The Propriety or Otherwise Of Order 73 Of CI 47 in Light of Ex Parte PPE Ltd & Paul Juric and Martin Kpebu (No.1)

Source: Her Honour Sedinam Awo Kwadam & Emmanuel Babuboa

INTRODUCTION.......................................................................................................................... 3

A CRITICAL LOOK AT ORDER 73 OF CI 47.......................................................................... 5

Order 73 of CI 47 in light of Article 14 (1) (c) of the 1992 Constitution............................ 6

Practical application of Order 73 in our courts.................................................................. 10

Further examination of Order 73 of CI 47.......................................................................... 12

CONCLUSION............................................................................................................................ 20

The need for a CI to remedy the mischief.......................................................................... 20

Application of the above proposal to Order 12 of CI 59................................................... 21

INTRODUCTION

Unlike in the days of Re: Akoto & 7 Others [1], fundamental human rights and freedoms under the 4th Republican Constitution[2] have been entrenched[3], meaning its amendment process is rigorous and involves the exercise of the people’s power[4]. One may say that the import of the entrenchment is to avoid any relapse into the dark, ignoble and shameful days of Re: Akoto & 7 Others, where fundamental human rights and freedoms were construed and compared to the coronation oath in England, and therefore pronounced as unenforceable. It is this underlying philosophy that should guide us in evaluating whether Order 73 of CI 47 as it exists currently is in breach of, or inconsistent with Article 14 (1) of the 1992 Constitution.

The Right to Liberty of a person is a fundamental human right, and this right is also enshrined and entrenched in the Constitution[5]. Article 14 of the Constitution guarantees the right to liberty and provides for the protection of personal liberty. It enacts that personal liberty shall not be deprived except in stated cases and in accordance with procedure permitted by law. We shall quote, in extenso, the relevant provisions.

Article 14 (1) provides, thus:

“Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law -

in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; or
in execution of an order of a court punishing him for contempt of court; or
for the purpose of bringing him before a court in execution of an order of a court; or
in the case of a person suffering from an infectious or contagious disease, a person of unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community; or
for the purpose of the education or welfare of a person who has not attained the age of eighteen years; or
for the purpose of preventing the unlawful entry into Ghana, or of effecting the expulsion, extradition, or other lawful removal of that person from Ghana while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another; or
upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana”[6]

A CRITICAL LOOK AT ORDER 73 OF CI 47

Next, we examine Order 73 of CI 47[7]. Where in this paper we refer to Order 73, we are referring to Order 73 Rules 1, 2, 3, 4 and 6 of CI 47 which relate to absconding warrant for the arrest of a defendant in a civil suit. We shall summarize the relevant portions of Order 73 that will help us establish that the Order is inappropriate.

Order 73 Rule 1, sub-rule 1 allows a plaintiff in a civil suit, presumably for a liquidated claim, at the institution of the action or at any time before final Judgment, to make an Application Ex-parte supported by an Affidavit to the court for an order for security to be taken for the appearance of the Defendant to answer any Judgment that may be given against the Defendant in the action, where the amount involved in the action exceeds ¢5 million, on either of two grounds, namely;

the defendant has disposed of or removed all or part of the property of the defendant from the country, or
the defendant is about to leave the country.

Rule 1, Sub-rule 2, provides that the court may issue a warrant to bring the Defendant before the court to show cause why the Defendant should not give good and sufficient bail for the Defendant’s appearance where it is satisfied that the provisions in paragraph (a) or (b) of sub-rule (1) have been substantiated and that the execution of any judgment in the action against the Defendant is likely to be obstructed or delayed.

Rule 2 provides that when the Defendant is brought before the court, but fails to show cause, the court shall order him to give bail for his appearance at any time while the action is pending until the execution or satisfaction of any Judgment that may be given against him in the action and the surety shall undertake to pay any money that may be adjudged to be paid by the Defendant in the action in default of the appearance of the Defendant.

Rule 3 provides for deposit of money or other valuable property by the defendant sufficient to satisfy the claim and costs of the action in lieu of bail.

