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ORDER 23
WRIT OF FIERI FACIAS
Nature of
writ of
fieri facias
1. (1
) A judgment or order for the payment of
money may be enforced by a writ of fieri
facias (fifa)
(2) Where a
writ of fifa is issued it shall be
executed by the seizure and sale of the
debtor's property sufficient to satisfy
(a)
the amount of the judgment debt,
(b)
post-judgment interest at the appropriate
rate until payment, and
(c)
the costs of the execution.
Two
or more writ of fieri facias
2. (1) A
party entitled to enforce a judgment or
order by writ of fifa may issue two
or more of these writs, directed to
different Registrars, at either the same
time or different times, to enforce that
judgment or order but the cost of execution
of those writs taken together shall not
exceed the cost of execution, if the
judgment or order were levied under one
writ.
(2) Where a
party issues two or more writs of
fifa
directed to different
Registrars to enforce the same judgment or
order, that party shall inform each
Registrar of the issue of the other writ or
writs.
Separate
writ to enforce payment of
costs
3. (1) A
party entitled to enforce a judgment or
order for the payment of money, together
with costs may issue
(a)
one writ of
fifa
to enforce payment of the sum
other than costs adjudged or ordered, and
(b)
another
writ of fi fa to enforce payment
of the costs.
(2) A party
entitled to enforce a judgment or order for
the delivery of possession of property other
than money may issue a writ of
fifa
to enforce
payment of damages or costs awarded to that
party by that judgment or order.
Methods of
putting writ into effect
4.
(1) Subject to the other provisions of this
Order and to the provisions of any other
relevant enactment, a writ of fifa
shall be enforced as regards
(a) movable property in the possession
of the judgment debtor, by actual seizure,
with the . .. .
property being kept in the custody of the
Registrar until sale;
(b)
money or
negotiable instrument, by actual seizure
with the money or instrument being deposited
in court by the Registrar and held subject
to the further order of the Court;
(c)
movable
property which the judgment debtor is
entitled to subject to a lien or right of
some other person to the immediate
possession of the property, by delivering to
the person in possession a written order
which prohibits the person in possession
from giving over the property to the
judgment debtor;
(d)
shares in a body corporate, by a written
order which prohibits
(i) the
person in whose name the shares are held
from making any transfer of the shares or
receiving payment of dividends on the
shares, and
(ii) the manager, secretary or other proper
officer of the body corporate from making a
payment of ,..
dividends until further order is issued by
the Court;
(e)
immovable property or interest in
immovable property, whether at law or in
equity, by a written .
order which prohibits
(i) the
judgment debtor from alienating the property
or any interest in the property by sale,
gift or in any other way, and
(ii) any
person from receiving the property or
interest in that property by purchase, gift
or otherwise; and the Registrar may also, by
direction of the Court, take and retain
actual possession of the property.
(2) The
orders referred to in subrule (1) (c),
(d) and (e) shall be signed by
the Registrar.
(3) Subject
to any other relevant enactment, property in
the custody or under the control of a public
officer in that officer's official capacity
is liable to attachment in execution of a
judgment or order after notice has been
given to the Attorney-General, and the order
of attachment shall be served on that public
officer.
(4) Property
in the custody of the Court is liable to
attachment by leave of the Court, and the
order of attachment shall be served on the
Registrar.
Service
of prohibitory orders
5.
(1) In
the case of movable property which is not in
the possession of the judgment debtor, a
certified copy of the order referred to in
rule 4(1) (c) shall be delivered to the
person in possession of the property.
(2) In the
case of shares in any body corporate, a
certified copy of the order referred to in
rule 4(1) (d) shall be delivered to
or served on the manager, secretary or other
proper officer of that body corporate.
(3) In the
case of immovable property or any interest
in it, a copy of the order referred to in
rule 4 (1) (e), certified by the
Registrar shall,
(a) be delivered to the judgment debtor,
(b)
if the
judgment debtor, cannot be found, be
delivered to some adult person at the
judgment debtor's last known place of abode
or business to be given to the judgment
debtor, or
(c)
if delivery
cannot be made, be affixed
(i) to a
front door of the court building from which
the writ of fifa issued, and
(ii) to the
door of the District Court nearest the
immovable property which is the subject of
the writ, if that District Court is not the
Court from which the writ . issued.
