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Civil Procedure Assignment 2023
Civil Procedure (SLL 001)
Fourah Bay College
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The court determines issues or questions by giving judgements or orders. However, these judgements and orders are just pieces of paper; in order for the relief or remedy prayed for to be enjoyed, the judgement debtor must comply with the judgement or order. If he fails to do so, the judgement creditor may enforce the judgement or order against the judgement debtor in any of several ways, depending on the type of judgement or order. The remedies are not alternative, but cumulative; the judgement creditor may employ more than one at the same time or one after the other. Enforcement is executed by the sheriff. In practice, the office of the undersheriff is responsible for executing the enforcement of judgements and orders. It is headed by the undersheriff, whose officers are called bailiffs.
The different means by which one can enforce a judgement or court order could be discussed in the subsequent paragraphs that follows.
The distinction between a judgement and an order is that a judgement is the final decision of the court in relation to a claim whilst an order is any decision other than a judgement.
Pursuant to Order 43 of the High Court Rules of 2007 especially Rule 2, it spells out categorically the forms which a judgement or an order should look it. For a judgement and an order, the form for the entry of judgement is prescribed as far as practicable be in that form.
The party who enters any judgement may recite it in a statement of manner in which the writ of summon was served. The order shall be marked with the name of the judge by whom it was made and shall be sealed with the seal of the court.
Time starts to run from the date of service of the judgement or order. For such judgement or order to be enforced, the master shall indicate on them the date and time of receipt of the documents and judgement shall take effect from that date. This is pursuant to Order 43 Rule 5(2) of the High Court Rules 2007.
Order 43 Rule 10(2) makes provision for a judgement to be registered in accordance with the order giving leave to register it. The register of judgement is kept in the Master’s office by or under the direction of the Master.
Some judgement maybe be given based on an agreement between the parties to settle the matter. Such judgement is as enforceable as judgement given in determination of the matter by a judge or tribunal. Order 43 Rule 9 is explicit on that.
Under Order 46 Rule 1(1) a judgement or an order for the payment of money from a judgement debtor to a judgement creditor may be enforced by the following means
i. Writ of fieri facias; ii. Garnishee proceedings; iii. Appointment of a receiver; iv. An order for committal; v. Writ of sequestration
Generally, a judgement or order for the payment of money will not specify the time in which it should be complied with, and so an order of committal or a writ of sequestration will not initially be available. If the judgement creditor wishes to apply for an order of committal or a writ of sequestration against the judgement debtor, he must first apply to the court pursuant to Order 46 Rule 6 for a time to be limited for compliance. It is noteworthy that a judgement or an order for the recovery of money may be enforced by a writ of fieri facias; garnishee proceedings or appointment of a receiver. However, it cannot be enforced by an order of committal or a writ of sequestration pursuant to Order 46 Rule 13(1) of the High Court Rules 2007.
Judgement for the payment of money into court can be enforced under Order 46 Rule 1(2). It could be enforced by appointing a receiver, an order of committal or a writ of sequestration.
company, against any officer of the company. However, if the judgement or order does not specify the time within which the act is to be done, it is merely declaratory not coercive and refusal to comply with it does not amount to contempt punishable by an order or committal or writ of sequestration. An authority for this is the case of WEBSTER V SOUTHWARK LONDON BOROUGH COUNCIL (1983).
Before the plaintiff is entitled to enforce, a copy of the judgement or order must have been served personally on the defendant and if he does the same act, it must have been served before the expiration of the time limited for him to do so pursuant to Order 46 Rule 7(2)(b). if the defendant is a company, the judgement or order must be served personally on the officer, and if the company is required to so some act, it must be served before the expiration of the time limited for him to do so pursuant to Order 46 Rule 7(3)(b).
A copy of the judgement or order must be endorsed on its face with a penal notice specifying that disobedience would be a contempt of court punishable by committal or sequestration pursuant to Order 46 Rule 7(4).
A WRIT OF FIERI FACIAS
A writ if fieri facias is used to enforce a judgement or order for the payment of money to the judgement creditor pursuant to Order 46 Rule 1(1)(a) and Order 48 Rule 1(1) or for the recovery of money to him pursuant to Order 46 Rule 13(1). The judgement creditor does not obtain leave of the court to issue a writ if fieri facias unless it falls under Order 47 Rule 2(1) (a-e) of the High Court Rules, 2007.
Execution of a writ of fieri facias under Order 48 Rule 1(2), can be by seizure and sale of the judgement debtor’s property.
A writ of fieri facias must be in the form contained in volume 2 of the annual practice (White Book) at paragraph 1A 54-62 with necessary modifications under Order 46 Rule 12(1) of the High Court Rules 2007.
Pursuant to Order 47 Rule 6(2), before the writ is issued, a pracecipe for its issue should be filed. The pracecipe must be signed by the solicitor of the judgement creditor or himself (Order 46 Rule 6(3)). Pursuant to Order 47 Rules 6(4)(a), before it I issued, the judgement creditor must produce the judgement or order which is to be enforced or a copy of it or if leave is required, the order granting such leave; and an officer sealing it must be satisfied that the time limited, if any, for the payment of the money has expired (Order 47 Rule 6(4)(b). The writ is then issued by being sealed by the officer of the registry. It should also bear the date of issue (Order 47 Rule 6(5).
Akin to concurrent writ of summonses, the judgement creditor may issue several writs of fieri facias pursuant to Order 48 Rule 2(1) in different registries to enforce the judgement. For reference purposes, let’s say the judgement debtor has properties in Freetown & Kono, but separately their value will not be able enough to satisfy the judgement debt, the judgement creditor may issue 1 writ of fieri facias at the registry in Freetown and another at Kono. Pursuant to Order 48 Rule 2(2), where several writs of fieri facias are issued in different registries, the judgement creditor should inform each registrar on that fact.
