AMO-MENSAH v. OWUSU [1972] 1 GLR 251
HIGH COURT, KUMASI
Date: 18 JANUARY 1972
BEFORE: TAYLOR J.
CASES REFERRED TO
(1) Standard Bank of West Africa Ltd. v. Boaitey [1971] 2 G.L.R. 308.
(2) Oduro v. Davis (1952) 14 W.A.C.A. 46.
NATURE OF PROCEEDINGS
MOTION to pay a judgment debt by instalments. The facts are fully set out in the ruling.
COUNSEL
Hayfron-Benjamin for the applicant (judgment debtor).
Owusu Edusei for Mmieh for the respondent (judgment creditor).
JUDGMENT OF TAYLOR J.
This is a motion by the defendant judgment debtor praying for an order of this court to be permitted to pay a judgment debt and costs amounting to the rather very huge sum of N¢41,316.54 by an initial
deposit of N¢500.00 and monthly instalments of N¢50.00. The motion was supported by an affidavit and the substantial portion is as follows: “Since the judgment was obtained against me by the plaintiff judgment creditor I have made it clear to him that I am unable to satisfy the debt in whole. With the assistance of friends, I made certain proposals for the repayment of the judgment debt and costs by a substantial deposit and instalments. The judgment creditor rejected the offer and accordingly the friends who were willing to assist me withdrew their assistance. Presently, I am not in a good way of business and I cannot therefore pay the whole of the judgment debt and costs.
I propose, however, that I shall be permitted to pay a deposit of N¢500.00 and a monthly instalment of N¢50.00. I expect that when my business improves I shall be able to pay more money in order to enable me to pay off the whole of the judgment debt and costs.” The plaintiff judgment creditor, has resisted the motion by affidavit the relevant portion of which reads: “That I verily believe that the defendant judgment debtor applicant has the means to satisfy the judgment debt but has deliberately refused to pay same since the date of judgment. That the defendant judgment debtor applicant is a man of sufficient substance with many dependable and regular sources of income over and above the judgment debt. That no genuine and serious proposals regarding the payment of the debt have ever been made other than derisory ones as contained in his affidavit paragraph (8) in support of his application. That sources of income of the defendant judgment debtor referred to and known to me in paragraph (3) of this affidavit are as follows: (a) He is the chairman of the State Construction Corporation, Ghana, receiving a lucrative salary including table allowances. (b) Managing Director of Amoo-Mensah Brothers with a big salary and holds 55 per cent of the shares of the company having two trading stores and wholesales in Kumasi. (c) Registered building and road contractor.
[p.253] of [1972] 1 GLR 251 (d) Arms and ammunition dealer. (e) Importer in Group ‘B’ handling large consignments with offices in Accra and making large margin of profit as evidenced in Commercial and Industrial Bulletin Nos. 64, 70 and 74 of 1/9/70, 16/9/70 and 29/9/70. (f) Owner of twin storey-building house No. O.I. Ext. 4 Plot 11, New Tafo, Kumasi yielding reasonable amount monthly from rents. (g) Owner of three big cocoa farms at Prestea as well as orange and coffee farms at Prestea. That the business of the defendant judgment debtor applicant has indeed improved and expanded and is still a very large prosperous going concern which has suffered no economical decline. That due to good prospects and expensive programme of his business a new branch of Amoo-Mensah Brothers has been opened at Lebanon Street next to G.N.T.C. Department Store at Kumasi, a healthy sign of a booming period for the defendant judgment debtor applicant’s business.
That the amount realised by court from auction sale of the Brothers’ goods was N¢10,000.00 for which with his 55 per cent shares he would be entitled to N¢5,500.00 of the total proceeds.
That at a fund raising political rally at Agona-Kwabre constituency he contributed N¢500.00 and at another rally held at Ntonso, he again contributed N¢200.00 and lastly at the Abbey Park rally in Kumasi, he contributed N¢200.00. That in view of what has been deposed to above the defendant judgment debtor applicant has more than sufficient means to meet his obligation under the judgment and therefore the sole object of this application is to delay the payment of what is lawfully due to the plaintiff judgment creditor. That therefore having regard to my age which is 67, to enable me to enjoy some of the fruits of my labour and judgment, the defendant judgment debtor applicant should make at least a substantial deposit of 50 per cent of the judgment debt and to pay the balance by reasonable instalments of N¢1,000.00 per month. That in the circumstances I am hereby praying to this honourable court to reject the application and order the defendant judgment debtor applicant to pay N¢21,316.54 deposit and the balance of N¢21,000.00 within 20 months at the rate of N¢1,000.00 per month as this my humble request I honestly believe can be met without
any hardship to the defendant judgment debtor applicant. ”In an affidavit in reply the applicant denies the substantive allegation that he is a man of substance and averred that he only gave N¢200.00 at a fund raising political rally. Before dealing with this application on its merits it seems to me with all due respect to counsel on both sides that a preliminary and important question of the jurisdiction of this court falls for determination. When [p.254] of [1972] 1 GLR 251
the motion first came before me, I expressed doubts, doubts which I had previously expressed in the case of the Standard Bank of West Africa v. Boaitey [1971] 2 G.L.R. 308. In that case I dealt with a similar application on its merits and I dismissed the application. The applicant appealed to the Court of Appeal in the hope that that appeal would operate as a stay of execution. On an application by the respondent that the appeal should not operate as a stay, I granted that application and doubted whether the applicant has a right to ask for payment by instalments. I said at p. 321, “Now it seems to me that the initial assumption that indeed he has a right to ask for and the court has jurisdiction to grant instalment payment may be of doubtful validity.”
