Must An Application for Recovery of Possession of Immovable Property Be Made on Notice or Ex Parte?

Authors:  Antoinette Kyeremanteng & Theophilus Boateng Osei

Abstract

This paper seeks to analyze, evaluate and examine the contention whether or not recovery of possession after judgment can be obtained ex parte or on notice to all parties in the suit and all persons in possession.

Introduction 

One of the well-known maxims of equity is “Equity will not suffer a wrong to be without a remedy.” This maxim indicates that, where the law confers a right on a person, in the event where that right is breached or interfered with, the law also provides a remedy for the said breach or interference. Accordingly, under the laws of Ghana, a party who suffers a wrong is entitled to commence an action in court to obtain a remedy.  It is the duty of the Courts to adjudicate on disputes and pronounce judgments in cases brought before it. This is typically done through judgments and orders made by the Courts after the addresses of the parties to the action have been given.

 A fundamental legal principle is that “Every litigation must come to an end” thus, where a Court finds for a party in an action and grants final judgment, the victorious party usually enforces the judgment by making an application to the courts to enforce the judgment. Judgments are generally enforced by the issuance of writs of execution.  Order 44 Rule 1 of the High Court (Civil Procedure) Rules 2004 (C.I 47), provides the following:

“In this Order, unless the context otherwise requires, “writ of execution includes a writ of fieri facias, a writ of possession, a writ of delivery, a writ of sequestration and any other writ in aid of execution.”[1]

Execution of Judgment 

According to the Black’s Law Dictionary, 8^th Edition, “a judgment is the court’s final determination of the rights and obligations of the parties in a case”. The Supreme Court, speaking through Afreh JSC in the case of REPUBLIC v. COURT OF APPEAL; EX PARTE GHANA COMMERCIAL BANK PENSIONERS ASSOCIATION held that “the term ‘judgment’ has at least two meanings. First, it may be used to refer to the formal document in which the decision, determination or conclusion of the court is expressed; and secondly the reasoning or the exposition of the grounds for reaching that decision, determination or conclusion.”[2] A party who wishes to enforce judgment in his favour shall as a first step draw up a judgment and file it to be entered and served on the other party. This is known as entry of judgment and is governed by Order 41 Rule 7 (1) of The High Court (Civil Procedure) Rules 2004 (C.I 47). This rule provides as follows:

“The party seeking to have a judgment entered shall draw up the judgment and present it to the Registrar for entry.”[3]

Where the entry of judgment is served on the losing party and the losing party fails to satisfy the judgment debt within seven (7) days of the service of judgment, the process of execution is started. This implies that every judgment is in effect stayed for a period of seven (7) days pursuant to Order 41 Rule 7 (3) of The High Court (Civil Procedure) Rules 2004 (C.I 47) which provides the following:

“An order required to be drawn up shall be drawn up by the party in whose favour the order is made, and if that party fails to draw up the order within seven (7) days after it is made, any other party affected by the order may draw it up.”[4]

Judgments may be enforced by any of the writs of execution depending on the nature of the judgment. The methods of enforcement of judgments include, Writ of fieri facias, Writ of Possession, Garnishee Proceedings, Charging Orders, Appointment of Receiver, Committal Order and Writ of Sequestration. The focus of this paper will be to evaluate whether or not recovery of possession after judgment can be obtained ex parte or on notice to all parties in the suit and all persons in possession.

Writ of Possession

Pursuant to Order 43 rule 3(1) of The High Court (Civil Procedure) Rules 2004 (C.I 47), a judgment or an order for the recovery of possession of immovable property may be enforced by a writ of possession. This is typically the case where a judgment or an order requires the giving up of an immovable property or for ejection. As maintained by Order 43 rule 3(2) of C.I 47, a writ of possession to enforce a judgment or order for the recovery or possession of immovable property shall not be issued without leave of the Court, except where the judgment or order was given or made in a mortgage action under Order 59 of C.I 47.

Further, leave shall not be granted unless the court is satisfied that all persons in actual possession have received the notice of the proceedings to enable a person to apply for any relief to which the person may be entitled, as stipulated in Order 43 rule 3(3) of C.I 47. This is to the effect that, persons in the occupation of a property which is the subject matter of the writ of possession must be notified of the execution proceedings whether they were parties to the action or not. This position has been upheld and maintained by the learned Justice Marful-Sau in his seminal book, “A Practical Guide to Civil Procedure in Ghana”.

