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KWABENA ODURO OF NSAWAM AND OTHERS
V.
DANIEL FRANCIS DAVIS OF ADEISE
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT ACCRA, GOLD COAST
4TH DAY OF APRIL, 1952
APPEAL NO. 74/50
2PLR/1952/73 (WACA)
OTHER CITATION(S)
2PLR/1952/73 (WACA)
(1952) XIV WACA PP. 46 – 48
LEX (1952) – XIV WACA 46 – 48
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BEFORE THEIR LORDSHIP:
FOSTER-SUTTON, P.J.
COUSSEY, J.A.
ACOLATSE, AG. J.
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BETWEEN:
1. KWABENA ODURO OF NSAWAM
2. ASARE LARTEY, LICENSED AUCTIONEER OF NSAWAM
3. A.H. QUANSAH OF NSAWAM – Appellants
AND
DANIEL FRANCIS DAVIS OF ADEISE – Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court by the defendants
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REPRESENTATION
J. B. Danquah — for Appellants
Akufo Addo — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR LAW:- Execution — Order to pay by instalments — Default — Execution — Civil Procedure Rules, Order 40, Rule 8, and Order 43, rule 6
PRACTICE AND PROCEDURE ISSUE(S)
JUDGMENT AND ORDER:- Damages — Attitude on appeal
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CASE SUMMARY
The above-named appellant No. 1 wait the judgment creditor in a previous case, in which the above-named respondent was the judgment debtor. After judgment in that case the judgment debtor was examined as to his means to pay the judgment debt and then ordered to pay it off by instalments. He paid one but not the second or third, and then the judgment creditor took out a writ of fi. fa. for the entire balance of the judgment debt (viz. the judgment debt minus the one instalment paid); the charging plant of the judgment debtor was seized and sold by the auctioneer to a purchaser (the persons named above as appellants No. 2 and No. 3). The judgment debtor then sued them all to set aside the sale as unlawful and claimed special and general damages besides, and he obtained judgment on both claims; the others appealed arguing (a) that where an order is made for payment of a judgment debt by instalments under Order 40, rule 8, of the Civil Procedure Rules, in default of payment of an instalment, execution can issue for the entire balance of the judgment debt, and, in the alternative, (b) that the damages awarded were excessive.
(Execution under an order for payment by instalments is regulated by Order 43, rule G, the text of which is given in the judgment on appeal infra.)
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CASE SUMMARY
Held (dismissing the Appeal) that:
1. The order for payment by instalments replaced the original decree in the judgment in the previous case: there was no longer a present debt of the amount of the judgment debt but a debt accruing due by so much a month.
2. Execution in default of payments could not issue except under an order of the Court specifying the amount of the instalments then owing in respect of which execution should issue; therefore the execution for the entire balance of the judgment debt was wrongful and the sale unlawful.
3. As for the special damages awarded, the amount thereof was warranted by the evidence: and as regards the amount of the general damages, it could not be said that it was an entirely erroneous estimate calling for correction on appeal.
Case cited:-
(1) Flint v. Lovell, (1035), 1 K.B., at p, 360.
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MAIN JUDGMENT
The following Judgment was delivered:
FOSTER-SUTTON, P.
In this case the plaintiff claimed for an order setting aside the sale of a battery charging plant belonging to him, on the ground that the sale had been effected under a wrongful execution, and for the sum of £140 special and £200 general damages.
The second defendant is a licensed auctioneer who, acting upon the instructions of the Sheriff, sold the charging plant, and the third defendant is the person who purchased the plant at the auction sale.
The circumstances leading up to the seizure and sale of the charging plant, briefly stated, are as follows:
On the 22nd August, 1947, a judgment was obtained by the first defendant against the plaintiff and three other persons for the sum of £330, and £33 6s. 0d. costs.
