SUPREME COURT, ACCRA
DATE: 28TH MAY, 1962
BEFORE: KORSAH, C.J., ADUMUA-BOSSMAN AND CRABBE, JJ.S.C.
CASES REFERRED TO
(1) Okuma v. Tsutsu (1944) 10 W.A.C.A. 89
(2) Berkeley v. Elderkin (1853) 1 El. & Bl. 805; 118 E.R. 638
(3) Bailey v. Bailey (1884) 13 Q.B.D. 855, C.A.
[p.412] of [1962] 1 GLR 411
(4) Ex parte Chinery; Re Chinery; (1884) 12 Q.B.D. 342, C.A.
(5) Findlay v. Findlay [1947] P.122, C.A.
(6) Capron v. Capron [1927] P. 243.
NATURE OF PROCEEDINGS
APPEAL from a judgment of Ollennu, J., in the High Court, Accra, delivered on the 27th June, 1960 (unreported), dismissing the claim of the plaintiff for rents collected by the defendant in respect of property which the plaintiff claimed to have purchased in execution of a judgment of the Ga Native Court “B”. The facts are more fully set out in the judgment.
COUNSEL
Appellant in person.
Defendant in person.
JUDGMENT OF ADUMUA-BOSSMAN J.S.C.
This appeal is against a judgment dated the 27th June, 1960, of Ollennu, J., sitting in the High Court, Accra, whereby he dismissed the claim of the plaintiff-appellant (who will hereafter be referred to shortly as the plaintiff) in favour of the defendant-respondent (who will be referred to shortly as the defendant) for the sum of £G572 15s. alleged to be the amount of rents collected by the said defendant in respect of three certain rooms in a house situate at Club Road, Accra, which the plaintiff claimed to have purchased validly at an auction sale in execution of a judgment of the now defunct Ga Native Court “B”. The action raised the issue of the legality or validity of the execution, and the conclusion or decision of the learned judge was that: “The execution which issued upon exhibit A [the native court’s judgment] is illegal and void ab initio, and everything done under that execution is itself null and void.”
He gave as his grounds for this conclusion the reason that: “The judgment exhibit A did not decree payment of money; it is merely a declaratory judgment which decrees a right in favour of Madam Molley [plaintiff in the action] to be paid fifteen shillings a month as from a particular date It is not the type of order upon which the sort of execution prescribed in Part 17 of the Procedure Regulations can apply. The decree in exhibit A gave Madam Molley a legal right which she can enforce by a court action if the right is infringed by default in the payment of any one month’s maintenance; it is not a continuing decree like an order for alimony pendente lite, or for maintenance in a matrimonial suit, the payment of which can be enforced any time it falls into arrears by application to the court, without the necessity for any further steps being taken to obtain an order to perfect the original order. See Linton v. Linton (1885) 15 Q.B.D. 239; Stoner v. Fowler (1885) 13 App. Cas. 20 and Findlay v. Findlay [1947] P. 1122.”
The judgment of the native court dated the 16th October, 1947, admitted at the trial as exhibit A, was in the following terms:
“Suit No. 870/47 MOLLEY versus ABERDU & PAISITON
COURT ORDER
Defendants are hereby ordered according to custom to give one room in the property to plaintiff for sleeping purposes until his death; and also to maintain the plaintiff at 15s. per month as from end of October, 1947.
Failure to comply with this order will result in executive process being issued by this court. Copy to serve on defendants as well as to N.A. Police Inspector.
(Sgd.) D. M. TAGOE President
This appeal has raised the question whether the form of the said judgment is such that execution could not issue thereon by the process prescribed by the Native Courts Procedure Regulations1(1) as held by the learned judge.
[p.413] of [1962] 1 GLR 411
After the most anxious and careful consideration of the matter, I have come to the conclusion, that, with great respect to the learned trial judge, it is impossible to subscribe to his view that the portion of the judgment or order of the native court in the following terms, “Defendants are hereby ordered … also to maintain the plaintiff at 15s. per month as from end of October 1947” is, to quote his words, “not the type of order upon which the sort of execution prescribed in Part 17 of the Procedure Regulations can apply.”
