Farkye in his ruling now being questioned is supported procedurally which takes a retrospective effect in its operation.

In the case Mosi v. Bagyina (1963) GLR 337 at 338. Holding one makes it clear that:

“The High Court acts under Order 47 only where, either in its original or in its appellate jurisdiction, it has itself made an order or given a judgment for the recovery or delivery up of possession. The High Court does not decree or order possession where in its appellate jurisdiction, it merely affirms a decree or order or judgment for possession made by a lower court. It follows therefore that Mr. Commissioner Christian sitting in the High Court, Sunyani, had no jurisdiction to order the issue of the Writ of possession and the order was there void”.

The Supreme Court in this case did not make any order of its own, it merely restored the High Court Order.

It follows from the above that since, neither the Appeal Court nor this Court made any orders of their own but merely affirmed the order of the High court that, the respondent pays the Appellant that amount decreed to be paid in and in respect of which Execution was sought to be stayed, the High Court was the proper forum where the application for a stay ought to be made.  I must also state here that by an accepted conventional practice, all orders of the Courts for Appeal and Supreme Court from time past have been enforceable at the level of  trial Courts where the process of Execution is convenient and where facilities also exist and are available for expeditious Executions unless otherwise stated in its judgment or order of the Court.

The above disposes any doubt as to the forum where the enforcement of the judgment debt is to be Executed.  I must further state that the Supreme court rules do not specifically provide how execution of  its judgment are to be carried out, save that by article 129(4) it's jurisdiction is necessary implication include all the powers, authority and jurisdiction vested in all other Courts. See Rule 28 of C.I. 16.

In conclusion I am of the view that the stand of the Respondent as presented in her Statement of Case is the right stand and is to be preferred to the stand taken by the Applicant. I also affirm the stand of the School of thought to the effect that the High Court has power under LN 140A to grant a Stay of Execution of a judgment debt and to order the payment of a judgment debt by instalments as the right one and I therefore support same.

If therefore in this case Farkye J. (as he then was) erred in making the order which is being questioned now in this proceedings, his error was within jurisdiction which entitled the applicant to appeal against and he should not have resorted to a redress by the Supervisory jurisdiction of this Court.

KPEGAH, J.S.C.:

This is an application invoking the supervisory jurisdiction of this Court to quash a ruling dated 28th April 1998, by an Accra High Court presided over by Farkye J. The antecedents of this application, captured briefly, are that the applicant, Dr. Victor Kumoji, and one Lucy Asare (hereinafter referred to as the respondent) consorted together for sometime with a possible intention of getting married but the centre could not hold for them and, naturally, anarchy was loosed upon their world.  The respondent then issued a writ against the applicant claiming a number of reliefs; namely

(a)  an order of the court requesting the applicant to transfer to the respondent a house he had gifted to her and which she had refurbished at a cost of $48,489.4 U.S. dollars.

(b)  ¢10,000,000 damages for breach of promise of marriage,

(c) refund of $86,778.5 being monies expended on behalf and at the request of the applicant;

(d) 30% interest on the said $86,778.5 U.S. dollars.

The applicant denied the claim and in a counterclaim sought an order of ejectment from the house being claimed by the respondent as having been gifted to her. He also claimed an account of the rents collected from the applicant's houses at the airport residential area and at Kanda from 1987 to 1991.  The respondent's claim was dismissed by the High Court but the applicant's counter-claim was allowed by the Court, which ordered the ejectment of the respondent from the house she claimed was gifted to her.  But following a concession by the applicant he was awarded a 50% of the rent from only the house at airport residential area between 1989-1991.

The respondent mounted an appeal to the Court of Appeal while the applicant also cross-appealed to the said Court of Appeal.  The Court dismissed the respondent's appeal and allowed the applicant's cross-appeal.  The same scenario was enacted in this Court by the parties with the same result — that is to say, the appeal of the respondent was dismissed while the cross-appeal of the applicant against part of the orders of the Court of Appeal was allowed.  After certain processes were initiated by the respondent in this Court but later withdrawn, she filed a motion at the High Court seeking an order for payment of the judgment debt by instalments.  The application was resisted by counsel for the applicant on the ground that the High Court has no jurisdiction to make an order for the payment of a judgment debt by instalments. And that, assuming it had such a jurisdiction, it could not exercise it in relation to a judgment of the Supreme Court exercising its appellate jurisdiction. In granting the order for the payment of the judgment debt by instalment, Farkye J. ruled that he has jurisdiction to entertain the application; and that since the Supreme Court only affirmed the judgment of the High Court he could not be said to be interfering with the Supreme Court judgment, but that of the High Court. Farkye J. therefore granted the application and ordered the respondent to pay the judgment debt by instalments of ¢500,000 per month.  This application seeks to quash the said order for instalment payment.

The case of LABONE WEAVERS ENTERPRISES LTD. V. BANK OF GHANA (1977) 2 G.L.R. 156 might have influenced the decision of Farkye J.  In that case an appeal by the judgment debtors from a decision of the High Court was dismissed by the Court of Appeal which issued the following certificate:

“The appeal is dismissed for want of prosecution.  ¢150.00 costs to the respondent”. In an application to the High Court by the judgment debtor for stay of execution and payment of the judgment debt by instalment, counsel for the respondent/judgment creditor raised a preliminary objection that in as much as the appeal was dismissed by the Court of Appeal, the High Court had no jurisdiction to entertain the application. Edusei J. (as he then was) dismissed the preliminary objection, holding that since the judgment creditor can go into execution at the High Court to realise the fruits of his labour, it stands to reason that the judgment debtor also be able to ask for stay of execution and payment by instalments.  This case will be considered later in this ruling in some further detail when I come to discuss whether the High Court has jurisdiction to stay execution and order instalment payment of a judgment of the Supreme Court decreeing the payment of money.

The instant application is based on three grounds.  The grounds are:

(a) that in Ghana the High Court has no jurisdiction to order payment of a judgment debt by instalment;

(b)  that, assuming without admitting, that the High Court had such jurisdiction in relation to its own judgment, it has no such jurisdiction to grant an order for the payment by instalment of a judgment debt decreed by the Supreme Court.

(c)  That granting of the application by the High Court for instalment payment of a judgment debt awarded or decreed by the Supreme Court constituted an error of law on the face of the record.

Whether the High Court in Ghana has jurisdiction to grant payment of a judgment debt by instalments or not has for sometime now vexed the judges and created some judicial turmoil on the jurisdictional landscape at the High Court level.  I also joined the fray in the case of FIANKUMA V. COBBINA & ANOR. (1991 2 G.L.R. 369 where, in an obiter, I expressed the view that the High Court in Ghana has jurisdiction to order payment of a judgment debt by instalment; first, by reason of legislative provisions, and in the alternative, by virtue of its inherent jurisdiction.  I do not think the matter has ever been raised at this level, so this may be the chance to come out authoritatively.

Taylor J. (as he then was) started the debate in an OBITER in the case of STANDARD BANK OF GHANA WEST AFRICA LTD. VRS. BOIATEY (1971) 2 GLR 308 where he doubted the competence of the High Court to make an order for the payment of a judgments debt by instalments.  A few months later he had the opportunity to crystalize his obiter dictum into a RATIO DECIDENDI in the case of AMO-MENSAH VRS. OWUSU (1972) 1 GLR 257.  The holding in that case is as follows:—

“In this country, only the district courts have power to order payment of debt by instalments, by virtue of the Court Ordinance; Cap 4 (1954 REV), sched. II, Order 41, r. 8. The High Court has no jurisdiction to order payment by instalments under the equivalent provisions in the Supreme (High) Court (Civil procedure) Rules, 1954 (L.N. 140A), Order 42, r 16 (1)”.

Taylor J. (as he then was) based his view on the fact that the district courts have been specifically empowered under Order 41, r 8 of Cap 4(1954 REV.), SCHED. II while no such specific provision exists in Order 42, r 16(1) of the High Court (Civil Procedure) 1954 (L.N. 140A), empowering the High Court to stay execution, and in addition order payment of debt by instalments.  He admitted the High Court’s jurisdiction to stay execution as long as possible but denied it the power to order instalment payment in the interim.  And more importantly, his views were informed by a statement in the Supreme Court Practice (Annual Practice), 1970 Vol. 1 to the effect that before the Evershed Report in 1956 “unlike the Country Courts, the High Court has no power to order the payment of a judgment debt by instalments”.

