Introduction to Enforcement of Judgements

Introduction:

This note will highlight the processes involved in enforcing a judgement or an order of the court. In doing so, the note will highlight that the first step in the enforcement of an order or a judgement is the entry of judgement, and the second step is enforcing the judgement via a writ of execution, in addition to several other means such as garnishee proceedings and charging orders.

The Essence of Enforcement of a Judgement:

In civil cases, the courts are called to give a judgement or make orders after resolving the legal issues. For instance, a court may be called to order specific performance after resolving the existence of a contract and a breach of said contract.

The question is, what happens after the court orders specific performance or after the plaintiff wins? Will the losing party simply walk up to the winning party and do all that has been ordered? Usually, they do not. Consequently, the winning party will have to take steps to enforce the judgement, which simply means taking steps to ensure compliance with the orders and directions given by the court.

The question now is, what steps must the winning party take to ensure that the losing party complies with the orders of the court? We now discuss these steps.

Step One: File an Entry of Judgement or a Judgement After Trial:

The first step in enforcing the judgement of a court is to file what is known as an entry of judgement or a judgement after trial. The Supreme Court recognised this fact in the case of Asamoah v. State Insurance Company [2022] GHASC 4 (18 January 2022) , where their lordships said:

Entry of judgment under the High Court Civil Procedure Rules, C.I. 47 is the first step in the processes towards the enforcement of the judgment of the court.

Also, in Order 41 Rule 6(1) of the High Court Civil Procedure Rules, 2004 (CI 47) , it is provided that:

Subject to subrule (2), every order of the Court shall be drawn up unless the Court otherwise directs.

We will discuss what it is and the party responsible for drawing it up and filing.

A. What it is:

In the case of Republic v Court of Appeal; Ex-parte Ghana Commercial Bank Pensioners Association [2001-2002] SCGLR 883 , the Supreme Court described this process as follows:

The Judgment After Trial is the formal record of the judgment pronounced by the judge at or after the trial. It is the document which contains the full details of the judgment and must be filed under Order 41 r.1 to give effect to the judgment pronounced by the judge under order 36 r.24. Without it the judgment pronounced by the judge cannot be enforced. Since it is the formal record of the judgment of the court its existence is a most cogent evidence that the judge pronounced judgment at or after the trial…

Similarly, in Asamoah v. State Insurance Company (supra) , their lordships of the Supreme Court said:

The contents include the date of the judgment, the orders made by the court in favour of the judgment creditor and costs awarded as more particularly provided for in Form 17 of the Forms in C.I. 47.

In his book A Practical Guide to Civil Procedure in Ghana , the learned author, Samuel Marfo-Sau JSC, of blessed memory, stated at page 143 that an Entry of Judgement:

Is to remind the judgement debtor [losing party] to discharge the obligations under the judgment. It also makes certain the nature of the obligations under the judgement.

Below is a sample of the entry of judgement as contained in Form 17 of the High Court Civil Procedure Rules, 2004 (CI 47).

B. Who Draws Up and Files the Entry of Judgement:

Per Order 41 Rule 7 (1),

The party seeking to have a judgment entered shall draw up the judgment and present it to the Registrar for entry.

Generally, the following two classes of persons may be said to be a party seeking to have the judgement entered:

i. A person who is a party to the suit in his capacity as plaintiff or defendant, and in whose favour the judgement has been given.

ii. A third party (thus he is neither the plaintiff nor defendant, but an order has been given in his favour. The third party can do this because Order 43 Rule 9 (1) provides that “Any person, not being a party to the cause or matter, who obtains any order or in whose favour any order is made, is entitled to enforce obedience to the order by the same process as if the person were a party.” This rule extends to execution against a third party.

In the recent decision of Asamoah v. State Insurance Company (supra) , the Supreme Court expressed concern over instances where a party in whose favour an order is made may misstate what is actually ordered by the court. Per their lordships,

Under order 41, it is the judgment creditors or their lawyers who interpret the judgment and draw it up in a notice of an entry of judgment. The problem this has posed to the administration of justice in this jurisdiction is that some parties deliberately misstate the actual orders made by the court or the legal basis of their claim before the court in the notices of entry of judgment.

…

Regrettably, registrars of the courts accept these entries of judgment without any questioning and proceed to levy execution based on orders the court had not made. The consequences are numerous and sometimes irreparable. Many parties to litigation before our courts suffer injustices when compelled to satisfy judgment debts they have not incurred. They are, then thrown out of their businesses. Others suffer the brunt of wrongful demolishing of their properties arising from such false representations drawn up in the entry of judgment.

