HIGH COURT, SUNYANI
Date: 12 NOVEMBER 1973
OSEI-HWERE J
CASES REFERRED TO
(1) Kwabena v. Aninkora [1964] G.L.R. 299, S.C.
(2) Badu v. Kwadjo [1971] 2 G.L.R. 346.
(3) Rabbits v. Woodward (1869) 20 L.T. 778.
(4) Noel v. Ahuloo (1950) D.C. (Land) ‘48—’51, 264.
(5) Gawler v. Chaplin (1848) 2 Exch. 503; 18 L.J.Ex. 42; 11 L.T. (o.s.) 68; 13 J.P. 154; 154 E.R. 590.
(6) Aldred v. Constable (1844) 6 Q.B. 370; 3 L.T. (o.s.) 299; 8 Jur. 956; 115 E.R. 142.
NATURE OF PROCEEDINGS
RULING on a preliminary point whether a judgment creditor can lawfully attach a judgment debtor’s immovable property in execution of a judgment debt without first exhausting his movables.
COUNSEL
Agyepong for the plaintiff.
Osei Kofi for the first defendant.
Takyi for the second and third defendants.
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JUDGMENT OF OSEI-HWERE J
By the order of the court the first issue set down for trial was taken as a preliminary point of law for hearing. That issue is as follows:
“Whether or not the first defendant could lawfully sell the original plaintiff’s house worth more than 0900.00 in execution of a judgment debt of 060.00 and 05.20 costs without first taking out a summons to show cause, or first selling the movables of the original plaintiff in satisfaction of the said judgment debt and costs.”
There is no dispute that the first defendant had obtained a judgment in the sum of 060.00 and 05.20 costs against the deceased plaintiff, who stood as surety, and the principal debtor. There is also no controversy, as disclosed by the application for a writ of fi. fa. exhibited, that the first defendant (as the plaintiff-judgment-creditor) applied to the registrar of the District Court Grade II, Sunyani that the compound house No. Z. 116 situate at Sunyani Zongo, and belonging to the deceased plaintiff, be attached for sale in satisfaction of the said judgment debt of 065.20. There is no controversy that following the said application for a writ of fi. fa. the said house was duly sold by the second defendant to the third defendant for the sum of 0900.00.
It is the contention of counsel for the plaintiff that the said sale of the house was illegal since the first defendant ought to have first levied against the personalty of the deceased plaintiff and it was only when that proved insufficient that he could have attached the house. In support of his argument counsel for the plaintiff referred the court to the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II, Order 44, r. 14 and to the Supreme Court decision of Kwabena v. Aninkora [1964] G.L.R. 299. In reply counsel for the second and third defendants argued that the decision in Kwabena v. Aninkora could be distinguished since in that case the judgment went by default whilst it was not so in the judgment from which the fi. fa. proceeded. Counsel also argued that it was the duty of the deceased plaintiff (the defendant-judgment-debtor in the court below) to have disclosed that he had personality which could be attached. Counsel relied on the decision of Badu v. Kwadjo [1971] 2 G.L.R. 346 where Anterkyi J. held that Order 42, r. 46 of the Supreme [High] Court, (Civil Procedure) Rules, 1954 (L.N. 140A) (which is similar to Cap. 4, Sched. II, Order 44, r. 14), is applicable where it is proved that the judgment creditor knows of the existence and whereabouts of the debtor’s movables.
I am satisfied that the Supreme Court’s observations in Kwabena v. Aninkora (supra) as to the circumstances when immovable property can be attached in satisfaction of a judgment debt is on all fours with the preliminary point taken here as to leave no room for any distinguishing. I do not also think that there is any duty on the judgment debtor to, satisfy the judgment creditor that he has sufficient movable property to
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satisfy the judgment debt otherwise the protection given to the judgment debtor by the provisions Cap. 4,
Sched. II, Order 44, r. 14 will be meaningless. It is clear from the first defendant’s application for the writ of fi. fa. that he left the registrar of the district court no choice in the matter when he selected what property should be attached by the fi. fa. The tort committed must, therefore, be borne by the first defendant alone. It was the duty of the first defendant to have applied that the movables of the deceased plaintiff should be attached and it was, in my opinion, only when there was a return on the writ that there were no movables to be attached that he could have directed the registrar (or deputy sheriff) to attach his immovables. The practice that there should be an actual return of nulla bona under the former writ before the party by whom the writ of fi. fa. was issued may issue a writ of fi. fa. for the attachment of immovables is quite analogous to the English practice as contained in Order 47, r, 5 (1) of the new Supreme Court Rules which empowers the issue of fieri facias de bonis ecclesiasticis where the person against whom the fi. fa. is issued has no goods or chattels in the county of the sheriff to whom the writ was directed. The need that there should be an actual return of nulla bona under the former writ was recognised in the case of Rabbits v. Woodward (1869) 20 L.T. 778. I think that this is an eminently more desirable practice than that the judgment debtor should rather be called upon to satisfy the court that the judgment creditor had knowledge of , the whereabouts of his movables before be can seek the protection of Cap. 4, Sched. II, Order 44, r. 14 as argued by counsel.
I do not believe that the Divisional Court case of Noel v. Ahuloo (1950) D.C. (Land) ‘48-’51, 264 as applied in Badu v. Kwadjo (supra) lays down any infrangible rule that in all cases there must be proof that the judgment creditor knew of the existence and whereabouts of the debtor’s movables before he will be prevented from exercising his right of sale over the debtor’s immovables. Each case as to whether he had such knowledge or not must depend upon its own peculiar merits. Knowledge will, of course, be imputed to him where he shut his eyes to the obvious. I think that it will be stretching one’s fancy too far to hold that a debtor who had built himself a house had no movables to satisfy the judgment debt of a mere 065.20. As pointed out in Halsbury’s Laws of England (3rd ed.), Vol. 16, p. 40, para. 59: “Under the writ of fieri facias it is [the sheriff s duty] to seize and sell any goods which he has the power to seize, . . . but not more than sufficient, to satisfy the debt and his own expenses.” See also Gawler v. Chaplin (1848) 2 Exch. 503 and Aldred v. Constable (1844) 6 Q.B. 370, both quoted in Kwabena v. Aninkora. It is for the above reasons that I hold that the sale of the deceased plaintiff s house was wrong and it cannot be made to stand. I accordingly enter judgment for the plaintiff as per his writ of summons. As I have observed before I find no culpability attaching to the second and third defendants, the second defendant being a mere agent of the
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deputy sheriff and the third defendant being an innocent purchaser. I therefore award to the plaintiff 0150.00 costs against the first defendant alone.
DECISION
Judgment for the plaintiff.
S. E. K.