The BOAITEY and AMO-MENSAH cases were followed by Cecilia Koranteng-Addo J. in the case of CABCO METALS LTD. V. GHANA COMMERCIAL BANK LTD.  (1981) GLR. 810 where she held that inlike the  inferior courts which had power to order payment by instalments under Order 41, r.8 of the 2nd Schedule to CAP 4, the High Court had no jurisdiction to order a judgment creditor to accept payment by instalments.  She expressed the view that where, however, the parties agreed on terms whereby payment would be by instalments, the Court would incorporate those terms in the judgment.  But that the Court could not impose terms favourable to either party, be he the judgment debtor or judgment creditor in this respect.  Consequently, in such applications the judgment debtor had the option to take terms proposed by the judgment creditor or leave them. I do not think it is necessary to take a critical look at this interesting proposition of law but suffice to say that where a Court has no jurisdiction, the parties to a suit before it cannot confer jurisdiction on it either generally or in respect of any issue that arises in the course of trial over which it has not jurisdiction. So IN RE HOOKER'S SETTLEMENT, HERON  VRS. PUBLIC TRUSTEE (1955) CH. 55 at 58, Danckwert J. said:

“It seems to me that the view which was expressed by Simonds J. in 1939 is the right view. An ordinary person has not the power, as the legislature has of course, to impose upon a judge ………….a jurisdiction which is not given to him by the procedure of the Courts or by any statute. It seems to me that this is an attempt to make the judge an arbitrator without his consent”.

The question whether the High court, in this country has jurisdiction to grant instalment payment of a judgment debt or not has in recent times needlessly vexed High Court judges in this country.  I say “needlessly” because until the BOIATEY and AMO-MENSAH cases where Taylor took a position contrary to the traditional view, the High Court’s jurisdiction to order payment of a judgment debt by instalments had long been assumed and such applications were a common phenomenon in our Courts.  In the case of LABONE WEAVERS ENTERPRISES LTD. VRS.  BANK OF GHANA (supra) Edusei J. took the opposite position and expressed views against Taylor J’s position.  He held the view that since the judgment creditor can go into execution at the High court to realise the fruits of his labour, it stands to reason that the judgment debtor also be able to ask for stay of execution and payment by instalment.

Then in 1979, Mensah Boison J, in the case of O.K. BAZZAR VS. DE GRAFT HANSON & ANOR. (1980) GLR. 87 refused to follow the decision of Taylor J. in AMO-MENSAH VRS. OWUSU (supra).  This was a case in which the defendant judgment debtor applied for a stay of execution and an order to pay the judgment by monthly instalments.  The application was resisted by the judgment creditor on the ground that High Court had no jurisdiction under the High Court (Civil procedure) Rules, 1954 (L.N. 140A), Order 42, r, 16 (1) (b) to grant the relief of payment of judgment debt by instalments.  Mensa Boison J. refused to follow Taylor’s ruling in the AMO-MENSAH case and held that everything was within the jurisdiction of the High court unless it was specifically taken away.

And in the case of GHANA COMMERCIAL  BANK VRS. CAMB MOTORS (1972/83) G.L.R.D. para. 49, Amua-Sakyi J (as he then was) refused to follow the decisions in the BOIATEY and AMO-MENSAH cases and held that on its proper construction, the High court has power under Order 42, r. 16 (1)(b) of the High Court (Civil Procedure) Rules, 1954, (L.N. 140A), to order the payment of a judgment debt by instalments because an order for the payment of a judgment debt by instalment is an order staying execution conditionally.

I also added to the confusion in the case of FIANKUMA VRS COBBINA (supra) by taking a position against Taylor J’s views in an obiter.  I therefore, held, as pointed out earlier, that by legislative provisions or by virtue of its inherent jurisdiction, the High Court has the jurisdiction to order payment by instalments.  Although this case was reported, the reports do not contain the reasons for my taking the position I did on this issue.  It only contained the Editor’s note that I held the view that the High Court has jurisdiction to stay execution and order payment of a judgment debt by instalments.

The views I am about to express in this opinion can therefore safely be described as the second edition or an improved version of FIANKUMA V. COBBINA.        

INHERENT JURISDICTION    

Having expressed the view that the High Court has the power to order payment of a judgment debt by instalments, either by recourse to its inherent jurisdiction or by virtue of legislative provisions, it is only proper that I give reasons for this position.  I would like to treat the later view based on inherent jurisdiction first.  The starting point, of course, should be the rule for jurisdiction as laid down by the authorities.  In the celebrated case of PEACOCK VRS. BELL (1667) 1 WMS SAUND. 73; 85 ER. 81 the principle was stated as follows:

“…the rule for jurisdiction is, that nothing  shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is so expressly alleged”.

It is this principle which informed Mensa Boison J. in the case of O.K. BAZZAR VRS. DE GRAFT HANSON & ANOR. (SUPRA) where he took a position contrary to that of Taylor J’s and held that the High Court has jurisdiction to order payment by instalment because everthing was within its jurisdiction unless specifically taken away by statute.  This is what he said when he was disposing of the argument that the district court is specifically empowered under Order 42, rr. 7 and 8 of Cap 4 (1951 Rev.) sched. II:

‘It is, I think, as it ought to be, in the provisions governing district court practice the rules spell out the power to grant payment by instalments or stay of execution.  For with the inferior Court nothing is within its jurisdiction unless it is specifically so provided, whereas everything is within the jurisdiction of the High Court unless it is specifically taken away”.

There are several cases in which our Courts have found it very convenient and safe to apply this rule in our circumstance.  See cases like TIMITIMI vrs. AMEBEBE 14 WACA 374, JOSEPH VRS. FARISCO (GA) LTD. (1991) 2 GLR 464 and that of FOSUHENE VRS. POMAA

(1987-88) 2 G.L.R. 105, only to mention a few.

 In OFOSUHENE VRS. POMAA (supra) for example, Taylor JSC said at page 135:

“A Court ought not to decline jurisdiction in specific case if in doing so it will defeat the purpose for which it was set up, provided in the circumstances of the specific case its assumption of jurisdiction does not amount to usurpation of powers or violation of its jurisdiction but can rather be logically deduced as a necessary implication and an adjunct of the jurisdiction under which it operates.  In this connection, it is worthy of note that with superior courts jurisdiction is presumed unlike inferior courts whose jurisdictions are invariably delimited by statute”. [Emphasis supplied]

The above dictum is a perfect statement of the case for the exercise of an inherent jurisdiction in a matter such as this, and an impeccable legal answer to the submission of Mr. Amegatcher against the High Court's jurisdiction to order payment of a debt by instalments. However, in crediting a Court with an inherent jurisdiction in any given situation, one must not look at the "justice" of the case only but also determine whether its exercise can be traced to long standing precedents.  This criteria was laid down by the English Court of Appeal in the case of IN RE DIPLOCK, DIPLOCK VRS. WINTLE (1948) CH. 465 at page 481- 482 where the Court laid down the guideline for the assumption of an inherent jurisdiction by cautioning that such assumption "must be shown to have ancestry founded in history and in the practice and precedents of the Courts...It is not sufficient that because we may think that the 'justice' of the present case requires it, we should invent such a jurisdiction for the first time”.

The High Court's power to order payment by instalment has never been doubted and had long been acknowledged until it was doubted in 1971 by Taylor J. (as he then was) in the case of STANDARD BANK OF WEST AFRICA LTD. V. BOIATEY (SUPRA) where the learned judge himself admitted thus:

“Of course our Courts have for many years exercised this undefined jurisdiction and so perhaps by such long exercise the jurisdiction has become inherent”.

