IN THE HIGH COURT, ACCRA
5 FEBRUARY 1971
BEFORE: ABBAN J.
CASES REFERRED TO
(1) Hebblethwaite v. Peever [1892] 1 Q.B. 124.
(2) Owusu v. Nyamekye, Supreme Court, 20 December 1960, unreported.
(3) Phares v. Abdallah (1941) 7 W.A.C.A. 15.
(4) Lamb (W.T.) & Sons v. Rider [1948] 2 K.B. 331; [1949] L.J.R. 258; 64 T.L.R. 530; 92 S.J. 556; [1948] 2 All E.R. 402, C.A.
(5) Nsiah v. Union Trading Co., Ltd. [1959] G.L.R. 79, C.A.
(6) Apau II v. Dwumaa III [1959] G.L.R. 140, C.A.
(7) Kpeshie II v. Koji II (1946) 12 W.A.C.A. 50.
(8) In re Clements; Ex parte Clements [1901] 1 K.B. 260; 83 L.T. 464; 49 W.R. 176; 45 S.J. 81, D.C.
(9) Northern Assurance Co., Ltd. v. Anang, Court of Appeal, 26 January 1970, unreported; digested in (1970) C.C. 60.
NATURE OF PROCEEDINGS
APPLICATION for leave to go into execution under Order 42, r. 22.
COUNSEL
Amoo-Lamptey (with him C. E. Quist) for the applicant.
E. Quashie-Idun for the respondents.
JUDGMENT OF ABBAN J.
This application is brought under Order 42, r. 22 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), asking for leave to go into execution in respect of a judgment debt and costs awarded by this court on 11 June 1953. Order 42, r. 22 which is relevant to this application reads as follows: [His lordship here read the rule which is set out in the headnote and continued:] The applicant and the respondents were parties in suit No. 271/1952 entitled Messrs. C.F.A.O. v. A. K. Adjeioda. The applicant was a storekeeper keeping one of the stores of the respondents at Kadjebi, Buem. After stock taking, the respondents alleged that the applicant had incurred shortage to the tune of £1,156 17s. Consequently the respondents instituted the action referred to against the applicant for the recovery of this amount. The applicant denied liability and put in a counterclaim for £956 19s. 3d. being the refund of his security and other entitlements. When pleadings closed, the case was referred to a referee to go into the accounts between the respondents and the applicant. The referee went into the accounts and submitted his report to the court. On the whole, the referee found in favour of the applicant, and on 11 June 1953, the High Court, Accra, constituted by Smith Ag.J. dismissed the respondents’ claim and entered judgment for the applicant on his counterclaim in the following manner: “I give judgment for the defendant for £956 19s. 3d. with costs. Counsel’s fees assessed at £52 10s. Referee’s costs at £16 16s. less amount already paid. Other costs to be taxed.”
It is nearly seventeen-and-a-half years since this judgment was pronounced, so it is obvious that the applicant as the judgment-creditor, cannot go into execution without the leave of the court. Hence the present application. The applicant has set out in his affidavit the grounds for his delay and the relevant portions read:
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“(8) That soon after the judgment, I was seriously taken ill; on my recovery I found that my lawyer the late C. C. Lokko, had also been bedridden with stroke and did not recover until his death [sic.].
(9) That I then approached the plaintiff [respondents] for the payment of the said amount but was only met with evasive answers that they were looking through their records.
(10) That the said judgment debt and costs have not been satisfied and I am informed and verily believe that in the circumstances of the case, I require leave to go into execution.”
The respondents do not seem to deny that judgment was given against them. However, learned counsel for the respondent opposed the application. First on the ground that it is most probable that the judgment debt and costs have been paid and this is borne out by the applicant’s failure to make a demand on the respondents for all these years. Counsel further argued that even if it is found that the debts have not been paid, he would still contend that the judgment debt and the costs cannot now be recovered as they are statute-barred by virtue of the Real Property Limitation Act, 1874 (37 & 38 Vict., c. 57), which makes such judgment debts and costs not recoverable after twelve years. Learned counsel submitted that this English Act of 1874 is a statute of general application and it is therefore applicable in Ghana. Learned counsel relied on the case of Hebblethwaite v. Peever [1892] 1 Q.B. 124. Counsel also contended that in any case, the court should refuse the application since the grounds for the delay as given by the applicant in his affidavit are not convincing.
Learned counsel for the applicant on the other hand, contended that the judgment debt and costs have not been paid and on the principles of Owusu v. Nyamekye, Civil Appeal No. 101/60 dated 20 December 1960 (unreported), the burden is on the respondents to prove otherwise. As regards the Real Property Limitation Act, 1874, learned counsel for the applicant submitted that it is not a statute of general application and in the circumstances the limitation of twelve years imposed by that Act is not applicable in Ghana. Learned counsel further contended that in case it is found that the Real Property Limitation Act, 1874, applies in Ghana, he would argue that the twelve years’ limitation applies where one sues on the judgment debt and not where one merely applies for leave to go into execution. Counsel finally submitted that the reasons for the delay as disclosed in the applicant’s affidavit are sufficient and that the applicant is entitled to be granted leave.
