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December 20, 2011
HIGH COURT
GHANA
CORAM
R U L I N G
This ruling is in respect of an application by the defendants herein filed on 26th October, 2011 for an order to stay execution of the Writ of fieri facias pursuant to Order 45, Rule 15 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). I would state the relevant factual circumstances leading to the defendants bringing the instant motion in order to put same in context for clarity of reasoning.
On 12th April, 2010 the plaintiff herein issued a writ from this court claiming reliefs against the defendants as endorsed therein. The defendant on 23rd April, 2010 entered appearance by their solicitors but failed to file their defence within the period stipulated by the rules of Court. The plaintiff on 27th May, 2010 filed a motion for judgment in default of defence. Before the motion could be moved the defendants on 17th June, 2010 filed their statement of defence. As a result on 6th July 2010 this court heard the motion and adopted the defence filed out of time. The Court however awarded cost of GH¢200.00 in favour of the plaintiff and order that the case takes sits normal course.
Subsequently application for directions was taken on 16th December, 2010 and the issues set down for trial. On two occasions namely on 23rd
February, 2011 and 18th March, 2011 when the case came on for hearing it could not be heard as a result of the absence of the defendants and their Counsel. On both occasions the Court awarded cost of GH¢200.00 in favour of the plaintiff bringing the total costs awarded to GH¢600.00 all in favour of the plaintiff.
On 20th July, 2011 the plaintiff filed entry of cost and same was served on the defendants on 26th July, 2011. Then on 4th October, 2011 the plaintiff requested for and obtained a writ of fieri facias to have any movable property of the defendants including vehicles and office equipment attached for auction to defray the said sum of GH¢600.00. It was this recent development which provoked the defendants to file the instant application on 26th October, 2011.
The basis of the defendants’ application can be found in the affidavit in support of their application deposed to by one Victor Brew. The relevant depositions are contained in paragraphs 6 to 8 which I would set out hereunder:
“6 That the Defendant/Applicants have a credible defence to the case made against them by the Plaintiff/Respondent.
7 That it will be easier for the Plaintiff/Respondent to recover cost from the Defendants/Applicants in the event that
AI Generated Summary
Justice Uuter Paul Dery of the High Court ruled on the defendants’ application to stay execution of a writ of fieri facias issued to enforce GH¢600.00 in costs against them. The costs arose after the court adopted the defendants’ late defence and when hearings on 23 February and 18 March 2011 were adjourned due to the defendants’ and counsel’s absence. Following entry of costs (served on 26 July 2011), the plaintiff obtained fi fa on 4 October 2011 to attach the defendants’ movable property. The defendants’ motion, supported by an affidavit by Victor Brew, claimed a credible defence, that the defendants are a traceable institution, and that tracing the plaintiff to recover costs would be difficult if they succeeded. Applying Order 45 Rule 15(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), the court found no special circumstances or inability to pay, held that costs may be enforced immediately under Order 74 Rule 11(1), deemed the address objection an irregularity barred by Order 81 Rule 2(2), and dismissed the application.