This, it is submitted, should have allayed the fears and erased any doubts the learned judge might have had; but he fell into error when he ignored the well established principle in PEACOCK VRS. BELL (supra) and held that although the High Court had power to stay execution as long as necessary, he was loath to admitting the Court’s jurisdiction to order payment by instalments in the interim.  This, it is submitted, is contrary to views on jurisdiction he later expressed in OFOSUHENE VRS. POMAA (supra) quoted above.

To demonstrate that our Courts have long exercise the power to order payment by instalments, I will only refer to the case of KWABENA ODURO & 2 ORS. VRS. DAVIS (1952) 14 W.A.C.A. 46.  I will be discussing this particular case later in my ruling.  I have only mentioned it to demonstrate that our Courts have long exercised the said jurisdiction.

In considering the High Court's inherent jurisdiction to order payment of a judgment debt by instalment, we cannot ignore the court's primary function to do justice between the parties before it; especially if there is no rule of law, substantive or procedural, expressly prohibiting such a course.  This is because such an application calls for the balancing against each other of two principles which are often in conflict in such situations: namely, the principle that a successful party cannot be deprived or the fruits of his labour, and the conventional judicial wisdom that it should be inexpedient to enforce the judgment against the losing party who may need some respite because of special circumstances, or certain factors which inhibit his immediate ability to liquidate the whole amount but rather by instalment payments at reasonable and regular intervals.

In the case of FIANKUMA V. COBBINA & ANOR where I considered the point in an obiter, I had occasion to say:

“I think a High Court must… have an inherent jurisdiction over all judgments or orders which it has made under which it can conditionally stay execution, in an appropriate case, and order payment of a judgment debt by instalments.”

So that if such an application is not directly covered by the Rules of Court, and it is not prohibited by any law, but can be said to be a recourse to the Court’s inherent jurisdiction, and so long as there is a discretion in the matter, the Court must open the doors of its shrime to permit a supplicant to pray for assistance from its inherent powers.  For, in the case of Superior Courts there is no presumption against jurisdiction unless expressly ousted by law.  The practice of applying to the High Court for stay of execution and payment of a judgment debt by instalments has so firmly gained ground in our jurisprudence that it cannot now be blown off by a side wind

STATUTORY PROVISIONS

The next point is whether it can justifiably be contended that under the High Court (Civil procedure) Rules, 1954 (L.N. 140A) the High Court has no jurisdiction to grant an order for the payment of a judgment debt by instalments?  Also, whether really before the Evershed Report the High Court in England, unlike the county courts, had no jurisdiction to grant payment by instalments.

(i)  HIGH COURT (CIVIL PROCEDURE  RULES, 1954 (L.N. 140A)

(a) Order 42, r I6 (1) (b)

The BOIATEY case was the case which ruffled the jurisdictional calm, in respect or ordering instalment payments, which was prevailing at the prevailing at the High court.  The learned judge himself in that case betrayed some uneasiness when he said.

“I am aware that under Order 42, r. 16(1) (b) of our own rules the Court or Judge has power to stay execution, until such time as they or that he shall think fit, further more Order 42 r 40 mentions ‘where a judgment orders payment of money by instalments’ without any reference to stay of execution”.

Taylor J, did not hide the diffidence he had about his views when he asked an almost rhetorical question: “Will the combined effect of these rules mean that the court can order payment of instalments?” The learned judge did not have long to wait to finally clear whatever doubts he may have had; for in the AMO-MENSA case he came out forcefully with the view that the High Court has no jurisdiction to order payment by instalments and that its powers under Order 42, r 16 (1) (b) are limited to the grant of stay of execution only.

It is Order 42 of the High Court (Civil Procedure) Rules.  1954 (L.N.140A) which regulates the process of execution of judgments in our jurisdiction.  Rule 16 (1) (b) of this Order provides”:

“(1)  Every person to whom any sum of money or any cost shall be payable under a judgment or order shall be entitled to sue out one or more writ or writs of FIERI FACIAS to enforce payment thereof, subject nevertheless as follows:

(b) The Court or a judge may, at or after the time of giving judgment or making an order, stay execution until such time as they or he shall think fit”.

In my view the practice under Order 42 r. 16(1)(b) should not be different from that under Order 47 r. 1 of the English Rules. I say so because under Order 42 r. 16 (1) (b) of our High Court (Civil procedure) Rules, 1954 (L.N. 140A), like Order 47. R. 1 of the English Rules, the application to stay execution by Fi:Fa can be made at the time of the judgment, or at anytime thereafter.  If the application is made at the time of the judgment, then no separate motion is necessary, but the Court may require an affidavit by or on behalf of the applicant stating the grounds of the application and as far as possible the evidence necessary to substantiate them.  And where the inability of the applicant to pay is alleged, then he must disclosed his income, other assets and liabilities.  If his offer is accepted either by the judgment creditor or the Court, then a stay is granted.

Where, however, the application is made, not at the time of the judgment but after the judgment, then it is important that it be made by way of a motion with an accompanying affidavit separately filed and served on the judgment creditor.  The affidavit must be an affidavit of merit containing matters earlier alluded to.  Should the Court find it necessary it could order the applicant to attend and be crossed-examined on his affidavit.

Order 42, r. 16(1) (b) recognizes the conflict between the right of the victorious party to the immediate enjoyment of the fruits of his labour and the inexpediency in certain circumstances, in asking the losing party to immediately satisfy the judgment.  The rule, therefore, is intended to grant a discretionary power to the Court or judge, in the appropriate cases, to balance or reconcile these conflicting claims.  There should be nothing wrong if a judge after examining all the facts orders a stay of execution for a period and adds a condition that certain instalment payments be made within the said period of stay so as to get the debt liquidated at the end of the period of  stay.  To me, this is a better exercise of discretion than just granting a bald order for stay of execution, without more, for the same period.

But in rejecting an argument for stay of execution and an order for payment by instalments based on Order 42, r. 16(1)(6), Taylor J. said:

“It was submitted by Counsel for applicant that under this Order the Court has power to order payment by instalments.  I find this submission difficult to accept.  When under Order 41, r.8 of Schedule II to Cap. 4 the legislature wanted to give the district Court jurisdiction to order payment by instalments it did it by the use of words that clearly achieved that result beyond peradventure.  Yet although clearly by order 42, r 16(1) (b) the Court was given jurisdiction to merely postpone the time for payments, I must infer from that the Court had by this order a further jurisdiction to alter not merely the time but the mode of payment and thus alter the judgment.  I find it difficult to engraft this further condition unto the rule.”

From the above dictum of Taylor J, it can be seen that he admits that Order 42, r. 16 (1) (b) empowers a High Court to stay execution as long as it deems appropriate.  This he considers as altering the time of payment.  He however denied the High Court, under this rule, the further or ancillary power to order instalment  payment; a step he considers as altering the mode of payment and thereby altering the judgment.  With much respect to the learned judge, all that such a further step would amount to is ordering a stay of execution conditionally and in the event of a default the judgment creditor is entitled, with leave of the Court, under Order 42 r.40 to issue out a writ of Fi:fa for the unpaid amount.  I hold the view that under Order 42 r. 16 (1)(b) a judgment debtor can, after judgment, come to Court to plead for stay of execution and the judge has a discretion to stay execution as long as he thinks fit.  Whether a judge will order a stay of execution in a particular case must depend upon the special circumstances of that case.  The discretion is a judicial one which must be judiciously exercised.  Special circumstances must always be shown that it is inexpedient to enforce the judgment in order to induce the court to grant a stay of execution.  Cannot the proven inability of the debtor to immediately liquidate the whole debt but rather at reasonable and certain intervals, within a reasonable period, be considered as a special circumstance warranting a stay of execution on terms? Or should it not be possible for a judgment-debtor while asking for stay of execution, (as long as the judge ‘shall think fit’), to himself offer reasonable and acceptable terms for payment within that period to enable him liquidate the debt during the proposed period of stay? Or is it being suggested that a judgment-debtor can stay execution for a period acceptable to the Court without the court having the corresponding power to impose any conditions?  Will this not unnecessarily inhibit the discretion the judge undoubtedly has in the matter?  If a Court has power to stay execution “until such time” as it “shall think fit”, does it not stand to reason that it should have the ancillary power to impose conditions which must be obeyed in the interim? The questions can be multiplied and these cannot be mere hiccups but real legal obstacles to any other interpretation in view of the doctrine in cases like PEACOCK V. BELL. Order 42, r. 16(1) (b) in my view gives a judgment debtor the right to apply to the court for stay of execution.  Such an application should be more attractive if reasonable terms of payment are proposed by him.

