KHOURY v. KHOURY [1971] 1 GLR 348

DIVISION: IN THE COURT OF APPEAL

DATE: 7 DECEMBER 1970

BEFORE: AZU CRABBE, LASSEY AND ARCHER JJ.A.

CASES REFERRED TO

(1) Tormekpey v. Ahiable, Court of Appeal, 27 January 1970, unreported; digested in (1970) C.C. 44.

(2) Needham v. Needham (1842) 1 Hare 633; 66 E.R. 1183.

(3) Carter v. Roberts [1903] 2 Ch. 312; 72 L.J.Ch. 655; 89 L.T. 239;51 W.R. 520; 47 S.J. 515.

(4) Cotton v. Heyl [1930] 1 Ch. 510; 99 L.J.Ch. 289; 143 L.T. 16.

(5) Gilbert v. Endean (1878) 9 Ch.D. 259; 39 L.T. 404; 27 W.R. 252,C.A.

(6) Thomas v. Nokes (1868) L.R. 6 Eq. 521; 16 W.R. 995.

(7) Halford v. Hardy (1900) 81 L.T. 721.

NATURE OF PROCEEDINGS

APPLICATION to the Court of Appeal to enforce the orders made by the court in its decision delivered on 7 August 1970 unreported; digested in (1970) C.C. 110 after a similar application had been refused by the High Court. The facts are set out in the judgment of Azu Crabbe J.A.

COUNSEL

J. Reindorf for the applicant

U.v. Campbell for the respondent.

JUDGMENT OF AZU CRABBE J.A

Azu Crabbe J.A. delivered the ruling of the court. This is an application by the plaintiff- appellant brought under rule 28 of the Supreme Court Rules, 1962 (L.I.218), for an order of the court —

(1) Calling upon or directing the receiving appointed upon an order by the High Court, to surrender forthwith to the plaintiff-appellant possession of such of the property in dispute as had been adjudged the property of the plaintiff-appellant; and (2) fixing a time limit within which the said receiver shall comply with the rest of the orders made by this court in its judgment of 7 August 1970.

In an affidavit filed by the defendant-respondent in opposition to the application, an objection is taken to the jurisdiction of this court founded upon the allegation that this is not an application contemplated by the Supreme Court Rules, 1962. Rule 28 of the Supreme Court Rules, 1962 states: [His lordship here read the provisions of the rule as set out in the headnote and continued:] [p.350] of [1971] 1 GLR 348

On 14 October 1970, the plaintiff-appellant, who was victorious in his appeal from a decision of the High Court in this case, made an application, similar to the present one, to the High Court, but this was refused by Kingsley Nyinah J. In his ruling the learned judge said:

“In the peculiar circumstances of this matter, as it now stands, I am of the view that it would not be just or convenient either to order the discharge of the receiver and manager, or else to order that he hand over and surrender the partnership properties to one or other of the parties herein. All this will be done in due time, but not just yet. When that time comes it shall then be decided who shall be entitled to take whatever is due.” Counsel for the defendant — respondent, Mr. Campbell, has argued that before this court can entertain an application under rule 28 of L.I 218, the applicant must show that the repetition of his application before this court is permitted by some enactment. Counsel referred us to a ruling of the Court of Appeal in Tormekpey v. Ahiable, 27 January 1970, unreported; digested in (1970) C.C. 44 in which it is said: “It seems to us that the present application is plainly misconceived. The applicant has not indicated in his notice of motion the rule under which his application is brought, but it is certainly not, and would not, be under rule 28 of the Supreme Court Rules, 1962. The second application before the circuit court was for an order to pay the judgment — debt ordered to be paid into court by instalment. That application having been refused, the same application can be repeated in this court if only it is authorise. An enactment is defined in article 172 of the 1969 Constitution of Ghana as “an Act of Parliament or a constitutional instrument or a statutory instrument or any provision of an Act of Parliament or a constitutional instrument.” Counsel for the applicant has not been able to refer us to any enactment which gives this court the jurisdiction to entertain a repeated application for an order to pay a judgment-debt ordered to be paid into court on instalment basis, after the same had been refused by the lower court, and we ourselves have not been able to find any such enactment.”

Mr. Campbell then contended that the applicant here has not shown the “enactment” under which the application has been brought, and, in his view, the applicant’s remedy, after the refusal of his application by the High Court, was an appeal to this court. Consequently, he argued, the applicant is out of court, and his application should be struck out.

For the plaintiff — appellant — applicant, it was contended by Mr. Reindorf that the application can be brought under either rule 31 or rule 35 or rule 38 of the Supreme Court Rules, 1962. In our opinion, the rule which is relevant in this case is rule 35 which reads: [His lordship here read the provisions of the rule as set out in the headnote and continued:]

We think that rule 35 completely disposes of the preliminary objection raised, for in our order made in the judgment of 7 August 1970 (see (1970)

[p.351] of [1971] 1 GLR 348

C.C. 110), we expressly stated that that order was to be carried out by the court below. The order was in these terms:

It is hereby declared that the partnership known as F.& M. Khoury was dissolve on 1 April 1958. It is further ordered that as the partners by subsequent agreement decided not to sell the partnership property, the appellant is entitled to specific performance of the division of the assets as listed in the first and second schedules to exhibit B of the draft deeds, to complete the transfer. The receiver shall hand over such properties and the net income to the parties respectively.