In light of these concerns, their lordships directed that:

i. Registrars of all courts should carefully review notices of entry of judgement filed and satisfy themselves that the contents represent the orders made by the court in the suit.

ii. When in doubt, registrars should seek clarification from the judge who pronounced the judgement before executing any documents for the enforcement of the judgment.

iii. Counsel representing judgement debtors must carefully scrutinise notices of entry of judgment filed by their colleagues and confirm that the contents are in line with the agreement of the parties and/or the final orders made by the court.

Step Two: Executing or Enforcing the Judgement by a Writ of Execution:

If the losing party, upon being served with the entry of judgement, fulfils the orders contained in the judgement, there will be no need for the winning party to take this further step to enforce or execute the judgement. Per Black’s Law Dictionary, execution is:

The act of carrying out or putting into effect (as a court order or a securities transaction)

In enforcing the judgement, the parting seeking to do so must obtain a writ of execution. We now discus the meaning of a writ of execution, its various forms, its effect and duration, and circumstances where leave must be sought to issue a writ of execution.

A. Meaning of Writ of Execution:

In Order 44 Rule 1 of C.I. 47, it is provided that:

In this Order, unless the context otherwise requires, "writ of execution" includes a writ of fieri facias, a writ of possession, a writ of delivery, a writ of sequestration and any other writ in aid of execution.

In Black’s Law Dictionary, the writ of execution is defined as:

An authorization to an executive officer, issued from a court in which a final judgment has been rendered, for the purpose of carrying such judgment into force and effect. It is founded upon the judgment, must generally be conformed to it in every respect, and the plaintiff is always entitled to it to obtain a satisfaction of his claim, unless his right has been suspended by proceedings in the nature of an appeal or by his own agreement.

In the case of Standard Chartered Bank v Nelson [1998-99] SCGLR 810 , the Supreme Court similarly characterised the writ of execution as:

a direction to the sheriff by the execution-creditor to compel a defendant against whom a judgment, decree or order has been obtained from a court of competent jurisdiction “compelling the defendant to do or to pay what has been adjudged.

B. Types or Forms of Writs of Execution:

i. Writ of Fieri Facias (Fi Fa): This is a writ that allows for the seizure and sale of the property of the judgement debtor (losing party) to satisfy the judgment debt. Black’s Law Dictionary defines it as “a writ of execution that directs a marshal or sheriff to seize and sell a defendant's property to satisfy a money judgment”

ii. Writ of Possession: This is a writ that allows a party to regain possession of immovable property. It often involves another party giving up possession of the same property.

iii. Writ of Delivery: This is a writ used to order the return of movable property to the winning party.

iv. Writ of Sequestration: This is a writ directed at persons known as commissioners to enter unto any immovable property belonging to the judgment debtor, take the rents that would have accrued to the judgement debtor, and pay same into court until the debt is fully paid or until the court directs otherwise.

Note that the above writs are for orders that are executable. An order is said to be executable if it orders a party to do or refrain from doing an act. For example, an order of specific performance is executable because it requires the losing party to do a particular act, such as convey land to the winning party. An order is not executable if it is merely declaratory. For example, most declaratory judgements are not executable. For instance, a declaration that simply states the rights or obligations of a party without ordering any specific action is non-executable.

C. Other Means of Executing Judgment Other Than Writs of Execution:

i. Garnishee Proceedings: Here, the court directs that a third party (known as the garnishee) that owes the judgement debtor should pay the monies owed to the judgement creditor (the winning party)

ii. Committal for Contempt: If the court orders a person to do an act or refrain from doing an act within a specified time, and the person refuses or neglects to do it within that time or does an act he is required to refrain from doing, the court may, among orders, enforce the order by making an order of committal for contempt.

iii. Charging Orders and Stop Orders: Order 50 allows the court to impose a charge over the immovable property of the judgement debtor as a way of enforcing a judgement or an order. A charge is an encumbrance, lien, or claim over property. By the imposition of this, the debtor cannot sell or transfer the property without first settling the debt. Further, if the debtor fails to pay, the creditor can apply for the sale fo the property to recover the amount due.