As was pointed out by Mensah Boison J. in O.K. BAZZAR v. de GRAFT HANSON (already cited)

“A stay of execution under Order 42, r. 16(1)(b) of L.N. 140A is an exercise of the Court's discretion. In my view it is not inconsistent with the exercise of that discretion to attach conditions to the stay. Nor does it make the exercise of the discretion any less so, because the suppliant specially asks for a condition viz: payment of the judgment debt by stated instalments, during the stay. The effect will be that the stay if granted by the court is not an absolute stay, but upon condition that the applicant pay the judgment debt by related instalments during the stay"

This reasoning appeals to me more than Taylor's views that such an approach will amount not only to postponing the time of payment but also the mode of payment thereby altering the judgment.

(b)  ORDER 42 r 40 (L.N. 140A) OF 1954

In this opinion we cannot ignore the provisions of Order 42, r 40 either.  It states:

“When a judgment orders payment of money by instalment, execution shall not issue until after default in payment of some instalment according to the order, and execution or successive executions may then issue for the whole money then remaining unpaid, or for such portion thereof as the court orders, either when making the original order or at any subsequent time.”

It must be noted that there is no such comparable rule in the 1954 English rules of the Supreme Court. 

Where an order for the payment of a judgment debt by instalment has been made and the judgment creditor desires to go into execution, Order 42 r, 40 requires the satisfaction of two conditions before he proceeds to issue execution.  The first of these conditions is that an instalment might have fallen in arrears.  The second is that there must be an order of the Court specifying the amount of instalment or instalments then owing  in respect of which execution shall issue.  The implication is that there is a stay of execution unless the leave of the court is first sought to go into execution.

In the case of FIANKUMA VRS. COBBINA & ANOR. (already cited) I said:

“…where a Court grants payment of a judgment debt by instalments and the judgment debtor defaults, he judgment creditor cannot proceed and levy execution without first seeking leave of the Court.  The implication being an order for instalment payment is invariably an order for stay of execution conditionally”.

The case of OKAI VRS EDWARD NASSER & ANOR. (1965) C.C. paragraph 5 was one in which an order for payment by instalment was made with “usual default clause” engrossed on it. The question arose whether the judgment creditor could go into execution without leave of the Court.  It was held that upon default the judgment-creditor must first seek leave of the Court before going into execution.  The learned judge said:

“An order made in those terms amounts to stay of execution upon the whole amount.  I have endeavored to find out how the phrase ‘usual default clause’ arose and what is its precise meaning but have been unable to do so, though I am aware that the practice to tack this phrase behind an order for payment by instalment is common in our courts…The clause can only mean that upon default] the whole amount becomes due, but the stay of execution which is implied in the original order must be discharged first.”

The next case I would like to consider is the case of U.T.C. vrs. SANGMUAH (Court of Appeal) Cyclostyled judgments January-June, 1958 where the plaintiff was ordered to pay the judgment debt by instalments.  She admitted not complying with the said order in its entirety. The defendants contended that the order was made “with liberty to come back”.   Ollennu J. delivering the judgment of the Court of Appeals said:

“An order made in those terms amounts to stay of execution upon the whole amount of judgment debt and costs and operates to restrain the judgment creditor from going into execution upon the default of payment without applying to the Court for leave to do so.”

The final case I would like to consider is the case of ODURO VRS. DAVIS (already cited).  This case was based on the old Order 43 r.6 of THE COURTS ORDINANCE, 1935 (No.7).  The rule can be said to be a carbon-copy of our present Order 42 r 40 of L.N. 140A of 1954.  The marginal note to these rules read “where payment ordered by instalments”. Although I am not using the marginal notes to aid me in any interpretation, their significance, however, cannot be lost on me.  Order 42 r.40 provides the mechanism or procedure for a judgment creditor to go into execution instalments “where payment [is] ordered by instalments “and there has been a default.

In the ODURO CASE, the appellant was the judgment creditor in a previous case, while the respondent was the judgment debtor.  After the judgment debtor was brought on summons to show cause and examined as to his means, he was ordered to pay the judgment debt by instalments. He paid the first instalment but defaulted in respect of the second and third instalments. The creditor then took out a writ of Fi:Fa for the entire balance of the debt and the debtor's charging plant was seized and sold. He then sued his judgment creditor, the auctioneer and the purchaser to set aside the sale as wrongful in addition to a claim for special and general damages.  His claim was allowed.  The others appealed, arguing that where instalment payment of a judgment is ordered and there is a default, execution can immediately issue for the entire amount without leave of the court.  The West African Court of Appeal—CORAM Foster-Sutton, P. Coussey J.A. and Acolatse J. dismissed the appeal, holding that the execution was wrongful because leave was not first sought from the Court.

The court speaking per Forster-Suttons P. said:

“In my opinion the Order for the payment of the judgment debt by instalments took the place of the original decree, and its effect was that there was no longer a present debt ...due by the plaintiff to the first defendant ...Where an order for the payment of judgment debt has been made under Order 43 r. 6 it seems to me that two conditions must be satisfied before execution can issue. Firstly, there must be an instalment in arrears; and, secondly, there must be an order of the Court specifying the amount of the instalment or instalments then owing in respect of which execution shall issue. In other words, there is a stay of execution unless the leave of the Court to issue execution has been obtained”.

The cases reviewed so far are all authorities for the proposition that where a court orders payment of a judgment debt by instalment a stay of execution is implied and the judgment creditor cannot issue execution unless with leave of the Court as there is need to have the implied order for stay of execution discharged first before one can levy execution.  So that even in interpreting our Order 42 r. 40 in isolation, one could say that the High Court has the power to stay execution and order payment of the judgment debt by instalment.  Order 42, r. 40 will become otiose if there is no corresponding power in the High court to order payment by instalments.  The provision in Order 42, r. 40 to the effect that a judgment creditor cannot go into execution in the event of a default, in the payment of the instalments ordered unless leave is first sought from the Court, clearly presupposes or assumes the existence of the power in the Court to make such order for instalment payment.  The argument, against a contrary submission, becomes even more formidable if Order 42,r 16(1)(b), which admittedly gives the power to grant stay of execution, is read together with Order 42, r. 40. Therefore, even if the view that Order 42, r 16(1)(b) and order 42, r 40, separately considered, do permit a High Court to order instalment payment of a judgment debt does not satisfy the protagonists of the “no jurisdiction" concept, the combined effect of these rules necessarily produce that result.

(ii)   THE ENGLISH POSITION

In the AMO-MENSAH case, my respected brother Taylor J. held the view that before the Evershed Report of 1956, the High Court in England had no jurisdiction to order payment of a judgment debt by instalments. This appears to be his reason for holding that in this country also the High Court, unlike the district Courts, has no jurisdiction to order instalment payment. This is what he said:

“Clearly under the rule as we now have it and as it existed in England before the Evershed Report amendment of 1956, the High Court in England had no power to order payment by instalments.   In England therefore only the county court could order instalment payment just as the district court here can also under Order 41 r 8 of Schedule II to Cap 4 order payment by instalments”. 

The reason for this view is that our rules were analogous to the English rules before the Evershed Report.  Admittedly, our Order 42, r. 16 is culled from the English rules in operation before the Evershed Report.  This English rule was Order 42, r, 17.  As a result of the Evershed report the relevant rule now is Order 47, r, 1 (1) which states:

“1(1) where a  judgment is given or an order 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 circumstance which render it inexpedient to enforce the judgment or order, or,

(b)  that the applicant is unable from any cause to pay the money, then, notwithstanding anything in rule 2 or 3, the Court may by order stay the 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 thinks fit”.