It seems to me that the clear and unambiguous terms, and the obvious meaning, of the order is that the defendants were ordered to pay the plaintiff the sum of 15s. per month as from the end of October 1947, for her maintenance. It is difficult to believe that the learned judge took the view which he expressed because of the fact that the words “to pay” were not expressly inserted in the order. If that was the reason namely, the absence of the words “to pay” in the order of the Native Court, then surely, he overlooked a very well known and oft invoked rule of interpretation in respect of proceedings of native courts and tribunals, a rule which was most impressively expressed by Graham-Paul, C.J. (Sierra Leone) in the case of Okuma v. Tsutsu2(2) where he said: “It has been frequently pointed out that in considering proceedings in Native Tribunals, it is the substance, and not the mere form, that matters.”
Paradoxically enough, after describing the order as he did, he proceeded immediately thereafter to admit and acknowledge it as an order for payment of money, when he said as follows: “What appears to have happened in this case is that the defendant and his brother defaulted with the payment of the 15s. a month to their mother for her subsistence, as decreed in exhibit A.” As, therefore, the learned judge himself expressly acknowledged and described the native court’s order exhibit A as a “decree for payment of 15s. per month to their mother for her subsistence”, it seems extremely difficult to comprehend why he proceeded further to hold that “it is not the type of order upon which the sort of execution prescribed in the Procedure Regulations can apply”, particularly when regard is had to the terms of regulation 92, which he himself set out, as follows: “A decree of a Native Court for the payment of money in a civil cause or matter may be enforced by the attachment and sale of the property of the judgment debtor.”
Or can it be that the learned judge took this view of the enforcement of the order because it was not an order for a lump sum payment but rather periodical payments? If that should be the reason, then surely there can be no justification for it, having regard to the provisions of regulations 40 and 42 as follows:
“40. A Native Court may in its discretion make any order within its powers and jurisdiction which it considers necessary for doing justice.”
“42. A Native Court when making an Order may fix a time for compliance, and in particular, may direct that any sum of money ordered to be paid may be paid by instalments.”
Having regard to the wide powers conferred by the regulations above reproduced, it can hardly be contended with any seriousness that the order for payment of 15s. per month was beyond the competence of the native court. The learned judge has not expressed that view, i.e. that the making of the order was incompetent to the native court, and indeed his
[p.414] of [1962] 1 GLR 411
ultimate decision that it should be sued upon as a valid order would seem to negative the idea that he considered the order as being beyond the competence of the native court. Yet he maintained that it could not be enforced by the method of execution prescribed for enforcement of an order for payment of money made by a native court and went on to observe that the order or decree in question was: “not a continuing decree like an order of alimony pendente lite or maintenance in a matrimonial suit, payment of which can be enforced anytime they fall into arrears by application to the court without the necessity for any further steps being taken to obtain an order to perfect the original order.”
But in respect of this latter observation also it seems difficult to see the point or points of difference which the learned judge finds to exist between the maintenance order made by the native court and that which is usually made by a matrimonial court. As far as one can see, apart from being made by courts exercising different jurisdictions, the maintenance order made by one is analogous and similar to that made by the other court, and, more important, the order in each case is enforceable according to the provisions for execution specially provided by the enactment or statute creating each court.
Be that as it may, the learned judge, with due respect, cannot be, and was not, correct in his proposition that in the case of this particular order of the native court the only proper method of enforcing the same is to: “institute fresh action and prosecute that fresh action to judgment”. The fallacy in that proposition becomes glaringly obvious when regard is had, or consideration is given, to the situation in respect of the first month’s instalment. When at the end of the month of October 1947, the first instalment of 15s. became due and payable but default was made to pay it, why could not the plaintiff-creditor enforce payment by the process for execution prescribed by the Procedure Regulations? And if payment of the first instalment could have been enforced in that way, why could not payment of other installments be similarly enforced?
At any rate the learned judge’s proposition that fresh action has to be instituted and prosecuted to judgment in respect of every instalment which the plaintiff-creditor desired to enforce under the native court’s judgment seems definitely contrary to the clearly established doctrine or principle that where new rights are created with special remedies, it is only the special remedies which have been provided which must be pursued; and that where an enactment has made provision as to how the decisions of a court created by it are to be enforced, those provisions for execution and those alone, must be followed.