Rules 4 provides that in default of security or deposit by the defendant, the defendant may be committed to custody until the determination of the action, or if the judgement is against the defendant, until the execution of the order, if the court so orders, except that the court may at anytime release the defendant upon reasonable cause being shown, and upon terms as security or other matters of relevance.

Rule 6 deals with the cost of keeping the arrested person, and it flows from the previous rules.

Order 73 of CI 47 in light of Article 14 (1) (c) of the 1992 Constitution

It is our considered view that Order 73 cannot in any way be construed as a procedure permitted by law as part of the exceptions envisaged under Article 14(1) as cases in which a person may be deprived of his personal liberty.

The exceptions provided in Article 14 (1) (a) to (g) are all in relation to the commission of a crime and the conviction of an accused person, the trial of a crime or the prevention of a crime or the protection of the vulnerable – i.e. some specific sick persons and the underaged. None of the exceptions to the right to personal liberty relates to civil liability, as in the liability of a defendant in a civil suit, especially for liquidated claims.

In Ex Parte Augustus Osae[8], the Supreme Court sought to conclude, albeit in obiter, that the exception in Article 14(1) (c) relates to civil liability. With the greatest respect to the Apex Court, we humbly submit that, that conclusion was made in error, to the extent of its application of Article 14 (1) (c) of the Constitution to Order 73 of CI 47.

Article 14 (1) (c) provides that:

“Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law –

In Ex Parte Augustus Osae (supra), the Supreme Court, speaking through Owusu JSC, stated, thus:

“With regard to the Applicant’s submission of a violation of his Constitutional rights, the relevant provisions referred to are Art. 14(1) which states that “Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law - ….. Among the cases is 14(1) (c) where the person shall be deprived of his personal liberty “for the purpose of bringing him before a court in execution of an order of a court”. If the order of the absconding warrant was made in accordance with the rule i.e. order 73(1) then that cannot constitute a violation of Art 14(1).”’ - Emphasis, humbly ours.

This paper will not deliberate on the constitutionality or otherwise of Order 73. Our focus shall remain on the appropriateness of Order 73 in light of Exparte PPE LTD and Martin Kpebu (No. 1).

Civil law has provided remedies for litigants whose opponents fail to appear before the court. The remedies are in several forms, including, judgement in default of appearance[9], or judgement in default of defense[10] on claims made in the statement of claim and counterclaims, as the case may be. Cost may also be awarded against a party for failing to appear before the court and/or comply with the orders of the court. A party’s pleadings may also be struck out for failing to comply with the orders of the court. But should a court hearing a civil suit, be clothed with the power to issue a warrant for the arrest of the defendant in the said suit, in order to secure the eventual satisfaction of a judgement entered in favour of the plaintiff therein, should the latter emerge victorious at the end of the trial?

Indeed, it is beneficial for all parties to appear before the court in civil litigations to put their respective cases before the court. There are legal consequences for nonappearance and non-prosecution of cases by parties in civil litigation. The fear of the plaintiff in a civil suit that the defendant may either abscond or deplete his assets and thereby rendering a judgement eventually entered in favour of the plaintiff at the end of the trial a nugatory, is what Order 73 seeks to address. In the quest to allay the fears of the plaintiff, which we must add are legitimate fears, Order 73 provides a pacifier approach to allaying the fears of a victorious plaintiff by breaching the personal liberty of his adversary, and insisting that the said adversary secures his freedom pending litigation, by the deposit of money or other valuable property, or giving bail with sureties. It is our respectful submission that this approach is inappropriate, unsupported and unsound, considering our jurisprudence; civil and criminal, with respect to available and applicable legal redresses for non-payment of judgement debts.

It is against the general principles of law for a criminal procedure to be adopted in enforcing civil rights. This accounts for the distinction between criminal liability and civil liability, a crime and civil wrong, and criminal law and civil law.

Halsbury’s Laws of England (4th Edition) Volume 11 at page 11, the learned authors writing on the subject “Principles of Criminal Liability” state on the sub-heading “Criminal and Civil Liability distinguished” as follows:

“Civil proceedings have for their object the recovery of money or other property, or the enforcement of a right or advantage on behalf of the plaintiff; criminal proceedings have for their object the punishment of a person who has committed a crime. Criminal proceedings are not to be used as a means of enforcing a civil right.”[11] – Emphasis humbly supplied by us.