A note on this new rule which appears in the Supreme Court Practice, 1970, Vol. 1 page 659 reads:

“This Rule is taken from the former 0.42, r 19, introduced by R.S.C. (No.8) 1956 as amended by R.S.C. (Rev.) 1962, following the recommendation of the Evershed Report ... It confers express power on the Court to stay execution by writ of Fi:Fa either absolutely or for such period and subject to such conditions as the Court thinks fit. The grounds upon which the Court can exercise this power are either that there are special circumstances which render it in expedient to enforce the judgment or order for the payment of the money or that the applicant is unable from any cause to pay the money. Unlike the County Court, the High court has no power to order the payment of a judgment debt by instalment, for the judgment creditor is entitled as of right without the leave of the Court and without notice to the judgment debtor to issue execution by writ of Fi:Fa. immediately upon his judgment being entered. By this Rule, however, in the specified circumstances, the court has power to stay such execution, and if necessary to continue such stay provided that the judgment debtor pays the judgment debt by specified instalments”.

It is the passage that “unlike the County Courts, the High Court has no power to order the payment of a judgment debt by instalments” which informed Taylor J's. views on the issue. Perhaps it is very important to point out here that in the English Rules - that is R.S.C. 1956 as amended by R.S.C. (Rev.) in 1962—there are no rules comparable to our Order 42, r 40. (L.N. 140A) of 1954 or to the former Order 43 r.6 of the Courts Ordinance, 1935 (No.7) which was applied in ODURO  VRS. DAVIS (supra).

This rule has been quoted earlier but for ease of reference I will quote it again.

“40. Where a judgment orders payment of money by instalments, execution shall not issue until after default in payment of some instalment according to the order, and execution or successive executions may then issue for the whole money then remaining unpaid, or for such portion thereof as the court orders, either when making the original order or at any subsequent time”.

For the word “judgment” in line one substitute the word “decree” and one has the exact wording of Order 43 r. 6 of the Courts Ordinance, 1935 (No.7) applied in the case of ODURO v. DAVIS 14 W.A.C.A 46.

I have earlier referred to some decided cases which held that where an order for instalment payment is made by the Court, and there is a default in its payment, the judgment creditor cannot go into execution unless by leave of the Court.  I have also pointed out that Order 43 r.6 of the 1935 Courts Ordinance (No.7) which was under consideration in the ODURO case is exactly worded like the present Order 42 r. 40 of our High Court Rules.  These two rules—i.e. Order 43 r.6 and Order 42, r. 40—closely follow the wording of Section 61 of the United Kingdom Execution Act, 1844 (7 & 8 Vict. C. 96). Section 61 of the Execution Act, 1844 stipulates that where payment by instalments is ordered execution can issue, in the event of a default, only by leave of the Court. Section 61 of 1844 Execution Act states:

“... if the Judge of any such Court shall have made any Order for Payment of any sum of Money by Instalments, Execution upon such Order shall not issue against the Party until after default in Payment of some Instalments according to such Order, and Execution or successive Executions may then issue for the whole of the said Sum of Money and Costs then remaining unpaid, or for each successive Instalments and Costs remaining from Time to Time unpaid, as the Judge shall order, either at the Time of making the original Order, or at any subsequent Time, under the Seal of the Court”.

In HALSBURY LAWS OF ENGLAND (3rd  Ed.) Vol. 16 at page 7-8, the learned authors discussed the circumstances when leave must be obtained before levying execution. They gave as one of the circumstances “when a judge of the High Court has ordered payment by instalment”. This assertion in HALSBURY'S LAWS OF ENGLAND is based on Section 61 of the Execution Act of 1844 which was in force in England before the Evershed Report.

If there were no authority or jurisdiction in the High Court to order payment by instalment, there would have been no need to provide a procedure to be followed in the event of default in the instalment payment. It is submitted that section 61 of the Execution Act of 1844, like our present Order 42, r.40 of L.N. 140A of 1954, presupposes or assumes the jurisdiction of the High Court to order payment by instalment.  This may be the reasoning which informed the West African Court of Appeal in the case of ODURO V. OWUSU (supra) when it said per Forster—Sutton P. thus:

“Where an order for the payment of judgment debt has been made under Order 43 r.6 it seems to me that two conditions must be satisfied before execution can issue”. 

Order 43 r.6 of the Courts Ordinance, 1935 (No. 7), as we have seen, is IN PARI MATERIA the present Order 42 r.40 of L.N. 140A of 1954.

In the case of ODURO V. OWUSU (SUPRA) Forster-Sutton commenting on Order 43 r 6 of the Courts Ordinance, 1935, (No. 7) said: “The rule very closely follows the wording of section 61 of the United Kingdom Execution Act, 1844”. This comment, it is submitted, must go for the present Order 42 r 40 of L.N.140A of 1954 also.  In WOODHAM SMITH VRS. EDWARDS (1908) 2K.B. 899 at 906, Buckley, L.J. said that the powers under section 61 of the United Kingdom Execution Act, 1844 (7 & 8 VICT. C.96) “can be exercised by any judge of the High court, including the judge at Chambers”. It is submitted therefore that the power to order payment by instalment had been in existence since 1844—long before the Evershed Report 1956. In my humble view therefore, the note in the Supreme Court Practice (the Annual Practice) to the effect that the High Court, unlike the County court, had no jurisdiction to order instalment payment before the Evershed Report, which said statement was relied upon by my brother Taylor J., is of very doubtful validity and needs a further examination. My views on this issue may appear iconoclastic, and possibly presumptuous as well; but it is not unwarranted.  At least, in one instance, THE SUPREME COURT PRACTICE, 1970, has been caught napping. 

In SHELL-MEX & B.P. Ltd. VRS MANCHESTER GARAGES (1971) 1 W.L.R. 61, Lord Denning had occasion to doubt the validity of a statement in THE SUPREME COURT PRACTICE, 1970.  This is what he said.  This is what he said.

“I notice that there is a note in THE SUPREME COURT PRACTICE 1970 under Order 14 which says at p-,120:..’…claim for an injunction is by its nature not appropriate for Ord.14 proceedings, since the master has no power to grant an injunction'. It is true that a master has no power to grant an injunction. But the judge has ample power. I see no reason whatsoever why a plaintiff cannot go straight to the judge and ask for summary judgment under Order 14 for an injunction.  If and in so far as that note suggests the contrary it is wrong’’- (Emphasis mine)

Sachs L.J, in his judgment said:

“I will add my support to Lord Denning M.R.'s. view as to amending the passage in SUPREME COURT PRACTICE to which he has referred”.

I have quoted these dicta, not as precedents, but as an illustration that there can be an error in this very useful book. In my humble view, the High Court had had jurisdiction to grant an order for instalment payment before the Evershed Report, both in England and in this country.  I think one must at least admit that the combined effect of Order 42, r 16 (1)(b) and Order 42, r 40 is that a High Court can properly order the payment of a judgment debt by instalments; and when there is a default on the part of the debtor, the creditor can proceed to levy execution only with leave of the Court. 

Order 42 r.40 can be justified, if not on its own, then only in terms of the existence and scope of Order 42, r 16(1)(b) as a legislative arrangement, or within the context of the Court's inherent jurisdiction.

After all is said and done, assuming that the High court in this country had no power to order instalment payment of judgment debts, should it not be possible to take advantage of Order 74 of our rules and import the admitted jurisdiction which “now” exists in the English Courts.  This is because whenever a judgment decrees the payment of money by one person to another, there will always exist, as between the judgment creditor and the judgment debtor, a conflict of two important principles—the right of the victorious party to the immediate enjoyment of the fruits of his labour, and the inexpedience of immediately enforcing the judgment against the losing party.  This ancillary or residuary conflict should not be beyond judicial determination or resolution.

Having decided that the High Court has jurisdiction to order the payment of a judgment debt by instalments, I will next consider the issue whether it can do so in respect of a judgment of the Supreme Court. Mr. Amegatcher, counsel for the applicant, contended that the High Court could not. Mr. Koi Larbi, counsel for the respondent, admitted that the High Court could “only enforce the judgment of the Supreme Court  ... it cannot add or subtract from any judgment which the Supreme Court makes”.  But he contended that where the Supreme Court only affirmed the judgment of the High Court and made no order on its own the High Court could interfere. He then proceeded to quote from page 7 of the Supreme Court judgment which states as follows:

“... The trial High Court gave judgment of the above in favour of the defendant/respondent. After examining the evidence on record and the law involved  we  agree  with  counsel  for the defendant/respondent that the Court of appeal had no legal justification for disturbing the verdict of the High Court ... The cross appeal is allowed and the award of the High Court restored”.

