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DISTRICT COURT (CIVIL PROCEDURE) RULES, 2004

 

      Rule        

 

                                                                      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, -

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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