 Nevertheless, another school of thought propounds that, in dealing with recovery of possession after judgment, it can be obtained ex parte and notice need not be given. According to Kwami Tetteh in his authoritative book, Civil Procedure; A Practical Approach, he puts forth that, the application for leave may be made ex parte supported by an affidavit identifying the judgment or the order to which the application relates to[5]. He maintains further that, the supporting affidavit should disclose all relevant information to satisfy the court of the applicant’s right to execution and must demonstrate the fact that the person against whom the order is made is indeed liable to execution. He contends that, such information would include, where the property is in the possession of the defendant or any other person and the nature of notice to those persons of the intention to recover the possession. He opines that, “In principle, a defendant is not required to be given notice of the application for a writ of possession to issue. Such defendant would have been served with the writ of summons or notice of the claim for possession and the entry of judgment thereon.”[6]

Whether or not an Order for Recovery of Possession must be made on Notice or Ex Parte 

Application for Recovery of Possession of Immovable Property Made Ex Parte

Order 44 of The High Court (Civil Procedure) Rules 2004 (C.I 47) governs writs of execution in general. Accordingly, Order 44 Rule 3 of C.I 47 provides the following

“A writ of execution to enforce a judgment or order may not issue without leave of the Court in the following cases

1. Where six years or more have elapsed since the date of the judgment or order;
2. Where any change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the order;
3. Where the judgment or order is against the assets of a deceased person coming into the hands of his or her executors or administrators after the date of the judgment or order, and it is sought to issue execution against the assets;
4. Where under the judgment or order, any person is entitled to relief subject to the fulfillment of any condition which is alleged has been fulfilled; or
5. Where any goods to be seized under a writ of execution are in the hands of a receiver appointed by the Court or a sequestrator.”[7]

Further, Order 44 Rule 5 of The High Court (Civil Procedure) Rules 2004 (C.I 47) provides the following;

“An application for leave to issue a writ of execution may be made ex parte”[8]

Gleaning from the above provisions, and owing to the fact that a writ of possession is categorized under a writ of execution, its application may be made ex parte as provided by the rules. This is reaffirmed by the learned author Kwami Tetteh in his book, Civil Procedure; A Practical Approach, where he maintains that, “The answer to the question whether the application must be on notice to a defendant in possession must be in the negative. Notice of the judgment or order must be given a defendant solely in possession of the premises, and called upon him to yield possession. Persons in possession, who were not parties to the proceedings, must be served with notice to quit in writing in order to give them reasonable notice as will give them a reasonable opportunity to apply to the court for relief. However, this position raises questions as to who is responsible for writing and serving notice to quit to people in actual possession. Further, the High Court (Civil Procedure) Rules 2004 (C.I 47) does not make provision for “service of notice to quit”. Furthermore, the general position of the law is that, all court processes must be served on all parties by an officer of the court (bailiff). This means that, the individual parties in a suit cannot suo motu write a notice to quit and serve it on a party. Service must always be proved and notice must be given to all affected parties in a matter before the Court.

The learned author further maintains that, “the rule does not create a new right in favour of a tenant or occupier to be waged afresh; it only offers the opportunity to apply for relief.”[9] He also puts forth that, a judgment or order for possession implies that the party against whom it is made is not entitled to retain possession any further. Such party would be entitled to notice of the application for leave to issue a writ of possession in the circumstances mentioned above and not necessarily by virtue of the fact that the person is in possession.

Again, this provision in Order 44 Rule 3 of C.I 47 is mirrored in Order 22 Rule 3 of The District Court Rules 2009, C.I 59 which provides the following:

“(1) A writ of execution to enforce a judgment or order may not issue without leave of the Court where

(a) six years or more have elapsed since the date of the judgment or order,

(b) a change has taken place, whether by death or otherwise, in the parties entitled or liable to execution under the judgment or order,

(c) the judgment or order is against the assets of a deceased person which has come into the hands of that deceased person’s executors or administrators after the date of the judgment or order, and it is sought to issue execution against those assets,

(d) under the judgment or order, a person is entitled to a relief subject to the fulfillment of a condition which it is alleged has been fulfilled, or

(e) goods to be seized under a writ of execution are in the hands of a receiver appointed by the Court or a sequestrator.”

Additionally, the case of Republic v. High Court Accra; Ex Parte Salloum And Ors And Charles Senyo Coker (Interested Party)[10] is instructive. In this case, the Applicants invoked the supervisory jurisdiction of this court to quash by certiorari the order of the High Court granting the Respondents leave to issue a writ of possession against the Applicants. On the question of whether an application for recovery of possession of immovable property must be made on notice or ex parte, the Supreme Court speaking through Anin- Yeboah JSC (as he then was)  stated as follows,

“These are two main circumstances which, as decided in Leedo v. Bank of the North[11], an application ex-parte could be made. These are when, from the nature of the application, the interest of the adverse party will not be affected and when time is the essence of the application. In any of these situations a court may rightly exercise its discretion by granting motion ex- parte. But where the motion will affect the interest of the adverse party, a court of law should insist and order that the adverse party be put on notice” The Supreme Court in this case further stated that, “I freely accept the proposition of law that in motions mounted ex parte; the utmost good faith is required of an applicant. The few cases which come to mind are: R v. Kensington Income Tax Commissioners, Ex parte Princess Edmond de Polignac [12]and R v. Accra District Court Magistrate, Ex parte Kuma[13]. But we wonder whether an application to set aside any order which was made by a court of competent jurisdiction by relying on suppressed facts should be made ex parte when there are no prevailing circumstances warranting it to be made ex parte without notice to the person to be affected.”[14] Be that as it may, it is worth noting that the interest of the adverse party will most likely be affected in matters concerning applications for recovery of possession of immovable property especially where they are in actual possession of the property which is the subject matter of the application.