So in Berkeley v. Elderkin3(3) where a writ was issued in the old Queen’s Bench to enforce the judgment of a county court for debt and costs which had remained unsatisfied, Lord Campbell, C.J. upholding the objection that the action will not lie, stated as follows: “I am clearly of opinion that an action cannot be maintained on the judgment of a county court … I think it quite clear, when we look at the provisions of stat. 9 & 10 Vict. c. 95 [County Courts Act 1846] that the intention of the Legislature was to confine the remedy on the judgments of courts constituted under that Act to the remedies specifically provided in the Act … The intention of the Legislature will be entirely defeated if the creditor is at liberty to adopt this course . . I think this brings the case within the principle, that, where new rights are given with specific remedies, the remedy is confined to those specifically given.”4(4)
[p.415] of [1962] 1 GLR 411
Again in the case of Bailey v. Bailey5(5) Bowen L.J. explains the only circumstances under which an action will lie for money which in effect has been already awarded, as follows: “An obligation to pay a sum of money created by statute may be enforced by action, and the High Court has power in such an action under the Rules of the Supreme Court, 1883, Order III, rule 6, and Order XIV, at least in some instances, to make an order summarily for payment of the money due by force of the statute for it is a debt created by statute. Again, an action at common law will lie upon the judgment of a Court of Common Law, for it will be assumed that the amount for which judgment has been signed is actually due. The whole of the reasoning applicable to the subject, is admirably stated in the judgments of Alderson and Bramwell, BB. delivered in Hutchinson v. Gillespie 11 Exch. Div. 798. It is there pointed out that no action will lie upon a decree in equity, because no promise can be implied at common law to pay a mere equitable debt; and no action will lie upon the judgment of a county court for the reasons stated in Berkeley v. Elderkin 1 El. & Bl. 805; those reasons being that where new rights are given with specific remedies, the remedy is confined to those specifically given.”
It appears clear, therefore, from the foregoing authoritative explanations of the true legal position, that the proposition of the learned judge that fresh action should have been instituted and prosecuted to judgment as the only proper means of enforcing payment of the arrears of the monthly payments decreed by the native court’s judgment, exhibit A, is quite untenable. The proper method was that prescribed by regulation 92 of the Procedure Regulations, namely application for execution of the decree for the payment of the amount due by attachment and sale of the property of the judgment debtor, and that procedure having been followed, there was, in my view, nothing unlawful about the execution as such.
This decision as to the regularity of the execution does not, however, finally dispose of the case, for there remains outstanding for consideration the question whether the plaintiff satisfactorily established ownership to the three rooms which she described and claims in the statement of claim in this action. It is a matter of common knowledge that a purchaser under a sale in execution acquires no more than the right, title and interest, if any, of the execution-debtor; and therefore such a purchaser claiming a declaration assumes the burden of establishing the execution-debtor’s title.
In this case it is significant that firstly, it is not satisfactorily established that the three rooms which the plaintiff now claims are those which were actually sold to her. In this connection it is decisive that her own witness the auctioneer Ohene Glover testified that when he and the plaintiff and defendant together with Mr. Haizel, registrar of the court, who at one stage was appointed as receiver in respect of the three rooms claimed by the plaintiff, went to the house for the purpose of identifying the rooms, when he, the auctioneer pointed out one set of three rooms as those he sold, the plaintiff pointed out a different set as those she purchased. It is admitted that although the plaintiff obtained a writ of possession shortly after the purchase, she was never put in possession of these three rooms she now claims. Finally, although she identified two of the rooms by certain tenants from whom she alleges she obtained certain information, she never called them as witnesses at the trial. The question therefore of the three rooms which she now claims being those which were sold to her is left unestablished. Secondly, and much more important, is the circumstance that not only did the plaintiff make no
[p.416] of [1962] 1 GLR 411
effort whatsoever to establish the alleged title or ownership of the execution-debtors which she claims to have acquired but the evidence of the defendant that: “the house No. D926/3 Club Road was devised to myself, two brothers of mine and a cousin” seem to negative any individual ownership by the defendant to the three rooms which the plaintiff claims. At any rate the onus is on her (the plaintiff), and she has failed completely to discharge it.
For these reasons I would confirm the judgment of the learned trial judge, though on different grounds, and dismiss the appeal.
JUDGMENT OF KORSAH C.J.
I agree.
JUDGMENT OF CRABBE J.S.C.
