HIGH COURT, SEKONDI
Date: 8 AUGUST 1973
EDUSEI J
NATURE OF PROCEEDINGS
APPLICATION for a stay of execution by the defendants-judgment debtors on the grounds, inter alia, that being a statutory corporation execution could not proceed against them without the Attorney-General’s fiat.
COUNSEL
I. G. Carson for the applicants.
C. M. Cann for the respondents.
JUDGMENT OF EDUSEI J
This is an application for a stay of execution by the defendants as judgment debtors. The application is brought under Order 42, r. 16 (1) (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and it is supported by an affidavit; and it does seem to me that the most important averments prayed in aid of the motion are contained in paragraphs (9), (10) and (11) of the supporting affidavit. Before I proceed to consider these averments I think it is necessary to give a short history of this case. On 10 July 1972, judgment was given against the defendants by this court for the sum of 027,740.00 with costs of 0600.00. The defendants appealed, and on 28 May 1973, the appeal was dismissed for non-appearance of the defendants. The plaintiff, as judgment creditor, by his solicitor applied on 21 June 1973, to the Attorney-General for his fiat to enable him to go into execution as provided in section 6A (1) of the Statutory Corporations Act, 1964 (Act
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232), as inserted by the Statutory Corporations Act, 1964 (Amendment) Decree, 1972 (N.R.C.D. 120), s.1.
The Attorney-General’s fiat did not, after one month, come and the plaintiff, through his solicitor, on 31 July 1973, informed the general manager, the chief accountant and the chief administrative officer of the defendant corporation regarding the satisfaction of the judgment debt and costs. This was after they had been served with an entry of judgment. The plaintiff s solicitor drew the attention of those senior officers including the general manager to the judgment of the Court of Appeal and to Act 232 as amended. The general manager, according to the affidavit in opposition, promised to contact the solicitor of the plaintiff by 2.00 p.m. on 31 July 1973, after the said general manager had been in touch with Accra. No news came to the plaintiff or his solicitor when execution proceeded on 1 August 1973.
The defendants in their affidavit supporting the application for a stay of execution stated in paragraphs (9), (10) and (11) as follows:
“(9) That I am advised and verily believe the same that by virtue of the Statutory Corporations Act, 1964 (Amendment) Decree, 1972 (N.R.C.D. 120), the plaintiff ought to have obtained the fiat of the Attorney-General before proceeding to attach the defendants’ properties.
(10) That in the absence of the said fiat I am verily advised that the plaintiff can only proceed against the funds of the defendants and not their properties.
(11) That the defendants have also applied for a relistment of the appeal which was struck out on 28 May 1973 for want of prosecution.”
I shall dispose of paragraph (11) first. It is not true that any application for relistment of the appeal in the Court of Appeal had been filed when this motion was filed on 2 August 1973. Counsel for the defendants confessed in open court that it had not been filed when counsel of the opposite side asked to see a copy of such an application. It is clear that the averment in paragraph (11) is absolutely false and it can be said that it was calculated to mislead or deceive the court. However, in view of the apology made by Mr. Carson, counsel for the defendants, I do not wish to comment on this matter again but will only say that solicitors or counsel, as officers of the court, must give every assistance to the court to arrive at just and fair decisions.
Before dealing with paragraphs (9) and (10) of the supporting affidavit I think it will conduce to an elucidation of my arguments if I set out in extenso sections 1 and 2 of the Statutory Corporations Act, 1964 (Amendment) Decree, 1972 (N.R.C.D. 120). They run thus:
“1. Immediately after section 6 of the Statutory Corporations Act, 1964 (Act 232) there is hereby inserted the following new section: —
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‘6A. (1) In any action, suit or other proceeding against a statutory corporation (whether established by or under this Act or by or under any other enactment), no execution or attachment or process in the nature thereof shall be issued against that statutory corporation without the fiat of the Attorney-General.
(2) An application for the Attorney-General’s fiat under this section shall be in writing accompanied by a copy of the relevant judgment and such other information as the Attorney-General may request.
(3) Where the Attorney-General grants his fiat a copy thereof shall be filed in the Court in relation to whose judgment the fiat was sought and a copy shall be served on the person on whose behalf the application for the fiat was made.
(4) As far as practicable, an application for a fiat under this section shall be dealt with by the Attorney-General within one month after receipt thereof.
(5) Where the Attorney-General refuses to grant his fiat under this section any money which may by the judgment in question be awarded against the statutory corporation shall be paid by the corporation from its funds.’
2. Section 21 of the Railway and Ports Act, 1971 (Act 358) is hereby repealed.”
It is pretty plain from section 6A (1) of Act 232 that no execution can proceed against the defendants, judgment debtors, a statutory corporation, without the fiat of the Attorney-General. This means that the fiat of the Attorney-General is necessary before execution can proceed. This was not the law before 12 October 1972, when by section 21 of the Railway and Ports Act, 1971 (Act 358), it was provided that:
“In any action or suit against the Authority, no execution or attachment or process in the nature thereof shall be issued against the Authority, but any sums of money which may by the judgment of the Court be awarded against the Authority shall be paid by the Authority from its funds.”
This was also the law before the Railway and Ports Act, 1971, came into force: see section 91 (1) of the Railways Ordinance, Cap. 233 (1951 Rev.).