The judgment debt remained unsatisfied and on the 14th July, 1948, the plaintiff was brought before Jackson, J., under a “Warrant of Arrest”, who examined him respecting his ability to pay the amount owing under the judgment I have already referred to. As a result of that enquiry the plaintiff was ordered to pay the judgment-creditor the first defendant in this case, a sum of 30s. on the 20th day of each month until such time as the judgment debt was fully paid the first payment to be made on the 20th July, 1948. The plaintiff was then released from custody.
The plaintiff paid the first instalment on due date, but no further payment was made by him until after his charging plant had been seized in execution, when he made a payment of £93 10s. 0d. On the 8th October, 1948, the charging plant was seized under a writ of fieri-facias, issued on the 28th September, 1948 for the whole of the amount then owing in respect of the judgment debt. At the date of the issue of the writ two instalments of 30s. each remained unpaid. The plant was sold to the third defendant at a sale held by the second defendant on the 16th October, 1948.
This case was tried by Korsah, J., who delivered judgment for the plaintiff against the defendants, setting aside the sale of the charging plant and awarding him, as against the first defendant, the sum of £140 by way of special damages and £200 general damages. It is against that judgment that the first defendant has appealed.
Appellants’ Counsel argued that the learned trial Judge erred in holding that the seizure of the charging plant was wrongful and its sale, therefore, illegal. It was submitted that where a Court has ordered the payment of a judgment debt by instalments, under the provisions of Order 40, rule 8 of the Civil Procedure Rules, and default in the payment of an instalment is made, execution can issue for the whole of the amount then owing under the original decree. Alternatively, it was submitted that the damages were excessive.
Order 43, rule 6 regulates the procedure regarding the issue of execution when a decree orders payment of money by instalments. For convenience of reference it reads as follows:-
“Where a decree orders payment of money by instalments, execution shall not issue until after default in payment of some instalment according to the order, and execution, or successive executions may then issue for the whole money then remaining unpaid, or for such portion thereof as the Court orders, either when making the original order or at any subsequent time.”
The rule very closely follows the wording of section fit of the United Kingdom Execution Act, 1844.
In my opinion the Order for the payment of the judgment debt by instalments took the place of the original decree, and its effect was no longer a present debt of £363 6s. 6d. due by the plaintiff to the first defendant, but a debt accruing due by 30s. a month.
Where an Order for the payment of a judgment debt has been made under Order 43, rule 6 it seems to me that two conditions must be satisfied before execution can issue. Firstly, there must be an instalment in arrear; and secondly, there must be an Order of the Court specifying the amount of the instalment or instalments then owing in respect of which execution shall issue. In other words, there is a stay of execution unless the leave of the Court to issue execution has been obtained.
It follows, therefore, that in my view, the learned trial Judge was right in holding that the execution was wrongful, and the subsequent sale of the charging plant unlawful.
As to the question whether the damages awarded are excessive. The evidence regarding the loss sustained in respect of the twenty batteries belonging to customers appears to me to be unsatisfactory, but it was not disputed by evidence or cross-examination. That being so I am not prepared to hold that the trial Judge was wrong in awarding the amount claimed.
The amount claimed for loss of earnings was disputed, but, in my view, the amount awarded under that head was reasonable and justified on the evidence. With regard to the complaint about the amount awarded by way of general damages. The principles which should guide this Court in considering the question cannot, I think, be better stated than they were by Greer, L.J., in the case of Flint v. Lovell (1), where he said:-
“I think it right to say that this Court will be disinclined to reverse the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a lesser sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was no extremely high or so very small as to make it in the judgment of this Court, an entirely erroneous estimate of eh damage to which the plaintiff is entitled.”
Applying those principles to the present case, I am unable to agree that it would be right for us to interfere by reducing the sum awarded by the learned trial Judge.
For the reasons I have given I would dismiss the appeal with costs fixed at £13 15s. 0d.
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COUSSEY, J. A.
I agree.
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ACOLATSE, AG. J.
I agree.
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Appeal dismissed.
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