CABCO METALS LTD. vs. GHANA COMMERCIAL BANK LTD. [1980]DLHC1569

Date	1980-06-11
Suit No.
Citation No.	[1980]DLHC1569

CECILIA KORANTENG-ADDOW J.

ESSEL FOR THE APPLICANT-JUDGMENT-DEBTORS.

M. ATADIKA FOR THE RESPONDENT-JUDGMENT-CREDITORS.

[1980]DLHC1569
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													<main id="main" class="content" style="min-height: 60rem" >CABCO METALS LTD. <o:p></o:p>vs. <o:p></o:p>GHANA COMMERCIAL BANK LTD.<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 810<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
11
JUNE 1980<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;
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ESSEL FOR THE APPLICANT-JUDGMENT-DEBTORS.<o:p></o:p>

M. ATADIKA FOR THE RESPONDENT-JUDGMENT-CREDITORS.<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;
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CECILIA KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CECILIA KORANTENG-ADDOW J.<o:p></o:p>On 21
March 1980, judgment was entered for the plaintiff-respondents (hereafter
referred to as the respondents) against the defendant-applicants (hereafter
referred to as the applicants) for the sum of ¢537,858 with ¢15,000 costs. The
applicants, the judgment-debtors, now apply for a stay of execution and payment
on instalment basis. They have paid ¢230,000 down in respect of this debt and
another sum of ¢628,286.59 which they owe to the respondents. The applicants propose
to pay the balance in respect of both debts by quarterly payments of ¢30,000 to
commence in September until their total indebtedness to the respondents has
been liquidated.<o:p></o:p><o:p>&nbsp;</o:p>The
respondents do not oppose the application, but they do not agree to the terms
of payment proposed. In their affidavit in opposition and their
counter-argument, it was proposed that the terms which would be acceptable to
the bank would be a down-payment of ¢100,000 and thereafter monthly
instalmental payments of ¢50,000. Mr. Atadika, counsel for the respondents, has
also urged that the court has no discretion to force payment by instalments on
the judgment-creditor. The learned counsel referred to Taylor J.’s decision in
Standard Bank of West Africa Ltd. v. Boaitey [1971] 2 G.L.R 308 in which the
learned judge doubted whether the High Court had power to order payment of a
judgment debt by instalments. Then in Amo-Mensah v. Owusu [1972] 1 G.L.R. 251,
the learned judge cleared any doubt which he had about the matter and held that
the High Court had no discretion to order payment by instalments. He stated in
his judgment at p. 256:<o:p></o:p>“In the
light of this I hold that this court has no jurisdiction to postpone the right
of a successful litigant to enjoy the fruits of his victory.”<o:p></o:p><o:p>&nbsp;</o:p>My view
on the matter accords with Taylor J.’s decision. I have always held the view
that the High Court (unlike the inferior courts which have power under the
Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II, Order 41, r. 8 to order
payment by instalments). I cannot order a judgment-creditor to accept payment
by instalments. However, I also hold the view that where the parties themselves
have agreed on terms whereby payment would be by instalments, the court can
incorporate those terms in the judgment. This is implied from Order 42, r. 40
of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). But the court has
no jurisdiction to interpose its power and make agreement for the parties for
payment by instalments. The argument urged by Mr. Essel, mostly on humanitarian
grounds, that the applicants’ business would cripple, can only be considered if
the court had power to make terms for the parties. I hold the view that the
judgment-debtor in such an application, has the option to take the terms
proposed by the judgment-creditor or leave them.<o:p></o:p><o:p>&nbsp;</o:p>I
personally feel that the terms proposed by the respondents are better than
nothing at all and would give the applicants a breathing space to make another
plunge to find the money. However, if I cannot impose the court’s terms on the respondents,
similarly, I cannot impose terms favourable to the respondents on the
applicants. After reading this ruling, counsel for the applicants informed the
court that the applicants would accept the terms proposed by the respondents. I
accordingly make the order for stay of execution of the judgment and also order
payment by instalments. The applicants, the judgment-debtors, shall pay ¢50,000
monthly. Since at the court’s urging, Mr. Atadika agrees to postpone the
commencement date, payment of the instalments shall commence at the end of
September 1980. The interest rate charged by the bank shall continue to run
until final payment. The order is subject to the usual final payment and the
usual default clause.<o:p></o:p>

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