O.K. BAZZAR vs. DE GRAFT HANSON AND ANOTHER [1979]DLHC1092

Date	1979-02-20
Suit No.
Citation No.	[1979]DLHC1092

MENSA BOISON J.

J. ALARAH FOR THE APPLICANT-JUDGMENT-DEBTOR.

LOKKO FOR THE RESPONDENT-JUDGMENT-CREDITOR.

[1979]DLHC1092
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													<main id="main" class="content" style="min-height: 60rem" >O.K. BAZZAR <o:p></o:p>vs. <o:p></o:p>DE GRAFT HANSON AND ANOTHER<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1978] GLR 87<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
20 FEBRUARY 1979<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. ALARAH FOR THE APPLICANT-JUDGMENT-DEBTOR.<o:p></o:p>

LOKKO FOR THE RESPONDENT-JUDGMENT-CREDITOR.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

MENSA BOISON J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MENSA-BOISON J.<o:p></o:p>The
defendant judgment-debtor by counsel moves the court for stay of execution of a
judgment debt of ¢20,610 and for a payer to pay by proposed monthly instalments
after the issue of a writ of fieri-facias by the judgment-creditor. Although it
is conceded that there is power for the court to stay execution by virtue of
the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 42, r. 16 (1)
(b), it is contended that the rule does not enable the High Court to grant the
applicant the further relief of an order for payment of the judgment debt by
instalments. Order 42, r. 16 (1) (b) provides, “The Court or a Judge may, at or
after the time of giving judgment or making an order, stay execution until such
times as they or he shall think fit.” Mr. Lokko arguing for the contention
relies on Amo-Mensah v. Owusu [1972] 1 G.L.R. 250 where Taylor J. sitting at
the Kumasi High Court declined jurisdiction to make an order for payment by
instalment upon a stay of execution, on the ground that Order 42, r. 16 (1) (b)
did not empower the High Court to do so. In contrast with Order 42, r. 16 (1)
(b) of L.N. 140A, the Courts Ordinance, Cap. 4 (1951 Rev.) Sched. II which now
governs civil practice in district courts, by Order 41, rr. 7 and 8
specifically provide for the relief in these terms:<o:p></o:p><o:p>&nbsp;</o:p>“7. The
Court at the time of making any judgment or order, or at any time afterwards,
may direct the time within which the payment or other act is to be made or
done, reckoned from the date of the judgment or order, or from some other point
of time, as the Court thinks fit, and may order interest at a rate not
exceeding £5 per centum per annum to be paid upon any judgment, commencing from
the date thereof or afterwards. 8. Where any judgment or order directs the
payment of money, the Court may, for any sufficient reason, order that the
amount shall be paid by instalments, with or without interest. Such order may
be made at the time of giving judgment, or at any time afterwards by the same
or any other Judge, Magistrate, or other judicial officer having the necessary
jurisdiction, and may be rescinded upon sufficient cause at any time.”<o:p></o:p><o:p>&nbsp;</o:p>It is, I
think, as it ought to be, that in the provisions governing district court
practice the rules spell out the power to grant payment by instalments or stay
of execution. For with the inferior court nothing is within its jurisdiction
unless it is specifically so provided, whereas everything is within the
jurisdiction of the High Court unless it is specifically taken away: see
Peacock v. Bell and Kendall (1667) Wms. Saund. 69 at p. 74.<o:p></o:p><o:p>&nbsp;</o:p>A stay of
execution under Order 42, r. 16 (1) (b) of L.N. 140A is an exercise of the
court’s discretion. In my view it is not inconsistent with the exercise of that
discretion to attach conditions to the stay. Nor does it make the exercise of
the discretion any less so, because the suppliant specially asks for a
condition viz: payment of the judgment debt by stated instalments, during the
stay. The effect will be that the stay if granted by the court is not an
absolute stay, but upon condition that the applicant pays the judgment debt by
stated instalments during the stay.<o:p></o:p><o:p>&nbsp;</o:p>That
construction of the rule commends itself to me on consideration of the
identical English rule which is Order 42, r. 19 (1) and which in the English
Annual Practice (1959 ed.), Vol. 1 at p. 1015, it reads:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“Where a
judgment is given or an order made for the payment of money by any person and
the Court or a Judge is satisfied on application made at the time of the
judgment or order or at any time thereafter by the judgment debtor or other
party liable to execution that there are special circumstances which render it
inexpedient to enforce the judgment or order or that the judgment debtor is
unable from any cause to pay the money, then, notwithstanding anything in Rule
17, 17A or 18 of this Order, the Court or Judge may by order stay execution of
the judgment or order </main>