(4) A
similar copy of the order referred to in
rule 4 (1) (e) shall in every case be
posted on or affixed to some conspicuous
part of the immovable property in
question.
Unauthorised alienation during attachment.
.
6.
After an
attachment has been made by actual seizure,
or by written order duly delivered, served
or posted in accordance with rule 5,
(a)
an
alienation without leave of the Court of the
property attached. whether by sale, gift or
otherwise , and
(b)
any payment of
the debt, dividends, or shares to the judgment
debtor during the continuance of the attachment,
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is void, and the
person who makes the alienation or payment is
liable to committal for contempt of court.
Payment of money
and proceeds of sale
7. The Court may
at any time during an attachment under this
Order, direct that part of the property attached
that
(a)
consists of money, be paid over to the party who
has applied for execution of the judgment, or
(b)
does not consist of money, should as far as is
necessary for the satisfaction of the judgment,
be sold, and the money realized from the sale,
or a sufficient part of it be paid to the party
who has applied for execution of the judgment.
Sales in
execution of judgments
8 ..
(1) Sales in execution of judgments shall be
(a)
made under the direction of the Registrar,
(b)
conducted according to any orders, that the
Court may make on the application of the party
concerned.
(2) The sales
shall be made by public auction in accordance
with the Auction Sales Law, 1989 (P.N.D.C.L.
230), unless the Court authorises the sale to be
made in any other manner.
(3) An order
relating to the sale may be made at the time of
issuing a writ of fifa or afterwards.
Periods of
notice of sale
9.
(1) Subject to
subrule (2) a sale shall not be made until
(a)
in the case of movable property, at least seven
days notice of the sale, or
(b)
in the case of immovable property, at least
twenty-one days notice,
has been given
to the public, unless the judgment debtor in
writing consents otherwise.
(2) Despite any
notices which are published elsewhere, a notice
shall be published in the town or place where
the property to be sold is situated, and if the
sale is to take place in any other town or place
the notice shall also be published, in the town
or at the place of sale.
Setting
aside sale for irregularity
10.
(1) At any
time within twenty-one days from the date of the
sale of any immovable property, an application
may be made to the Court to set aside the sale
on the ground of material irregularity in the
conduct of the sale, but a sale shall not be set
aside on the ground of irregularity unless the
applicant proves to the satisfaction of the
Court that the applicant has sustained
substantial injury because of that irregularity.
(2) If the
application is granted by the Court, the Court
shall make an order to set aside the sale for
irregularity, and the purchaser shall be
entitled to receive back any money deposited or
paid by the purchaser on account of the sale,
with or without interest, to be paid by the
parties and in the manner directed by the Court.
When sale
becomes absolute
11.
(1) If an
application is not made under rule 10, the sale
shall become absolute.
(2) If an
application made under rule 10 is dismissed, the
Court shall make an order confirming the sale.
(3) After a sale
of immovable property becomes absolute or is
confirmed under this rule, the Court shall grant
a certificate as set out in Form 15 of
the First Schedule to the person who is
declared the purchaser at the sale, to the
effect that that person has purchased the right,
title and interest of the judgment debtor in the
property sold.
(4) A
certificate of purchase granted under subrule
(3) is a valid transfer of the right, title and
interest of the judgment debtor in the property
sold and shall be deemed to be a conveyance of
the property to the purchaser.
Delivery of
property sold
12.
(1) Where the property sold consists of
movable property,
(a)
in the possession of the judgment debtor or
of which the judgment debtor is entitled to
the immediate possession, and
(b)
of which actual seizure has been made,
the
property shall be delivered to the
purchaser.
(2) Where
the property sold consists of movable
property to which the judgment debtor is
entitled subject to a lien or right of any
other person to the immediate possession of
the property, delivery to the purchaser
shall, as far as practicable, be made by the
Registrar giving notice to the person in
immediate possession which prohibits that
person in immediate possession from
delivering possession of the property to any
person except the purchaser of the property.