Mr. Koi Larbi then concluded his argument thus:

“From the forgoing one can see that the Supreme Court merely confirmed the judgment of the High court. If the Supreme Court had made any other order then I would concede that the High Court would not have the power to interfere with awards made by the Supreme Court. It would merely have to enforce the order of the Supreme Court”.

By this, Mr. Koi Larbi may be implying that the dictum he quoted from the judgment of the Supreme Court is the order of the said Court.  Anybody conversant with the practice in this Court knows that we hardly make orders in the various opinions read by the individual judges. Orders are drawn up in the record book and read over to the parties.  There was no departure from this practice in the present case. The minutes in the record book read:

“By Court:—The plaintiff/ appellants appeal fails and is dismissed. The defendant/respondent is entitled to recover possession of dwelling house No. C111/4 Tettekwei Street Dzorwulu, Accra. The cross-appeal of the defendant/respondent succeeds and is allowed, and the award of the High court, Accra restored.  The defendant/respondent is entitled to recover from the plaintiff/Appellant half of the 65% rent collected in Cedis by the plaintiff/Appellant from the Embassy of the German Democratic Republic in respect of House No. 23 Aviation Road, Accra, i.e. $5,040.00.

Costs ¢500,000.00 in favour of the defendant/respondent.”

In effect, the Supreme Court granted an order of recovery of possession of the house, i.e. H/No. C111/4, Tettekwei Street Dzorwulu, and also ordered the payment of certain monies to the applicant.

After the Court delivered its judgment on the 12th day of March, 1997, solicitors for the applicant filed a Writ of Possession on 27th March, 1997 in the High Court.  The respondent countered this by initiating a series of legal moves in this Court so as to frustrate them. The last, a motion for stay of execution, was on 8th July, 1997 struck out as withdrawn. The parent or original docket was then formally forwarded to the Court below—that is the High Court — on 30th  July, 1997 by the Registrar.  On the 1st day of September 1997 the respondent filed in the High Court a motion for stay of execution and payment by instalments. 

So that before the Writ of Possession was applied for and the motion for stay of execution filed on 1st September, 1997, there had been no certificate from this court, in accordance with our Rules, directing the High Court or any Court to enforce the judgment of the Supreme Court. Rule 28 of the Supreme Court Rules, 1996, (C.I. 16) states:

“Where the Court directs any judgment or order to be enforced by any other Court, certificate in the Form 12 set out in Part 1 of the Schedule to these Rules under the seal of the Court and the hand of the presiding Justice setting out the judgment or order shall be transmitted by the Registrar to the Court, and the later shall enforce the judgment or order in the terms of the certificate.”

Before the High court or any other Court can be properly seised with the authority or jurisdiction to enforce any judgment or order of the supreme Court, there shall have been transmitted to that Court a certificate under the seal of the Supreme Court and signed by the presiding Justice setting out the judgment or order to be enforced. It is only then that the Supreme Court could be said to have ”directed” that Court.  There can be no direction from the Supreme Court, in my humble view, without the transmission of a certificate as required by our Rules.  And the Court so directed is obliged to only enforce the said judgment or order specified in the certificate.  In this case, since no certificate was ever transmitted from this Court to the High Court, all the executory process initiated by either party was premature because the Supreme Court could not be said to have exercised its discretion under rule 28 of C.I. 16 to confer jurisdiction on the High Court in the  matter.

It is trite learning that where a condition precedent to assumption of jurisdiction has been ignored, such assumption is null and void. (FIND CASE).

The issue whether a Court directed by the Court of Appeal to enforce its judgment can grant an order of Stay of execution of the judgment debt or not, arose in the case of LABONE WEAVERS ENTERPRISES LTD. V. BANK OF GHANA (supra). The certificate which was transmitted from the Court of Appeal to the High Court, in accordance with the Court of Appeal Rules, simply read:

“The appeal is dismissed for want of prosecution.  ¢150.00 costs for the respondent”.

The judgment debtors brought an application for stay of execution and payment of judgment debt by instalment. The judgment creditors raised a preliminary objection to the application saying the Court of Appeal was the proper forum for such an application and not the High Court. Edusei J correctly held that since the certificate had been transmitted to the High Court by the Court of Appeal, it had in effect directed the High Court to enforce the judgment. But he then proceeded to reason thus:

“Since the appeal was dismissed it means also that the judgment of the High Court from where the appeal emanated still stands and it is a full force and effect and the High Court can enforce the judgment including the costs awarded by the Court of appeal. This means that if the plaintiffs, judgment creditors, wish to go into execution the proper Court in which to file their papers of execution is the High Court and not the Court of Appeal ...

If the plaintiff-judgment creditors, can go into execution to realise the fruits of their judgment in the High Court it stands to reason also that the judgment debtors can come to the High Court for a corresponding remedy of stay of execution and payment by instalments”.

It may be right to say that the judgment subsisting between the parties is that of the High Court since the appeal was dismissed not on the merits, but for want of prosecution only. I am, however, uncomfortable with the reasoning that since the judgment creditors could come to the High Court to enforce their judgment, ipso facto, the judgment debtors could also approach the High Court for the corresponding remedy of stay of execution. The High Court is obliged to enforce the judgment ‘in terms of the certificate”.  This should therefore put a necessary limitation on, or curtail the rights of the judgment debtors. Since the certificate did not impose any terms, namely payment by instalment, the High Court cannot go beyond the confines of the certificate and impose any terms or conditions on  its own because it has no discretion in the matter. The reasoning of Edusei J. is clearly subversive of the time honoured principle that IN REI PUBLICAE FINIS LITUM which appears to be the main reason behind the provision in the law that the Court directed “shall enforce the judgment or order in terms of the certificate”. What prevents a judgment creditor displeased with a decision of the High Court in such a situation advocated by Edusei J. to appeal back to the Court of Appeal on that issue and possibly to the Supreme Court.  In my view it is to give sustenance to the principle there must be an end to litigation that the Rules specifically state that a court directed to enforce the judgment of the Supreme Court must do so “in terms of the certificate”.

Farkye J. held in this case that he was not enforcing the judgment of the Supreme Court but that of the High Court because the Supreme Court judgment affirms the High Court decision.

I can only describe this as judicial importance. This Court heard the appeal on the merits and delivered its own written judgment; the fact that it affirms the High Court decision should not create any controversy as to the judgment subsisting between the parties or the status our judgment.  The only fact which could have given the learned judge the illusion that he was enforcing the High Court judgment is the absence of any certificate from this court directing the High Court to enforce the said judgment.  The judge therefore erroneously assumed that he was dealing with his own judgment.  He was not so justified.

In this case no certificate had been transmitted to the High Court in accordance with our rules to clothe it with jurisdiction to enforce the judgment.  It was therefore premature for it to have initiated any of the executory processes opened to it.  In plain words it acted without jurisdiction.  I will therefore set aside  the order for payment by instalments.

ACQUAH, J.S.C.:

I also agree.

ADJABENG, J.S.C.:

By this application, the applicant seeks to invoke the supervisory jurisdiction of the Court for an order of certiorari to quash an order of the High Court, Accra, staying execution of a judgment and granting payment of the judgment debt by instalments.  The applicant thinks that the High Court lacked jurisdiction to make those orders.  Hence this application in which he prays the Court “to remove and bring into this Court for the purpose of being quashed the proceedings and order(s) of the said Accra High Court dated 28th April, 1998 ...”

The main ground on which this application is based is that the High Court did not have jurisdiction, as claimed, under order 42 rule 16(1)(b) of the High Court Civil Procedure Rules, 1954 (L.N. 140A), under which that Court purported  act.  It is also contended that the High Court judge was wrong in saying that he was not dealing with the Supreme Court judgment but with the original High Court judgment when that original judgment had gone on appeal and ended at the Supreme Court where it was affirmed. 