It is generally known that arrest of suspects and accused persons is a procedure for enforcing criminal law (as stated earlier). Therefore the Criminal and Other Offences (Procedure) Act, 1960 (Act 30) has set down the procedure for effecting the arrest of such persons in criminal cases.12

As a general principle of law, therefore, arrest as a criminal procedure should not be an appropriate procedure in civil litigations. Perhaps, the only exception is in contempt of court cases, arising in civil litigations. But our Constitution has specifically provided for the latter as an exception to the enjoyment of personal liberty in Article 14(1) (b), as stated earlier.

Article 14 (1) (b) provides:

“Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law -

(b) in execution of an order of a court punishing him for contempt of court”

Gone are the days immediately following the Industrial Revolution when it was common place in England for persons and indeed families to be thrown into jail (or deprived of their personal liberty) for debts arising out of contracts. Since then, the distinction between a civil arrangement and a criminal offence has been maintained, at least in this country[12].

Gbadegbe JSC has stated, thus:

“I venture to say that the constitution aside, speaking from basic principles of law the mode of redress in a crime as opposed to a civil action is its distinguishing feature on which there is no conflict of opinion”[13]

From the above authorities and analysis, it is obvious that it is inappropriate and legally unsound for a criminal procedure, i.e.; an arrest, bail and committal, to be used to deprive a person of his personal liberty in order to achieve a civil right, i.e.; the benefit of a judgement debt which is yet to materialize, as Order 73 has blatantly done.

The summary of our submission is that Order 73 of CI 47 permits plaintiffs in civil suits to use a criminal procedure (of arrest, bail and committal) to attain a civil right (i.e., enforce a civil liability). This is contrary to basic principles of law. Indeed, it is a deviation from the established principles of criminal jurisprudence which have informed the underlying distinction between a crime and a civil wrong.

Practical application of Order 73 in our courts

Before we examine Order 73 further, let us look at Ex Parte Augustus Osae (supra) in relation to the practical application of Order 73 in our courts.

Ex Parte Augustus Osae (supra), tells a despicable story of the undesirable effects of the application of Order 73 on civil liberty. The Interested Party in this Application before the Supreme Court (who was the Plaintiff in the trial court) sued the Applicant (the Defendant in the trial court) for the return of a Mercedes Benz, a BMW, and recovery of US$6,000 outstanding on another Mercedes Benz. The writ of summons and statement of claim were filed on 15/12/08. On that same day, and about 40 minutes after the writ had been filed, the plaintiff filed an application ex-parte for an absconding warrant and an order for preservation or alternatively for provision of security against Judgment on the grounds that the defendant lived in the UK and that he had information that the Defendant intended to leave the jurisdiction of the court.

The High Court granted the plaintiff’s Application (although a bench warrant was issued instead of an absconding warrant). The plaintiff and the court officials were in the house of the defendant in an attempt to enforce the warrant on the same day it was granted as late as 10:00pm. When they did not succeed, they went back to the house as early as 2:00am the next day (16/12/08) to effect the arrest of the Applicant. The defendant/applicant’s right to civil liberty was deprived until 3:05pm, when the court was informed that he had fulfilled the conditions of bail, that the Defendant was granted bail in the sum of GH¢75,000 with two sureties, and also an order for the defendant to report to the registrar once every two weeks until the court otherwise directs.

The Supreme Court expressed its disgust for the manner in which the liberty of the defendant was violated in the following words:

“The court must register its disapproval for the manner in which the attempt was made to execute the absconding warrant. Having succeeded in getting the Application moved the same day that it was filed, the Plaintiff took steps to get it executed no matter when. As late as 10:00pm, the court officers were in the

Defendant’s house to effect his arrest at that unholy hour. It is not for nothing that times are set for service of court processes on parties. Therefore, where a court official attempts to effect service outside these hours, he will be acting without authority. I say without any misgivings that the haste with which the bailiff sought to effect the arrest of the defendant smacks not only of suspicion by [sic] constitutes abuse of the process which the court must condemn in no uncertain terms.”