The question to be considered is whether or not the judgment-debt and costs have been paid by the respondents. The respondents, as can be gathered from their affidavit in opposition, admit the existence of the said judgment. But they are not sure themselves as to whether the amount involved has been paid. In this connection I agree with the counsel for the applicant that the onus is on the respondents to prove positively that they have paid the judgment debt and costs. The general rule is that the onus probandi lies on the party who substantially asserts the affirmative
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of the issue. But where the defendant in an action for the recovery of a debt but pleads that it has been paid, the burden shifts upon him to prove payment. See Phares v. Abdallah (1941) 7 W.A.C.A. 15 at p. 16. The respondents have failed to discharge this burden. They have not been able to produce evidence, documentary or otherwise, showing payment. In the circumstances, I am of the opinion that the judgment debt and costs have not been satisfied by the respondents.
The next question is whether the Real Property Limitation Act, 1874, is applicable in Ghana and if applicable, whether it applies only where one sues on the judgment debt and not where one applies for execution to issue. Section 8 of the Real Property Limitation Act, 1874, reads:
“No action or suit or other proceeding shall be brought to recover any sum of money secured by mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but within twelve years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same. . . .”
I think it is quite true, as contended by learned counsel for the applicant, that the right to sue on a judgment debt is quite distinct from the right to issue execution under it. They are two different conceptions: See Lamb (W.T.) & Sons v. Rider [1948] 2 All E.R. 402 at p. 407, C.A. So that the judgment creditor of an amount ordered to be paid can obtain his money either by applying for execution to issue or he can proceed by suing on the judgment debt. But, with due respect to learned counsel for the applicant, it does not really matter which of the two procedures a judgment creditor adopts to recover the judgment debt. The effect of section 8 of the Real Property Limitation Act, 1874, is that a judgment debt becomes barred after twelve years and cannot be enforced in any manner wheresoever.
However, after careful examination of the Real Property Limitation Act, 1874, I am of the view that the Act is not applicable in Ghana. This Act, even though it was passed in 1874, did not come into operation until 1 January 1879. It is therefore clear that the Act was not in operation in England on 24 July 1874; and that being the case, I hold that it is not a statute of general application. Consequently in Ghana judgment debts and costs are not statute-barred after twelve years. Of course, this does not mean that in Ghana judgment debts can never become statute-barred. It is provided in section 40 of the Real Property Limitation Act, 1833 (3 & 4 Will. 4, c. 27), that judgment debts ought to be recovered within twenty years. As a matter of fact section 8 of the Real Property Limitation Act, 1874, repeated the language of section 40 of the Real Property Limitation Act, 1833, except that the Act of 1874 substituted twelve years for the twenty years imposed by the Act of 1833. Since this Act of 1833 was in force in England on or before 24 July 1874, it is a statute of general application and therefore applicable in this country. See Nsiah v. Union Trading Co., Ltd. [1959] G.L.R. 79, C.A. and Apau II v. Dwumaa III [1959] G.L.R. 140 at p. 146, C.A. per Korsah C.J.
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I am therefore of the view that in this country judgment debts and costs can become statute-barred after twenty years by virtue of section 40 of the Real Property Limitation Act, 1833. However, the judgment involved in the instant application, was delivered on 11 June 1953 and it is therefore within the twenty years’ limitation. So that the judgment debt and costs awarded in favour of the applicant herein are clearly recoverable: see Dicta of Korsah J. (as he then was) in Kpeshie II v. Koji II (1946) 12 W.A.C.A. 50 at pp. 51-52.
The final question to consider is whether the applicant has shown sufficient cause for the delay. Upon the true construction of Order 42, r. 22 it seems the granting of such applications is a matter of discretion. The applicant must be able to put forward sufficient evidence explanatory of his delay and the court has a discretion either to refuse or to grant the application. In re Clements; Ex parte Clements [1901] 1 K.B. 260, D.C. Wright J. (as he then was) after referring to Order 42, r. 23 of the English Rules of the Supreme Court which is equivalent to our Order 42, r. 22 made the following observation at p. 263 that: “And it is to be remarked that under the rule the Court has a discretion as to granting leave for execution to issue.”
In Lamb (W.T.) & Sons v. Rider [1948] 2 All E.R. 402, C.A. Scott L.J. when reading the judgment of the court had the following to say at p. 408:
“As to the necessity for such leave, counsel for the plaintiffs further argued that even after the expiration of six years a plaintiff is entitled to execution as of right unless a change has taken place by death or otherwise in the parties entitled or liable to execution. In our judgment, however, the issue of execution is within the discretion of the court after six years have elapsed, even where no such change has occurred.”
In the particular circumstances of this case, I see no adequate grounds for refusing to exercise my discretion in favour of the applicant. I am satisfied that the failure to go into execution within six years was due not to the applicant’s negligence but to circumstances over which he had no control. Learned counsel for the applicant also drew my attention to Order 42, r. 15 and submitted that in case it is held that the judgment debt is recoverable, the court should order the respondents to pay interest in respect thereof. Unfortunately, I am not prepared to accede to this request, especially in view of the recent judgment of the Court of Appeal in the case of Northern Assurance Co., Ltd. v. Anang, Court of Appeal, 26 January 1970, unreported; digested in (1970) C.C. 60. I think the applicant should be content with the actual judgment debt and costs.
In the ultimate result, I will grant the application. The applicant is hereby granted leave to go into execution in respect of the judgment debt and costs awarded in his favour by this court on 11 June 1953. Costs to the applicant assessed at N¢35.00.
DECISION
Application granted with costs.
- D.
