EBOE v. EBOE [1961] GLR 432

DIVISION: IN THE HIGH COURT, ACCRA

DATE: 27TH JUNE, 1961

BEFORE: OLLENNU J.

CASES REFERRED TO

(1) Coleman & Co Ltd. v. Smith & Co. Ltd. [1911] 2 Ch. 572, C.A.

(2) Wilson v. Church (No. 2) (1879) 12 Ch.D. 454

(3) Baker v. Lavery (1885) 14 Q.B.D. 769, C.A.

(4) Atkins v. Great Western Rly (1886) 2 T.L.R. 400, C.A.

(5) Wootton v. Sievier (1913) 30 T.L.R. 165, C.A.

NATURE OF PROCEEDINGS

APPLICATION by defendant for a stay of execution pending appeal. The facts are fully set out in the ruling.

COUNSEL

E. N. P. Sowah for the defendant-applicant.

E. Akufo-Addo for the plaintiff-respondent.

JUDGMENT OF OLLENNU J. On the 16th June, 1961, the court gave judgment for the plaintiff for: (a) a declaration that the defendant is trustee of one-half share of certain business interests and assets held by him; (b) an order for accounts; (c) an order for payment to the plaintiff of sums which may be found due to him; and (d) an order for transfer by the defendant to the plaintiff of one-half part of certain shares and interests held by the defendant in certain companies.

The defendant has filed notice of appeal against the said decision, and has applied to the court for an order for stay of execution pending the determination of his appeal. He relies on three grounds in support of his application. They are: (a) the plaintiff is not resident in Ghana and has no physical or visible assets whatsoever in Ghana; (b) all assets of the plaintiff in Lebanon are under attachment under due process of law; and (c) the taking of accounts would be a long and an expensive process.

[p.433] of [1961] GLR 432

“Writ of execution and issuing execution against any person” are defined in Order 42, rule 8 of the Supreme [High] Court (Civil Procedure) Rules, 1954, and correspond with Order 42, rule 8 of the Rules of the Supreme Court of England, and are as follows: “In these Rules the term ‘writ of execution’ shall include writ of fieri facias, capias, sequestration, and attachment, and all subsequent writs that may issue for giving effect thereto. And the term ‘issuing execution against any party’ shall mean the issuing of any such process against his person or property as under the preceding rules of this Order shall be applicable to the case.”

Order 42, rules 1 to 6, prescribe the method of execution in cases where the judgment or order directs payment of money or delivery or transfer of property, real or personal, and rule 7 deals with execution where the judgment or order requires a person to do any act other than the payment of money or to abstain from doing anything. The declaration that the defendant is a trustee does not require any person to do anything or abstain from doing anything, and there is no method for executing it. The order for payment of money may be enforced as provided under Order 42, rule 3, i.e. by attachment of property or by imprisonment or both; the order for transfer of shares and assets may be enforced as provided under rules 5 and 6. But the execution in those cases cannot proceed until the specific amount of shares as also the assets to be transferred are ascertained. There is no execution which can proceed now. Consequently no question of stay of execution can arise. Next is the order for accounts. Taking of accounts in my opinion constitutes proceedings, not execution. Therefore the only process for its enforcement would be attachment or committal as provided by Order 42, rule 7. An application that the taking of accounts should be stayed is an application for stay of proceedings: see Coleman & Co. Ltd. v. Smith & Co. Ltd.1(1) It is in the discretion of the court to grant or refuse stay. The court will grant a stay where the special circumstances of the case require that it should be granted. Thus where an appeal, if successful, will be rendered nugatory if execution should issue before the determination of the appeal, e.g. where an unsuccessful claimant in an interpleader suit appeals, but the attached property is sold before determination of the suit, his appeal would be rendered nugatory, therefore stay of execution would be granted: Wilson v. Church (No. 2).2(2) And where judgment is entered in favour of a person not resident within the jurisdiction or about to leave the jurisdiction the court will stay execution if the judgment is for the payment to him of a specific sum of money or the delivery or transfer to him of ascertained and identified piece of real or personal property, because if such money is paid or property transferred to him, and he leaves the jurisdiction taking them away or disposing of them the court will not be able, upon the appeal [p.434] of [1961] GLR 432 succeeding, to enforce their return to the other party: see Baker v. Lavery,3(3) Atkins v. G. W. Ry.4(4) and Wootton v. Sievier5(5). Thus in this case if the order for payment and transfer of assets had decreed payment of specific sums of money or transfer of specified property, real or personal, stay of execution could be granted. But that is not the case. Therefore in so far as this application is for stay of execution, it is premature as no execution can possibly issue forthwith as occasion for execution has not arisen; and in so far as it is an application for stay of proceedings, ie. taking of accounts, the stay of execution and/or proceedings will not render the applicant’s appeal, if it succeeds, nugatory.

The application is therefore dismissed with costs fixed at £G2-9s.

DECISION

Application dismissed.