I also agree, and have little to add to the careful and reasoned judgment delivered by my brother Adumua-Bossman. In my opinion the learned trial judge fell into error mainly because he regarded the “order” of the native court as a declaratory judgment. This is surprising because the “order” or judgment on the face of it ordered the payment of a fixed sum of money, fifteen shillings, payable at specific periods, and this finally determined the liability of the defendant to the plaintiff. A final judgment is sometimes defined as “a judgment obtained in an action by which a previous existing liability of the defendant to the plaintiff is ascertained or established”: per Cotton, L.J. in Ex parte Chinery; Re Chinery.6(6) A declaratory judgment on the other hand merely declares the rights of a party without any reference to their enforcement. In my view the order or judgment of the native court
granted a specific remedy to the plaintiff which was capable of being enforced in the manner prescribed under Part 17 of the Native Courts (Southern Ghana) Procedure Regulations.
The distinction which the learned trial judge sought to draw between the order of the native court and an order for alimony pendente lite or for maintenance in a matrimonial suit, can best be described as unreal or illusory. In the matrimonial cases cited in the judgment the contention had been that some further step ought to have been taken before the procedure under section 5 of the Debtors Act, 1869,7(7) England could be invoked and that a judgment summons issued under that section was inappropriate for sums claimed to be due under an order for alimony pendente lite or for maintenance.
It is provided by section 5 of the Act as follows: “Subject to the provisions hereinafter mentioned, and to the prescribed rules, any court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes a default in payment of any debt due from him in pursuance of any order or judgment of that or any other competent court …” A sum of money due under an order for alimony pendente lite or maintenance constitutes a “debt due” to which the procedure of section 5 is applicable and where the particular order specifies the time at which it is to be carried out no further order before the issue of a judgment summons appears to be necessary. In Findlay cases v. Findlay8(8) one of the referred to by the learned trial judge in this case, Somervell, L.J. said: “In the view which I take of the order in question here it does fix the time at which the various instalments are to be paid. I think that that is involved in the decisions, to which I have referred, that these orders are enforceable under
[p.417] of [1962] 1 GLR 411
s. 5 of the Debtors Act, 1869. I think that for an order to come within that section, it must, on the face of it, be expressed to show with sufficient clarity that certain sums, which either are set out or can be readily calculated from what is the order, are payable within certain successive dates. This is the decision which, speaking for myself, I should have reached without any difficulty on the terms of the order; and it is also in accordance with what was said by Bateson, J. in Capron v. Capron.”
In Capron v. Capron9(9) an order was made for payment of permanent alimony at the rate of £G450 per annum. The order was not complied with and at the time the motion for the issue of a writ of sequestration was brought there were considerable arrears under the order. For the respondent it was contended that an order for alimony is not an order to do an act “in a limited time” within the scope of Order XL II, rule 5 (6) of the Rules of the Supreme Court. It was argued for the petitioner that the case was governed by Matrimonial Causes Rules, 1924, rule 79 (a) which reads: “In default of payment to any person of any sum of money at the time appointed by any order of the Court for the payment thereof, a writ of fieri facias, sequestration, or elegit shall be sealed and issued as of course in the Registry upon an affidavit of service of the order and of non-payment.”
After dealing with the two objections raised against the motion Bateson, J. said: “I think that this is not a mere order to pay a yearly sum per annum for maintenance by monthly instalments. It is something more than a mere order for the payment of money. It is an act which has to be done at regular times in accordance with the terms of the order, and in my judgment, when the Court has ordered money to be paid monthly, it means that the moneys are to be paid within the month, which I think is a limited time, so that on either view of the case in this regard the argument fails.”10(10)
In my judgment the order of the native court purporting to have been made under rules 40 and 42 of the Native Court (Southern Ghana) Procedure Regulations shows on the face of it with sufficient clarity that a certain sum specified or readily ascertainable from the terms of the order itself is payable within certain successive periods. It was, therefore, a decree “for the payment of money in a civil cause or matter” within the terms of regulation 92 of the Native Court (Southern Ghana) Procedure Regulations, and where there is a default in payment resulting in arrears the rules have provided only one mode of enforcing the decree. The case of Bailey v. Bailey11(11) is an authority for the proposition that where a special remedy is given by statute, that remedy alone must be followed and no other can be supposed to exist.
It seems to me, therefore, that the order for payment being a final judgment nothing remains more to be done upon default of payment except to carry into effect that order by applying to go to execution.
I would, however, dismiss this appeal for the same reasons stated by my brother Adumua-Bossman.
DECISION
Appeal dismissed.