There is no doubt that the judgment which the High Court judge dealt with by staying execution thereof is the High Court judgment as affirmed by the Supreme Court. But as rightly indicated in the applicant's statement of case, even if the judgment has become the judgment of the appellate Supreme Court, its execution must be done by or in the High Court. And order 42 of the High Court Civil Procedure Rules, 1954 (LN 140A), is the Order which governs execution in the High Court.

Order 42 rule 16(1)(b) provides as follows:—

“Every person to whom any sum payable under a judgment or any costs shall be payable under a judgment or order shall be entitled to sue out one or more writs of fieri facias to enforce payment thereof, subject nevertheless as follows:—

(a)  …

(b)  The Court or a Judge may, at or after the time of giving judgment or making an order, stay execution until such time as they or he shall think fit”.

As indicated earlier, the High Court judge claimed that he had jurisdiction under Order 42 rule 16(1)(b) to make the orders the Court had made.  In his ruling, the Court, after quoting the said rule said:—

“in my sound mind by this Order quoted above, the High Court has power to order stay of

execution and payment of a judgment debt by instalments”.

On the face of rule 16(1)(b) of order 42 of the High Court Civil Rules, quoted above, it cannot be doubted that a High Court judge has power or jurisdiction and, indeed, the discretion to "after the time of giving judgment or making an order, stay execution until such time as he shall think fit”. In view of the situation described above, it cannot be correct to say as deposed by the applicant that

“the hearing by the High Court of the Application to pay me sum awarded by the Supreme Court in instalments and the granting of the Application were orders made without jurisdiction and constituted errors of Law by the Learned High Court Judge and same must be quashed...”

Charles Hayfron-Benjamin, J.S.C. (as he then was) advised when reading the unanimous ruling of this Court in Republic v. High Court, Accra; Ex-Parte Eastwood Ltd., unreported, Supreme Court, 6 February, 1996, at page 8 that:

This court must therefore necessarily deal with the Superior Courts with great caution in the exercise of our supervisory jurisdiction”.

This court again held in holding 2 in the case of Republic v. High Court, Accra; Ex-Parte Soku & Another, (1996-97) SCGLR 525 at 526 that

“(2) Where there was a claim that there was an error of law appearing on the face of the record of a superior Court such as in the instant case — warranting intervention by the exercise of the Supreme Court's supervisory jurisdiction — it must be such an error going to the wrong assumption of jurisdiction as the error was so obvious as to make the decision a nullity. Timitimi v. Amabebe (1953) 14 WACA 374 at 376 cited”.

From the foregoing, it is clear that the High Court judge had jurisdiction to entertain the application which was brought under Order 42 of the High Court Civil Procedure Rules dealing with execution of judgments. If in dealing with that application, which was properly before him, the High Court judge made any order that the applicant was dissatisfied with, as in this case, the obvious thing for him to do is to appeal against the order and not to resort to certiorari I think that the application is misconceived and ought to be dismissed.

SOPHIA  A. B. AKUFFO (MISS), J.S.C.:.

In his Statement of Case in support of the application herein, Counsel for the Applicant has asked this Court to make an authoritative determination on the issue of whether or not the High Court has the jurisdiction after a judgment has been entered, to order payment of a judgment debt by instalments. This question has been a matter of controversy in the High Court for a number of decades now, however this is the first time this Court has had the opportunity to make a determination thereon. Unfortunately, I cannot lend my support to the position taken by my esteemed brothers on the issue. Farkye, J, in his ruling, which is the subject matter of this application, expressed himself thus on the issue:—

“In this case there had been decisions by the High Court delivered by eminent High Court Judges.  Some of the decisions are against the granting of stay of execution and some are in favour of the refusal of granting stay of execution and payment by instalments.

I am of the view that all these decisions are by High Court Judges which are not binding but persuasive on the High Court.

Order 42, Rule 16(1)(b) The Court or Judge may, at or after the time of giving judgment or making an order, stay execution until such time as they or he shall think fit”.

In my sound mind by this Order quoted above, the High Court has power to order stay of execution and payment of a judgment debt by instalments. See also Order 42 rule 40.

His Lordship then proceeded to grant the application before him, and ordered stay of execution and payment of the judgment debt by instalments. Counsel for the applicant herein submitted that the High Court has no such jurisdiction, for the following reasons:—

(a) Order 42, rule 16(1)(b) of the High Court (Civil Procedure) Rules gives the High Court the power to postpone the time of payment of judgment debt and not the power to determine the specific code.

(b) The judge has power to order a specific mode of payment only if such order is made at the time of delivery of the judgment, or in accordance with terms of settlement by instalments agreed upon by the parties and announced or filed with the court.

(c) If the legislature intended to vest the High Court with the power to order payment of a judgment debt by instalments after judgment has been entered, it would have stated so in clear terms as was done in the case of the rules applicable to the District Courts and the amended English Supreme Court Rules”.

In a Supplementary Statement of Case in Reply to Respondent's Statement of Case, Counsel for the applicant further submitted that the language of Order 41f Rule 16 does not support an interpretation that gives the High Court the jurisdiction to order payment by instalments and that the history of legislation similar to ours shows a clear disinclination of the courts to assume any such jurisdiction without clear rules to the effect.

On the other hand, Counsel for the Respondent in his Statement off Case, submitted that:—

1 .  the language of the rule is so clear as to require no judicial interpretation.

2.   the terms of order 42 rule 16(1)(b), coupled with Order 42  rule 40 quite clear give the High Court the poser to order payment by instalments and therefore, if the applicant is aggrieved by the order of the High Court, his remedy is an appeal rather than an application for an order of certiorari.

In my view, however, had the language of the rules as crystal clear on this issue, as was contended by Counsel for the Respondent, there would not have been such divergent views of eminent judges on what the true legal position is.  The position taken by Counsel for the Applicant is supported by two previous decisions in the High Court, namely, AMO-Mensah V. Owusu, [1972] 1 GLR, 251 and Cabco Metals Ltd. V. Ghana Commercial Bank, [1981] GLR 810.  In the first of these cases, the learned Taylor, J. (as he then was) considered the provisions of Order 42 rule 16 (1)(b) of the High Court (Civil Procedure) Rules, alongside Order 41 rule 8 of the Courts Ordinary, Cap.4 (1951 Rev.) Sched. 11, as well as the terms of Order 47, rule 1 (1) of the English Rules of Supreme Court, 1967. His Lordship noted that the language of the Order 41 rule 8 of Cap. 4 clearly gave the District Courts the power to make such orders. He also pointed out that, whereas Order 42d rule 16(1)(b) was culled, virtually word for word, from Order 42 rule 17 of the English Rules as they existed in 1952, the English Rules had, upon the recommendations of the Evershed Report, been amended in 1956 to give the English High Courts the jurisdiction to stay execution subject to such conditions as the Court thinks fit. He, therefore, held that under the prevailing rules in Ghana, the High Court did not have the jurisdiction to order payment by instalments. (See also Taylor J's obiter dictum in Standard Bank of West Africa V. Boaitey, [1971] 2GLR, 309)

‘Unlike the inferior courts which have power under the Courts Ordinance, Cap. 4 (1951 Rev) Sched. 11 Order 41 rule 8 to order payment by instalments, the High Court had no jurisdiction to order a judgment-creditor to accept payments by instalments. However, by implication from Order 42 rule 40 of the High Court (Civil Procedure) Rules, where the parties had agreed on terms whereby payments would be by instalments, the court could incorporate those terms in the judgment. The Court could not impose terms favorable to either parties, be he the judgment-creditor or judgment- debtor on the other. Consequently, in such an application, the judgment-debtor had the option to take terms proposed by the judgment-creditor or leave it'.