(3) If the property sold consists of immovable
property in the possession of
(a)
the judgment
debtor,
(b)
some other
person on behalf of the judgment debtor,
(c)
some other
person claiming under a title created by the
judgment debtor after the attachment of the
property,
the Court
shall, on the application of the purchaser,
order delivery to be made by putting the
purchaser, or any person whom the purchaser may
appoint to receive delivery on the purchaser's
behalf, in possession of the property and if
need be, by removing any person who refuses to
vacate the property.
(4) If the property sold consists of immovable
property in the occupation of a person entitled
to occupy it, the Court shall, on the
application of the purchaser, order delivery of
it to be made by affixing a copy of the
certificate of purchase in some conspicuous
place on the immovable property and on the
Court building.
(5) If the
property sold consists of shares in a body
corporate, the Court shall, on the application
of the purchaser, make an order which prohibits
(a)
the person in
whose name the shares are held from
(i) making any transfer of the shares to any
other person except the purchaser, and
(ii) receiving
payment of any dividends on the shares, and
(b) the manager, secretary or other proper
officer of the body corporate from permitting
any transfer or payment to be made to any person
other than the purchaser.
(6) If the property sold consists of negotiable
securities of which actual seizure has been
made, they shall be delivered to the purchaser.
Transfer of
securities or shares
13. (l) If the
endorsement, transfer or conveyance of the party
(a)
in whose name any negotiable security or a share
in a body corporate stands, or
(b)
in whom a
mortgage or equity of redemption is vested
is required to
transfer the security, mortgage or equity, the
Registrar may endorse the security or share
certificate or may execute any other document
necessary for the transfer of the property.
(2) The
endorsement or execution shall be in the
following form, or to the like effect:
A.B. by CD.,
Registrar of the District Court in the Y
Region of Ghana; in an action by E.F.
versus: A.B.
(3) Until
the transfer of a security or a share, the
Court may by order appoint some other person
to receive interest or dividend due or the
security or share and to sign receipts for
the interest or dividend.
(4) An
endorsement made, or a document executed, or
receipt signed by the Registrar or another
person appointed by the Court is binding on
the judgment debtor or the party entitled to
the security or share.
Withdrawal on satisfaction of judgment
14.
(1) If the amount adjudged, with costs,
charges and expense incurred by the
attachment, is paid into Court or if the
judgment or order is otherwise satisfied,
vacated or set aside, an order shall be
issued for tt withdrawal of the attachment.
(2) If the
execution debtor deposits in court a sum
sufficient· cover the expenses, an order
shall be issued for the withdrawal of the
attachment, and the necessary steps shall be
taken to stay further proceeding in
execution of the judgment or order.
Power to
stay execution by writ of
fieri facias
15.
(1) Where a judgment is given or an order is
made for the payment of money by a person
and on an application made at the time of 1
judgment or order or at anytime after the
judgment or order by . judgment debtor or
other party liable to execution the Court is
satisfied that
(a)
there are
special circumstances which render it
inexpedient to enforce the judgment or
order; or
(b)
the applicant is unable from any just cause
to pay the mo then, despite anything in rule
2 or 3, the Court may by order stay
execution of the judgment or order by writ
of fifa either absolutely 0 a period
and subject to conditions that the Court
considers appropriate
(2) Where an
application made under subrule 1 is not made
a time the judgment is given or the order is
made, .
(a)
the
application shall be supported by an
affidavit ma( or on behalf of the applicant
stating the grounds c application and the
evidence necessary to substantiate grounds,
and
(b)
notice of
the application and a copy of the supporting
affidavit shall be served on the party
entitled to enforce the judgment or order
within a period of not less than four clear
days before the day named in the notice for
hearing of the application.
(3) Where
the application is made on the ground of the
applicant's inability to pay, the affidavit
shall disclose the applicant's income, the
nature and value of any property of the
applicant and the amount of any other
liabilities of the applicant.
(4) An order
that stays execution under this rule may be
varied or revoked by a subsequent order.
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