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June 11, 1980
HIGH COURT
GHANA
CORAM
JUDGMENT OF CECILIA KORANTENG-ADDOW J.
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 [p.812] 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.
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:
“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.”
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
AI Generated Summary
In this post-judgment application, the defendant-applicants sought a stay of execution and permission to pay the judgment debt by instalments. Cecilia Koranteng-Addow J. noted that the applicants had already paid 230,000 toward the judgment and owed a further 628,286.59, proposing quarterly payments of 30,000 starting in September to liquidate both debts. The respondents did not oppose a stay but rejected the instalment schedule, instead proposing a 100,000 down-payment and monthly 50,000 instalments. Adopting the approach in Taylor J.s decisions in Standard Bank of West Africa Ltd. v. Boaitey and Amo-Mensah v. Owusu, the court held that the High Court lacks jurisdiction to compel a judgment creditor to accept instalments, emphasizing the creditors right to the fruits of judgment. However, the court may incorporate mutually agreed instalment terms under Order 42, rule 40. After counsel indicated acceptance of the respondents terms, the court granted a stay and ordered monthly 50,000 payments commencing at the end of September 1980, with interest continuing and a default clause.