The receiver is also ordered to pay all creditors of the partnership and to debit the partners equally. The receiver is also ordered to go into the accounts between the two partners and state what is due from one partner to the other. The receiver shall file his statement of account as soon as possible. As regards the vehicles, it is impossible to hand them over now in specie as they would have been sold. And if the proceeds are in the hands of the receiver, then it is accordingly ordered that he should hand over the proceeds to the party entitled according to schedules A and B in the draft deed of dissolution. The other remedies sought can be taken care of by the receiver and he is obliged by this judgment to go into the account between the parties and to collect all outstanding debts from debtors for division between the parties.

The appellant is to have his costs in the court below assessed at 2,500 guineas or N¢5,250.00; and in this court assessed at N¢305.40.

Court below to carry out.”

In our view there is no merit in the preliminary objection, and it was for that reason that we overruled it. It is plain beyond any argument that the present application is covered by rule 35.

We now proceed to consider the merit of the application. In Tor-mekpey v. Ahiable (supra) the functions of the Court of Appeal upon an application under rule 28 were stated as follows:

“Rule 28 can be invoked only by a party who has made an application ‘in the first instance to the court below’ under [any enactment], but it does not confer a right of appeal. An application under rule 28 is therefore a fresh application, and the Court of Appeal, in deciding whether or not to grant it, exercise its discretion in the matter, after assessing the facts and circumstances. independently. The court does not sit primarily to review the exercise of a discretion by the court below.”

As is apparent from the order of 7 August 1970 quoted above that no definite time was fixed, either for the handing over of the properties and the net income to the parties, or for complying with the rest of the orders. And in paragraphs (12) and (13) of his affidavit in support of the [p.352] of [1971] 1 GLR 348 notice of motion the plaintiff-appellant-applicant says:

“(12) My prayer is that the receiver should immediately hand over to my possession all the properties listed in the second schedule in exhibit D hereto, stop collecting rents from the said properties, and notify the tenants thereof that rents in future are to be paid to me or my duly authorized agents.

(13) I also pray that a time limit be set within which the receiver shall file his final accounts in this court.” But the question is: Has this court the power to fix time for the performance of an act ordered to be done upon an independent motion, when no such time was fixed in the order itself? There is no rule in the Supreme Court Rules, 1962, which directly deals with this point, but rule 38 states: “Where no other provision is made by these Rules the Court shall determine the practice and procedure which should apply.”

There can be no doubt that the High Court would have the power to make the orders sought in this application. Where a decree directing an act to be done has been drawn up without precisely stating the place where, or fixing a date within which the act is to be done, the decree is not rendered ineffectual thereby, and the court will, upon a motion for that purpose, fix the place and time for the performance of the act: see Needham v. Needham (1842) 1 Hare 633. Also, where an undertaking to pay money into court or to a joint partnership account at a bank has been given, without fixing a definite date for payment, an order fixing a time is necessary before the undertaking can be enforced: see Carter v. Roberts

[1903] 2 Ch. 312 and Cotton v. Heyl [1930] 1 Ch.D 510. In Gilbert v. Endean (1878) 9 Ch.D. 259, there was a motion to enforce a judgment, and Sir George Jessel M.R. said at p. 266:

“The mode adopted for bringing that question to trial was a motion to enforce the judgment. Now it happens accidentally, for I have no doubt it is an accident, that the judgment required a further motion to enforce it, because it fixed no date for the acts to be done. The one act is directed to be done ‘forthwith,’ and the other act is simply directed to be done without any reference to time. Therefore, technically, no doubt a motion for fixing a day was required, and until a day was fixed the order could not be enforced.” This was the general rule of the old Court of Chancery, and was subsequently embodied in the rules of court (Order XLI, r. 5).

Failure by the court to fix a time for the performance of an act, where an order requires a person to do a specific act is a technical defect in the order, and the court has an inherent power to remedy that defect so as to make the order effectual. The court does not make an order for its own sake, or an order which is a brutum fulmen.

The properties listed in exhibit D are easily identifiable, and we expect the receiver, in the normal course of his duties, to have been keeping proper accounts. Beyond saying that the receiver had gone abroad to [p.353] of [1971] 1 GLR 348 fulfil an international engagement, and that he would be away for a considerable time, Mr. Campbell was not able to resist this application on any legal ground.

We accordingly granted the application, and endorsed that the receiver should carry out “forthwith” the terms of the order made by this court on 7 August 1970. In Thomas v. Nokes (1868) L.R. 6 Eq. 521, it was held that an order of the court for the delivering up of a deed “forthwith” is a sufficient expression of time.

In Halford v. Hardy (1900) 81 L.T. 721 at p. 722, Kekewich J. said:

“Admittedly no one has had the point before him in his experience. Having regard to Thomas v. Nokes (L.Rep. 6 Eq. 521), I think that, notwithstanding what was said in Gilbert v. Endean (39 L.T. Rep. 404; 9 Ch.Div. 259), it must be held that the use of the word ‘forthwith’ dispenses with the necessity for fixing a time, though, but for Thomas v. Nokes, I should be disposed to hold otherwise.”

Our order upon this motion that the receiver comply with the orders of 7 August 1970 “forthwith” simply means that the acts he is required to perform are to be done as soon as it is reasonably practicable.

DECISION

Order accordingly.

K. T.