LAW TIP
Rules of court are essential; they function as the lubricant that keeps the judicial system running smoothly and ensure effective justice.
Non-compliance of rules of court undermines justice, especially when it affects jurisdiction, causes unfairness to a party, occasions injury, injustice or overreaches the other
QUOTE FROM JUDGEMENT
“In a judgment of this Court dated 13th April 2022, in Writ No.: J1/11/2022 entitled Micheal Ankomah Nimfah vrs. James Gyakye Quayson which I had the privilege of authoring, this Court reasoned as follows:
“The rules of court serve as a lubricant. They lubricate the wheels on which the substantive jurisdiction of the Courts ride. They are to grease the machinery of the law for effective justice.”
LAW TIP
Outright avoidance or non-compliance of the rules of court and an endorsement of such blatant disregard of these rules undermines the ends of justice. This is more so when such non-compliance with rules of procedure goes to jurisdiction, occasions injury, injustice or the overreaching of one party by another.
QUOTE FROM JUDGEMENT
“It is for these reasons that we are of the opinion that the Trial Court exceeded its jurisdiction in seeking to give judicial blessing to the enforcement of a payment of money pursuant to a garnishee order absolute even though the judgment creditor had not filed and served an entry of judgment for the sum due.” THE REPUBLIC v HIGH COURT (CRIMINAL DIVISION 9), ACCRA, EX-PARTE: ECOBANK GHANA LIMITED; ORIGIN 8 LIMITED & GREATER ACCRA PASSENGER TRANSPORT EXECUTIVE – CIVIL MOTION NO. J5/62/2023 (27TH JUNE, 2023)
LAW TIP
Lower courts must follow Supreme Court precedent and any decision that departs from this is unconstitutional and void. REP v HIGH COURT, EX-PARTE: ECOBANK GHANA LTD (ORIGIN 8 LIMITED & ANOR)(J5/62/2023) (27/6/2023)
QUOTE FROM JUDGEMENT
“In any event, the High Court is duty bound to follow the maxim stare decisis et non quieta movere which is a duty to adhere to what has already been decided and not to unsettle established principles. The High Court is bound by the judicial precedent set by the Court of Appeal and the Supreme Court in that hierarchical order. Judicial precedent enables a lower court to make use of instruments of analogy and reasoning of higher courts. The law laid down as ratio decidendi by this Court is binding on all courts and tribunals. No lower court is given a judicial or legislative fiat to disregard decisions of higher Courts in the judicial hierarchy, and more so, this apex Court. As a matter of fact, the duty to all Courts in Ghana to follow and apply decisions of this Court is not only a rule of common law by way of judicial precedent but also, a Constitutional obligation entrenched in Article 129 (3) of the Constitution. The said article 129 (3) states that: “…all other courts shall be bound to follow the decisions of the Supreme Court on questions of Law”. The High Court in ruling that execution can be levied against a garnishee without the filing of an entry of judgment failed to follow the binding decisions of this Court, particularly the Duodo Amoo case supra wherein this Court held that the filing of entry of judgment is a sine qua non to the execution of any judgment. The resultant decision is therefore unconstitutional, null, void and of no legal effect.”
THE REPUBLIC v HIGH COURT (CRIMINAL DIVISION 9), ACCRA, EX-PARTE: ECOBANK GHANA LIMITED; ORIGIN 8 LIMITED & GREATER ACCRA PASSENGER TRANSPORT EXECUTIVE- CIVIL MOTION NO. J5/62/2023 (27TH JUNE, 2023)
LAW TIP
The Court can make an order absolute against a Garnishee who fails to appear/dispute the debt, and once made, that order is enforceable just like any monetary judgment. REP v HIGH COURT, EX-PARTE: ECOBANK GHANA LTD (ORIGIN 8 LIMITED & ANOR)(J5/62/2023) (27/6/2023)
QUOTE FROM JUDGEMENT
“From the reading of Order 47 rule 4(2) of C.I 47, the relevant provision, it is apparent that the Court may make an order absolute against a Garnishee who does not attend Court or disputes the debt claimed from the Garnishee in satisfaction of the judgment debt. Order 47 r 4(2) is clear and unambiguous: such orders made absolute are enforceable as one would enforce an order for the payment of money. Thus, Order 47r 4(2) being an express, clear, unambiguous provision, needs no interpretation.” THE REPUBLIC v HIGH COURT (CRIMINAL DIVISION 9), ACCRA, EX-PARTE: ECOBANK GHANA LIMITED; ORIGIN 8 LIMITED & GREATER ACCRA PASSENGER TRANSPORT EXECUTIVE- CIVIL MOTION NO. J5/62/2023 (27TH JUNE, 2023)
LAW TIP
Execution processes (for circuit court and above) begin only after an entry of judgment or order is filed and served on the judgment debtor.
Entry of judgment specifies the exact operative orders of the court to be carried out by the judgment debtor unlike the judgment itself which includes facts, reasoning, or analysis.