A writ of fieri facias is valid in the first instance for a period of twelve months from the date of issue pursuant to Order 47 Rule 7(1). Under Order 47(3), after the extension of its validity the writ is sealed with a seal of the office out of which it was issued. But instead of bearing the date of the original issue, it will bear the date on which the order for extension of its validity was made. If it does not contain the date of order for extension, the judgement creditor should serve notice to the undersheriff informing him that an order of extension was made, and the date it was made. Producing the original writ under Order 47 Rule 7(5) or the notice to the undersheriff will be evidence that the writ’s validity has been extended.
Under Order 48 Rule 4(1)(e), if the writ of fieri facias is in respect of real property, or an interest in real property, an order should, an Order 48 Rule 4(2) be prepared and signed by the Master and Registrar prohibiting the judgement debtor from conveying the property or his interest in it and prohibiting all persons from receiving any conveyance of the same. A copy of the order, certified by the Master and Registrar should be served on the judgment debtor pursuant to Order 48 Rule 5(3).
Before the property is sold however, the execution debtor may pay into court an amount sufficient to cover the judgement debt, together with any interest, costs and the costs of the execution, the court will issue an order for the attachment to be withdrawn, and a stay of execution effected pursuant to Order 48 Rule 11(2).
If there has been any material irregularity in the conduct of the sale, and the execution debtor proves that he has hereby suffered substantial injury, he may make an application to the court within 21 days of the sale to set it aside pursuant to Order 48 Rule 10(1). If the application is granted, the sale will be set aside and the purchaser will receive his money back, with or without interest, to be paid by such parties and in such manner as the court may direct pursuant to Order 48 Rule 10(2).
GARNISHEE PROCEEDINGS
Garnishee proceedings are one of the most effective methods of enforcing a judgement or order for the payment or recovery of money. They are relatively cheap and easy to carry on. Enforcing by means of a writ of fieri facias, for instance, may be inconvenient because of the costs of the bailiffs and the police officers. With Garnishee proceedings, you are not required to go through these officials. Most commonly, the garnishee would be a bank. Sometimes it may be akin to a fishing expedition; the judgement creditor can bring in all the banks at which he thinks the judgement debtor may hold an account.
The court may order the garnishee to pay the garnishor the amount of any debt dur or accruing due to the judgement debtor from the garnishee, or so much of it as will be sufficient to satisfy the judgement debt and the costs of the garnishee proceedings.
The requirement for granting of a garnishee order absolute were summarized in the case of NENNEH LLEMMOH v SIERRA LEONE POSTAL SERVICES AND COMMISSION FOR PRIVATIZATION (GARNISHEE) by Justice E. Roberts as: (a). that the judgement debtor could sue and recover the debt from the garnishee; (b). the debt should be owed and accruing; and (c) that it was fair, just and reasonable having regard to the facts and circumstances of the case.
Pursuant to Order 50 Rule 1, there are two important conditions precedent. Firstly, the debt must be due, that is to say the time for payment must have arrived as was in the case of DUNLOP & RANKEN LTD v STEEL STRUCTURES LTD, PITCHERS LTD. Secondly, the garnishee must be within the jurisdiction as was in RICHARDSON v RICHARDSON. In Sierra Leone, the courts do not have extra-judicial jurisdiction, therefore if the garnishee is out of the jurisdiction, the court will not have power to compel him, either to appear or to pay the debt. Temporary physical presence within the jurisdiction at the time the order nisi was made may be sufficient.
An application for garnishee proceedings is made pursuant to Order 50 Rule 2. The judgement creditor may make an ex parte application supported by affidavit to the court for a garnishee order nisi. The affidavit should state the name and last known address of the judgement debtor, identify the judgement or order which is sought to be enforced, state the amount of the money which remains to be paid or recovered under the judgement or order, state that to the best of the information or belief of the deponent the garnishee is within the jurisdiction and is indebted to the judgement debtor.
ORDER NISI
Once the bank complies with the order absolute and pays the money to the garnishor, that money serves as a valid discharge of its liability to the judgement debtor to the extent of the amount paid. This is regardless of whether the garnishee proceedings are subsequently set aside, or the judgement or order which was sought to be enforced is reserved pursuant to Order 50 Rule 8.
SETTING ASIDE
A garnishee order absolute may be set aside it the court sees it fit as was in the case of O’BRIEN v KILLEEN.
There are times in which the court owes the judgement debtor money. For instance, where the judgement debtor has obtained judgement in respect of some other matter and the amount due under that judgement was paid into court. If that is the case, the judgement creditor should not apply for garnishee proceedings but instead he may apply to the court under Order 50 Rule 9(1) by Judge’s summons for an order that the money in court be paid to him.
After issuing the summons under Order 50 Rule 9(2), the judgement creditor should produce the summons at the Master’s office and leave a copy there. The summons should then serve on the judgement debtor at least seven (7) days before the return date, except if the court directs otherwise pursuant to Order 50 Rule 9(4).
The money in court is only paid after the judgement creditor’s application has been heard and the court has made an order as it deems fit pursuant to Order 50 Rule 9(5).
However, if the application is dismissed, the judgement creditor should give notice of that to the Master in conformity with Order 50 Rule 9(3).
Civil Procedure Assignment 2023
Course: Civil Procedure (SLL 001)
University: Fourah Bay College
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