Application for Recovery of Possession of Immovable Property Made on Notice 

Pursuant to Order 43 rule 3(3) of The High Court (Civil Procedure) Rules 2004 (C.I 47),

“The leave shall not be granted unless it is shown that every person in actual possession of the whole or any part of the immovable property has received such notice of the proceedings as appears to the Court is sufficient to enable the person apply o the Court for any relief to which the person may be entitled.”

In the case of In Re Kumi (Dec’d), Kumi v. Nartey[15] , Sophia Adinyira JSC said at page 632-633 as follows: “As said earlier, it is trite law that a person cannot be found guilty or liable on order or judgment unless he had been give fair notice of the trial or proceeding to enable him to appear and defend himself. This is the essence of justice. Failure by a court or tribunal to do so would be a breach of the rules of civil procedure and nature justice. A judgment or order procured under such circumstances is, in our view a nullity.”

In the case of Nii  Okaidja III, Percy Okoe Addy & Okoe Aryee v. Nii Tettey Ahinakwa II & Thomas Okine[16], the Respondents argued that though they were in possession of the property in respect of which execution had been carried out, they were not notified in compliance with Order 43 rule 3(3) of the High Court (Civil Procedure) Rules 2004, C.I 47. Consequently, they alleged that writ of possession ought not to have issued without notice to them as provided for in Order 43 rule 3(3) of the High Court (Civil Procedure) Rules 2004, C.I 47. The Supreme Court in this case held that the failure of the Appellants to give notice to the Respondents who were in actual possession of the property as provided by C.I 47 was a breach of the rules. Accordingly, the execution founded thereon was an irregularity. This decision is supported by the learned authors of Halsbury’s Laws of England in where writing on the topic “Irregular Execution” stated as follows: “An execution is irregular where any of the requirements of the rules of court has not been complied with, and in such a case the proceedings may be set aside or amended or otherwise dealt with in such manner and upon such terms as the court thinks fit. Such non-compliance must be treated as an irregularity and does not nullify the proceedings or any document, judgment or order therein.”[17]

It follows that, serving notice to affected persons in a matter is an essential requirement in proceedings. In Vasquez v. Quarshie[18], Justice Amissah stated as follows: “A court making a decision in a case where a party does not appear because he has not been notified is doing an act which is a nullity on the ground of absence of jurisdiction.”[19]Again, in the case of Ansah v. Ansah[20], it was held that, “Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party.”[21]

This position was re-echoed in the case of Barclays Bank v. Ghana Cable Co. Ltd and Ors[22], where the Supreme Court per dictum of Acquah JSC held as follows, “Ex parte applications and orders for injunctions are undoubtedly anomalies in our administration of justice and had the Rules of Court not permitted such applications and orders to be made, they would have been nullities… Such applications are to be resorted to only in cases of extreme emergency, where the interest of justice requires that the court should intervene immediately without notice to the other party affected” [23]

Conclusion

From the above considerations, it is our humble opinion that in our quest to evaluate the differing contentions regarding whether an application for recovery of possession may be made on notice or ex parte, we are of the opinion that an application for recovery of possession must be made on notice. The basis of our position is that, in accordance with the principle of natural justice, particularly audi alteram partem, it is prudent to ensure that an application for recovery of possession of immovable property is made on notice such that, parties who are in actual possession of immovable property but are not parties to the court proceedings can be heard and file an affidavit in opposition if any before a court can enforce the judgment for the recovery of possession of immovable property. This is to uphold the rules of natural justice and ensure fairness.

[1] Order 44 Rule 1 of the High Court (Civil Procedure) Rules 2004 (C.I 47).

[2] 2001-2002 SCGLR.

[3] Order 41 Rule 7 (1) of the High Court (Civil Procedure) Rules 2004 (C.I 47).

[4] Order 41 Rule 7 (3)of the High Court (Civil Procedure) Rules 2004 (C.I 47

[5] Tetteh, Kwami S. Civil Procedure: A Practical Approach, 2011 at page 996.

[6] Tetteh, Kwami S. Civil Procedure: A Practical Approach, 2011 at page 996.

[7] Order 44 Rule 3 of C.I 47.

[8]Order 44 Rule 5 (1) of the High Court (Civil Procedure) Rules 2004 (C.I 47).

[9] Ibid.

[10] [2011] 1 SCGLR.

[11] [1998] 7 SCNJ 328.

[12] [1917] IKB 486 CA.

[13] [1968] GLR 955.

[14]  Supra at note 9 at page 583.

[15] [2007-2008] SCGLR at page 723.

[16] [2011] 1SCGLR

[17] Halsbury’s Laws of England, Volume 17 (4th Edition) at page 276

[18] [1968] GLR 62 at page 65

[19] Ibid

[20] [1977] 2 All ER 638

[21] Ibid

[22] [19997-1998] 2 GLR

[23] Ibid