D. When Leave Must be Sought before a Writ of Execution can be Issued:

Order 44 Rule 3 provides that leave of the court must be sought before a writ of execution to enforce a judgment can be issued:

i. Time Lapse of Six Years: Where six years or more have elapsed since the date of the judgment or order: For instance, if the judgement that is being enforced was delivered in 2016, and you want to enforce the judgement in 2025, which is more than six years after the judgement, the judgement creditor would have to obtain leave of the court before issuing a writ of execution.

ii. Change in Parties: Where any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order: For instance, if after the judgment is given, and the winning party or losing party dies, the party seeking to enforce the judgement must seek leave of the court.

iii. Carrying Out Execution Against Estate of Deceased Person: Where the judgment or order is against the assets of a deceased person coming into the hands of his or her executors or administrators after the date of the judgment or order, and it is sought to issue execution against the assets, leave of the court must be sought before issuing the writ of execution can be issued.

iv. Reliefs Subject to Fulfilment of a Condition:Sometimes, the winning party may be entitled to his relief only after himself fulfilling certain conditions. In such cases, the winning party who alleges that he has fulfilled those conditions must seek leave of the court before the writ of execution can be issued. This allows the court to satisfy itself of the fulfilment of the condition.

v. Goods in Hands of a Receiver or Sequestrator:where any goods to be seized under a writ of execution are in the hands of a receiver appointed by the Court or a sequestrator.

vi. Writs of Execution in Aid of Other Writ Execution:In Order 44 Rule 4, it is provided that “A writ of execution in aid of any other writ of execution shall not issue without leave of the Court.” For instance, if a writ of Fieri Facias (Fi Fa) has already being issued, and the winning party wants another writ of execution to enable him fully recover the judgment debt, he must seek leave before the issue of that other writ of execution.

In any of the above cases, an application for leave to issue writ must be made. The mode of making this application is governed by Order 44 Rule 5 . Summarily, it provides that:

1. The application may be made ex parte

2. The application must be supported by an affidavit that contain the following:

i. A statement identifying the judgment or order to which the application relates. If the judgement or order is for payment of money, there should be a statement of the amount originally due and the amount due at the date of the application.

ii. [When the Leave is Sought Due to Time Lapse of Six Years] if the winning party has failed to enforce the judgment after six years, he must state the reasons for the delay.

iii. [Where there is a Change in the Parties] if there is a change in the parties, either by death or otherwise, a statement of the nature of the change that has taken place.

iv. [Where the Execution is Against the Estate]If the enforcement is against the estate of the deceased, there should be a statement that a demand was made to the person liable to satisfy the judgment, but the person has failed or refused to do so.

v. The affidavit must contain any other information necessary to satisfy the court that the applicant is entitled to proceed to execution on the judgment.

If the court grants leave for the issue of the writ of execution, the person seeking the execution has one year to cause the writ to be issued. If he fails, he must seek new leave per Order 44 Rule 3(2) .

E. Effect of Writ of Execution:

In Order 44 Rule 2(1), it is provided that:

A writ of execution may be put into effect in any part of the country.

In Order 44 Rule 2(3), it is further provided that:

The immovable property of a judgment debtor shall not be levied in execution if the judgment debtor shows that the judgment debtor has sufficient movable property within the jurisdiction to satisfy the judgment or order and costs.

Thus, if the losing party (judgement debtor) has sufficient movable property that can be used in satisfying the court’s orders, and is able to show this, his immovable property (land) cannot be used in satisfying the court’s orders. If the immovable property of the losing party is what is being used, Order 44 Rule 2(3) requires that the writ of execution be endorsed with a statement that there was not sufficient movable property to satisfy the judgment debt.

Finally, in executing a writ of execution, it is not only the property that is in the possession of the judgement debtor that can be attached, as Order 44 Rule 2(5) provides that:

Subject to subrule (3) all property movable or immovable, belonging to the judgment debtor, and whether held in the judgment debtor's name or by another person in trust for the judgment debtor or on the judgment debtor's behalf, is liable to attachment and sale in execution of the judgment or order

F. Duration and Renewal of Writ of Execution:

Per Order 44 Rule 9(1), a writ of execution shall be valid in the first instance for twelve months from the date of issue.

In Rule 9(2), it is further provided that the court may extend the validity of the writ of execution from time to time for a period of twelve months at any time.

Conclusion:

This note is only introductory. In subsequent notes, we will discuss the forms of writ of execution, application for stay of execution, enforcement of judgement against the state and foreign judgements.