My understanding of this repealed section 21 is that before 12 October 1972, no execution could proceed against the Railway Administration at all. The language there used was short, laconic and crisp and to the point. Under Act 232, s. 6A (1) as inserted by N.R.C.D. 120, execution can proceed against the Railway Administration provided the Attorney-General’s fiat is obtained. Whereas under the Railway and Ports Act, 1971, s. 21, there was an absolute prohibition against execution, it is not so under section 6A (1) of Act 232. The reason for this state of affairs I
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think can be suggested. Before the Railways Administration became a statutory corporation, with its rights and liabilities governed by the Statutory Corporations Act, 1964, it was regarded as a department of the central government and therefore enjoyed certain privileges which were not shared by corporations.
Section 6A (2) of Act 232 shows how an application for the Attorney-General’s fiat can be made and section 6A (3) indicates what is to be done when the fiat is obtained. Subsection (4) enjoins the Attorney-General to deal with applications for fiats within one month after receipt thereof. Finally section 6A (5) shows what is to be done if the fiat is refused. The fiat, in my view, may be refused in two ways: express refusal or implied refusal. Express refusal is where the Attorney-General writes to the applicant indicating that he has refused to issue the fiat. But where one month has passed and the Attorney-General has not issued the fiat or written to refuse it, then it is presumed that he has impliedly refused the application for a fiat. This is commonsense, I think; for if I write to you asking for something and within a reasonable time you do not reply to my letter there is a presumption that my request has been refused. And so since one month has passed since the application was made (and up to the time of going into execution on 1 August 1973 the fiat has not come) I hold the view that the Attorney-General has refused to grant the fiat.
In such circumstances the Railway Administration is required under section 6A (5) of Act 232 as amended by N.R.C.D. 120 to pay the judgment debt and costs from its funds. But if the Railway Administration as judgment debtors do not pay from its funds what is to happen? Is the judgment creditor to sit by and await the pleasure of the judgment debtors or is he to forego the fruits of his judgment? If such were the case then there would be no need to sue a statutory corporation since a judgment recovered against such a corporation will be valueless if it refuses to pay from its funds. And the provisions in section 3 (a) and (b) of the Statutory Corporations Act, 1964, that “Every corporation established under this Act—(a) shall have perpetual succession and a common seal; and (b) may sue or be sued in its name” (the emphasis is mine) shall have no practical meaning in any civilized community in Ghana.
All that I consider necessary under Act 232 when the fiat is refused, is for the judgment creditor or his solicitor or agent to bring to the notice of the judgment debtors, the statutory corporation, that the application for fiat has been refused by the Attorney-General and therefore call upon them to satisfy the judgment debt and costs from their funds, or else suffer any legal processes that the judgment creditor may employ to get his money contained in the judgment.
Counsel for judgment debtors referred me to Order 43, r. 8 of the Supreme [High] Court (Civil Procedure) Rules, 1954. The relevant portion of the said rule runs thus:
“Property in the custody or under the control of any public officer in his official capacity shall be liable to attachment in execution of a judgment with the consent of the Attorney-General, …”
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Counsel therefore contended that property of the Railway Administration is under the control of public officers of that institution and the judgment creditor cannot levy execution in respect thereof without the consent of the Attorney-General.
This rule, in my view, deals with property of public bodies, like government departments, other than statutory corporations since the latter are governed by special legislation. I think it would be wrong for me to say that there is an implied repeal of rule 8 of Order 43 by the later Statutory Corporations Act, 1964 (Act 232), as amended by N.R.C.D. 120. I think it is better to say, and I am here using the words of the author of Craies on Statute Law (5th ed.), p. 551, that “It is more accurate to describe the effect of a private on a public Act by saying that the former creates an exception or exemption than by saying that it effects a repeal.” Act 232 deals with statutory corporations, like the judgment debtors herein, whilst Order 43, r. 8 of L.N. 140A concerns other public bodies that are not statutory corporations.
I have come to the conclusion that the judgment of this court will be rendered ineffective and stale if the judgment creditor is precluded from realising the fruits of his judgment after the judgment debtors have refused to pay from their own funds, and the whole purpose of suing a statutory corporation which the law permits, will be otiose. I do not suppose it was the intention of the law makers that a successful litigant will forever be barred from reaping the fruits of his judgment if the statutory corporation judgment debtor shows a recalcitrant attitude by refusing to pay the judgment debt and costs from its funds. If this were so it would be a negation of justice.
In any case the application is brought under Order 42, r. 16 (1) (b) of L.N. 140A and the relevant portion of that rule reads thus:
“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.”
The point for the court to consider, I think, is under what circumstances is the court to order a stay of execution?
At the time of hearing the instant application there was no appeal pending in the Court of Appeal, because if this were so it would be a circumstance for the court to consider whether or not it was fit and proper to order a stay of execution so that the hearing and determination of the appeal may not be rendered nugatory. Furthermore, as already stated, there was no application for the relistment of the appeal which had previously been dismissed by the Court of Appeal; if such an application had been filed the court could consider that matter.
The applicants were also not asking the court to grant a stay of execution on the ground that they wanted to pay the judgment debt by instalments. In the circumstances I cannot therefore see any justifiable reason to ground a stay of execution.
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I wonder whether this was the appropriate remedy open to the applicants. Since it is the contention of the applicants that the attachment of their properties by virtue of the issue of writs of fi. fa. on the instruction of the judgment creditor was without jurisdiction because the fiat of the Attorney-General was not obtained, I venture to say that their remedy did not lie in an application for a stay of execution in view of the particular circumstances of this case.
I therefore refuse the application, and it is accordingly dismissed with 0100.00 costs
DECISION
Application dismissed with costs.
S. E. K.