QUOTE FROM JUDGEMENT
“For emphasis, we state that it is the entry of the judgment or order that commences the execution processes. Therefore, one cannot sidestep the filing of an entry of judgment or order in the execution process. The entry of judgment sets out in specific terms the orders of the Court to be performed by the judgment debtor. Unlike the actual judgment of a court, entry of judgment does not contain the facts, reasoning and the analysis of a court. It sets out the specific orders to be performed pursuant to the judgment and serves as the barometer by which the execution ought to be measured. It is for this reason that an entry of judgment which does not reflect the terms or orders contained in the judgment to be performed, may be set aside by the Court. Order 41 of CI 47 provides for how the entry ought to be drawn and the specific form that is used in filing the entry of judgment or order.” THE REPUBLIC v HIGH COURT (CRIMINAL DIVISION 9), ACCRA, EX-PARTE: ECOBANK GHANA LIMITED; ORIGIN 8 LIMITED & GREATER ACCRA PASSENGER TRANSPORT EXECUTIVE- CIVIL MOTION NO. J5/62/2023 (27TH JUNE, 2023)
LAW TIP
Filing and serving entry of judgment is mandatory because it gives the judgment debtor notice of impending execution, which may encourage voluntary compliance.
Filing and serving entry of judgment is mandatory because it allows the judgment debtor (or garnishee) to raise objections to the entry or terms of the order and to take lawful steps in response.
Failing to file and serve entry of judgment on judgment debtor renders all subsequent execution processes void as it cannot be remedied under Order 81 of C.I. 47.
QUOTE FROM JUDGEMENT
“There are good policy reasons for the mandatory filing and service of an entry of judgment on a judgment debtor. It serves as a notice of impending execution which may often be unpleasant and thus motivate voluntary performance. Further, it also enables the judgment debtor to raise any objections it may have to the entry of judgment and/or the specific terms of the judgment or order sought to be enforced. In the instant case, the Applicant was entitled to have the orders for garnishee absolute entered and served on it. This would have provided them the appropriate notice under the rules to pay up the debt or any money that may be due it to the original judgment debtor, or show up to explain that it neither knows the judgment debtor nor has any money due the judgment debtor from it. Similarly, the garnishee, upon service of the entry of judgment may take such other action as the law permits. In the premises, we are of the considered opinion that the 1st Interested Party having failed to file and serve an entry of judgment on the Applicant herein, all subsequent execution processes filed in disregard of the clear terms of Order 47 rule 4(2) are thus null and void. Proceedings taken in disregard of the rules are null and void, save those that are curable under Order 81 of the C.I 47. This however is not one of such processes that are curable under the rules of Court. This procedural misstep is akin to filing of an application for injunction when there is no substantive writ filed before the Court. THE REPUBLIC v HIGH COURT (CRIMINAL DIVISION 9), ACCRA, EX-PARTE: ECOBANK GHANA LIMITED; ORIGIN 8 LIMITED & GREATER ACCRA PASSENGER TRANSPORT EXECUTIVE– CIVIL MOTION NO. J5/62/2023 (27TH JUNE, 2023)
LAW TIP
The first formal step in execution against any judgment debtor in Circuit Court and above is filing and serving of entry of judgment on the judgment creditor. REP v HIGH COURT, EX-PARTE: ECOBANK GHANA LTD (ORIGIN 8 LIMITED & ANOR)(J5/62/2023) (27/6/2023)
QUOTE FROM JUDGEMENT
“In a judgment dated 18th January, 2022 in Civil Appeal No: J4/55/2021 entitled: Ken Asamoah vrs. State Insurance Company, this Court held that: “Entry of judgment under the High Court Civil Procedure Rules, C.1. 47 is the first step in the processes towards the enforcement of the judgment of the court. It is usually prepared and filed by the judgment creditor or his counsel and served personally on the losing party or judgment debtor.”
Similarly, in a judgment dated 13th January, 2011 in Civil Appeal No.: J4/36/2011 entitled Duodu Amoo vrs. Nimako Akowuah, this Court, speaking through Anin Yeboah JSC (as he then was) stated as follows: “In practice, judgment creditors seeking to levy execution file Entry of Judgment and serve same on the judgment-debtor as a prelude to execution. It is a formal notification to the judgment-debtor of the reliefs granted by the court which the judgment-creditor may seek to enforce.” We therefore agree with the Applicant that, regardless of how one becomes a Judgment Debtor, so long as execution is sought against a party, the execution must commence with the entry of the judgment of order sought to be enforced.” THE REPUBLIC v HIGH COURT (CRIMINAL DIVISION 9), ACCRA, EX-PARTE: ECOBANK GHANA LIMITED; ORIGIN 8 LIMITED & GREATER ACCRA PASSENGER TRANSPORT EXECUTIVE CIVIL MOTION NO. J5/62/2023 (27TH JUNE, 2023)