Counsel for the parties are unanimously of the opinion that on the authority of Oduro v. Davis (1952) 14 W.A.C.A. 46, this court has jurisdiction to order payment by instalments. Now in Oduro v. Davis (supra) the judgment debtor was brought before the court on a “warrant of arrest” and he was examined as to his means. It was as a result of this examination that an order was made ordering him to pay the judgment debt by instalments as a condition no doubt for his release from custody. It seems therefore that the order for payment by instalments took the place of the original decree and the point on appeal in the case was centred around default in paying the instalment.
That case can hardly be authority for the proposition that a judgment debtor can apply to the High Court for permission to pay the judgment debt by instalments. The true legal position is that a judgment creditor at the High Court has a right to issue a writ of fi. fa. without leave of the court or notice to the debtor. At the district court however the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II Order 41, r. 8 provides as follows: “Where any judgment or order directs the payment of money, the Court may, for any sufficient reason, order that the amount shall be paid by instalments, with or without interest. Such order may be made at the time of giving judgment, or at any time afterwards by the same or any other Judge, Magistrate, or other judicial officer having the necessary jurisdiction, and may be rescinded upon sufficient cause at any time.” This provision clearly provides for instalment payment but it is significant that there is no such similar order in the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). Our High Court Rules were substantially culled from the English rules as they existed on 26 May 1952. And as at that date, the applicable order was Order 42, r. 17 of the English rules which is in effect and wording on all fours with Order 42, r. 16 of our present rules. The said Order 42, r. 16 is as follows: “(1) Every person to whom any sum of money or any costs 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:— [p.255] of [1972] 1 GLR 251 (a) if the judgment or order is for payment within a period therein mentioned, no such writ as aforesaid shall be issued until after the expiration of such period: (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.” It was submitted by counsel for the 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 of payment, I must infer from that 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 on to the rule.
The rule as it appeared in the 1954 English Rules of Supreme Court is identical with our rule in form and wording as I have already said. In 1956 following the recommendation of the Evershed Report that rule was amended and in its present form in the English rules it is inter alia itemized as Order 47, r. 1 (1) of the English Rules of Supreme Court, 1967. It is as follows: “(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 circumstances 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, not withstanding anythingin 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 to this order in the Supreme Court Practice, 1970, Vol. 1, p.659 states as follows: “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 inexpedient to enforce the judgment or order for the 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 the leave of the [p.256] of [1972] 1 GLR 251 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.” 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 courts here can also under Order 41, r. 8 of Schedule II to Cap. 4 order payment by instalments.
The words which achieved this in the text of the present English Order 47 (1) are, “subject to such
conditions as the Court thinks fit.” These words it is significant are absent from our rule which clearly merely postpones the time of payment.
In the light of this I hold that this court has no jurisdiction to postpone the right of a successful litigant to enjoy the fruits of his victory. Assuming however that I am wrong and that there is jurisdiction, I cannot see how I can exercise it in favour of the applicant.
He incurred this debt apparently before 1963. Judgment was given against him on 13 January 1969. For three years he has not paid even a single pesewa. Instead on his own showing he made a contribution of N¢200.00 at a political rally. He has an allowance of N¢1,200.00 as Chairman of the State Construction Corporation and although the judgment creditor swore that the amount realised from the sale of the goods in his store fetched N¢10,000.00, N¢5,500.000 of which belonged to him, he did not seriously challenge the averment. The judgment creditor is 67 years old and yet the applicant has put forward proposals before this court which would give him 66 years to pay the debt.
I cannot understand how any debtor can seriously expect a court of law to postpone the debt of a creditor for such an impossible period when it is clear that by that time both the debtor and the creditor will undoubtedly be dead.
I cannot help feeling that this debtor has in the words of the judgment creditor “the means to pay the
judgment debt but has deliberately refused to pay same since the date of the judgment.”
In the result, assuming there is jurisdiction, I think this is not a proper case to grant payment by
instalments. The application is accordingly dismissed with costs assessed at N¢50.00 and the judgment
creditor is at liberty to go into execution.
DECISION
Application refused.
Motion dismissed.