However, in O.K. Bazzar V deGraft-Hanson, [1980] GLR 87 and Ghana Commercial Bank V. Camb Motors Ltd. and others, [1982-83] GLR 489, respectively, Mensa Boison and Amua-Sekyi, JJ took the contrary position.  In the first case, Mensa Boison, J. at page 88 said:—

“A stay of execution under Order 42 rule 16(1)(b) of LN 140A is an exercise of the court's discretion. In my view it is not inconsistent with the exercise of that discretion to attach conditions to the stay. Nor does it make the exercise of the discretion any less so, because the suppliant specially asks for a condition viz. Payment of the judgment debt by stated instalments, during the stay. The effect will be that the stay, if granted by the court is not an absolute stay, but upon condition that the applicant pays the judgment debt by stated instalments during the stay.

That construction of the rule commends it self to me on consideration of the identical English Rule which is Order 42 Rule 19(1) and which in English Annual Practice 91959 Ed.) Vol. 1 at page 1015, reads:

‘Where a judgment is given or an order made for the payment of money by any person and the Court or a  Judge is satisfied on 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 that there are special circumstances which render it inexpedient to enforce the judgment or order or that the judgment debtor is unable from any cause to pay the money, then, notwithstanding anything in Rule 17, 17A or 18 of this Order, the Court or Judge 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 or judge thinks fit”.

In the second case, Amua-Sekyi, J. (as he then was) said, in obiter that on a proper construction of Order 42 rule 16(1)(b), the High Court had the power to order payment by instalments because such an order was an order staying execution conditionally.

Looking critically at the terms of Order 42 rule 16(1)(b), I am inclined to agree with the views expressed in Amo-Mensah V. Owsusu Metals Ltd. V. Ghana Commercial Bank and Standard Bank of West Africa V. Boaitey that there is nothing in this rule that may be interpreted to give the High Court the power to order payment by instalments. Indeed it appears to me that those decisions of the High Court that had upheld such power were based on an application of the amended English Rules, rather than the rules as they exist in this country. Order 42 rule 16(1)(b) only gives the Court the power to postpone payment of the judgment debt. The Court, however, cannot dictate the mode of payment. To my mind, even when one reads this rule in conjunction with rule 40 of the Order, there is still no room for a conclusion that the High Court has the power to order payment by instalments. Indeed, the most cursory look at the latter rule clearly shows that it relates to judgment in which payment of money by instalments is specifically ordered. Where a judgment does not make such a specific order, the High Court cannot on the strength of rule 16(1)(b), subsequently make any such order.

That the present rules do not give the High court the power, after judgment, to order payment by instalment may also be deducted from the very fact that the English Rules of the Supreme Court had to be amended before the English High Court had the power to specify mode of payment after entry of judgment. Thus the Supreme Court Practice, 1995, Vol. 1 Part 1 comments on Order 47 rule 1, which replaced the previous Order 42 rule 17 of the English Rules as follows:—

“This rule confers expression power on the Court to stay execution by writ of fi. Fa. Either absolutely, or for such period and subject to such conditions as the Court thinks fit. The grounds upon which the Court can exercise power are that there are special circumstances which render it inexpedient to enforce the judgment or order for payment of money or that the applicant is unable from any cause to pay the money. Unlike the county court, the High Court has no power to order the payment of a judgment debt by instalments, for the judgment creditor is entitled as of right without leave of the Court and without notice to the judgment debtor to issue execution by writ of fi. Fa. Immediately upon his judgment being entered. By this rule, however, in the specified circumstances, the Court has power to stay such execution, and if necessary to continue such stay provided the judgment debtor pays the judgment debt by specified instalments”. (Emphasis mine)

Furthermore, in footnote 2 paragraph 2 to paragraph 452, of Halsbury's Laws of England, Fourth Edition, it is explained that, since the High Court has no power to order payment of a judgment debt by instalments, 'a stay of execution so long as the judgment debt is paid by instalment operates as an equivalent'.

Additionally, it is worthy of note that the English rule goes to the extent of spelling out, in significant detail, the procedure whereby such applications may be granted. It is so couched that, before this ‘equivalent’ power may be exercised, the court must be satisfied by such evidence as shall be necessary to substantiate the grounds on which the judgment debtor relies, he must disclose his income, the nature and value of any property of his, as well as the amount of any other liabilities of his.  In law, a person to whom any sum of money is payable under a judgment or order is entitled, as of right, to go into execution immediately, therefore, where the rules intend to create the possibility of a postponement of the enforcement of such right, it has been clearly stated, and clear control mechanisms have been stipulated to ensure that the judgment debtor does not unduly abuse the process. One example is Section 22(9) of the Zambian High Court (Amendment) Rules 1997, which, in terms similar to Order 41, rule 8 of Cap. 4, explicitly gives to the Zambian High Court the power to order the payment of judgment debt by instalments. The said Section reads as follows:—

:Where any Judgment or order directs the payment of money, the Court or a Judge may, for any sufficient reason, order that the amount shall be paid by instalments, with or without interest.

... The order shall state that, upon the failure of any instalment the whole amount remaining unpaid shall forthwith become due;

Provided that where there is default in paying any one instalment, there shall be no order for stay of execution on the balance”.

It is also significant that, as far back as 1990, the draft of new Civil Procedure Rules were approved by the Judicial Council, which contained amendments to Order 42, rule 16, the terms of which had been modelled on the English Rules.  The late E.D. Kom, in anticipation of the enactment of these new rules, produced a 3rd Edition of his book on Civil Procedure in Ghana. At page 151 of this book, Mr. Kom discussed Order 44 rule 15 of the said draft rules and commented as follows:—

“The new rules, like the former ones make no direct or express provisions for an order for payment of judgment debt by instalments. It is submitted that the provision under this rule to order stay of execution 'for such period and subject to such conditions as the court think fit' now clothes the High Court with jurisdiction to make an order for payment by instalment ...”

The draft Procedure Rules were never enacted into law and have since 1990, remained under review. However, the very fact that those proposed rules saw fit to include provisions which are effectively identical to those of the English Order 47 rule 1, is a clear indication that the drafters perceived the necessity to include such provisions so as to clothe, the High Court of Ghana with the power to order payment by instalments, which power it does not have under Order 42 rule 16.  Whilst it may be humane for the Court to seek to balance the right of a judgment creditor to an immediate enjoyment of the fruits of his victory in litigation against the ability of the judgment debt, such a balancing exercise can only be performed within the existing parameters of the rules of procedure. The fact that some judges have sought to update our High Court rules by construing Order 42, rule 16 in such manner as to draw to order payment by instalments, in my humble opinion, wrong and amounts to judicial legislation rather than the proper exercise of judicial discretion. For, although under Order 74 of the High Court (Civil Rules), where no provision is made by the Rules, the practice and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the Supreme Court of the Gold Coast’, in my view, the current English Court Practice and procedure for granting an order for payment of judgment debt by instalment are based on a specific legal amendment, which is not in force in this country. If a pressing need has been perceived, to vest such power in our High Court, the only solution is for our legislature to enact the requisite legislation, rather than for the Court to informally import into our judicial process procedures that are based on statutory provisions of a foreign country.

I also wish to observe that, at this stage of our national development, it would be a poor reflection on our legal system if, without any clear laid out parameters, a judgment creditor's enjoyment of the fruits of his victory should be liable to be dished out piecemeal simply because the judgment debtor requested the court to do so, after entering judgment for the payment of the whole amount. Credibility and certainty are key driving factors in economic and business development. How can we expect to achieve national development through the promotion of vibrant business and financial interaction, when any person parting with money, goods or services has no certainty of or control on how his judgment debt would be settled?

For the foregoing reasons, it is my view that under the High Court Civil Procedure) Rules, the High Court of this country has no power, after entry of judgment, to make an order for the payment of a judgment debt by instalments.  Consequently, Farkye, J., stepped outside the bounds of his jurisdiction when he ordered that the judgment debt be paid in instalments and I will, therefore, grant the application for certiorari. 

In this application, the power of the High Court to grant an application for instalment payment of a judgment debt awarded by the Supreme Court was also questioned by the Applicant.  I have had the opportunity to read the views of expressed my learned Brother Kpegah JSC., on this issue and since I am in full agreement with him I will not express myself on that aspect of this application.

COUNSEL

MR. KOI LARBI FOR RESPONDENT.

MR. SAM KUDZETO FOR APPLICANT.

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