We totally agree with the disapproval expressed by the Supreme Court with regards to the unacceptable deprivation of the civil liberty of the defendant in this case. But we wish to point out that an absconding warrant is not a court process, and so it is not served by court officials. Rather, it is usually executed by police officers who have the power to effect arrests. Since an absconding warrant is not a court process, the rules regulating the service of court processes do not apply to it. Consequently, and just like all warrants of arrest, there is no specified timeframe for the arrest of a person specified to be arrested. So, an absconding warrant can be effected at any time, even at 12:00 midnight. This goes on to buttress the severity of the effects of an absconding warrant on the civil liberty of defendants in civil suits.

The facts on which the plaintiff’s claims were based are simple and straight forward. By an agreement between him and the Defendant, he entrusted two vehicles, a Mercedes Benz S500 and a BMW, which he had shipped to Ghana to the Defendant, for the Defendant to sell them for him at $93,000.00 and $94,000 respectively and the proceeds paid to the plaintiff.

A third vehicle, Mercedes E500 was sold to the Defendant for his personal use for $65,000.00. The agreement was that the Defendant was to pay him part of the purchase price and use the balance to clear the remaining two vehicles. According to the plaintiff, the Defendant took delivery of the 3 vehicles and kept the E500 Mercedes Benz which he had been using, still unregistered. This agreement was made in April 2007. In August 2007, the Defendant remitted $12,000.00 to the plaintiff through his (plaintiff’s) brother in the USA. A long time thereafter, when the plaintiff did not hear from the Defendant, he came to Ghana to check on the 2 other vehicles.

When in Ghana, the Defendant failed to pay for the balance of the cost of the Benz E500 which he bought and also account for the two other vehicles. Hence, the institution of the civil action that led to the arrest of the defendant and infringement of his personal liberty.

From the facts, it is obvious that this was purely a civil matter, wherein a criminal procedure involving the arrest of the defendant and the consequent infringement of his personal liberty was ordinarily not expected.

This paper has already examined the obiter of the decision of the Supreme Court in Ex Parte Augustus Osae in relation to personal liberty and concluded, with the greatest respect to the Court that the decision was made in error to the extent of its application of Article 14 (1)(c) of the Constitution to Order 73 of CI 47.

Further examination of Order 73 of CI 47

As stated above, Order 73 of CI 47[14] strangely permits a plaintiff to bring an ex parte application supported by an affidavit for an absconding warrant to be issued against a defendant on allegations that the defendant in the civil suit is either:

about to leave the country or
has disposed of or removed all or part of his property from the country,

The plaintiff may elect to make this application either at the time of the institution of the civil action or any time before final judgement.

According to the Rules Book[15], the objectives of the application and the consequential issuance of the absconding warrant are to:

take security for the appearance of the defendant to answer any judgement that may be given against him at the end of the suit, and
ensure that the execution of any judgement of the suit is not obstructed or delayed.

Let us now examine these provisions of Order 73.

First of all, the application is made ex parte without any opportunity for the defendant to be heard (but this is not the focus of this paper).

Secondly, the application is made on allegations that the defendant is either about to leave the country or has disposed of or removed part or all of his property from the country. Granted that these allegations do exist, it is our humble submission that there are remedies in substantive law and in equity for curing these two allegations.

For example, with regards to allegations that the defendant has disposed of or removed part or all the properties of the defendant from the country, the plaintiff may bring an application ex parte for an interim injunction and subsequently bring an application on notice for an interlocutory Freezing Injunction also known as Mareva Injunction[16] for the freezing of the proceeds of the sale or to restrain the defendant from applying the proceeds of the sale while the action is pending.

The properties that are yet to be disposed of can be properly preserved by an application for an order for preservation under order 25 rule 2(1) of the High Court (civil procedure) Rules, 2004 (C.I.47).

These are legal and equitable remedies already available in our civil procedure to a plaintiff in the kind of situations described in Order 73. Accordingly, the rules of court should not permit the infringement of the sacred right to personal liberty by way of the issuance of an absconding warrant based on such allegations.

Thirdly, if the defendant has disposed of or removed part of or all his property in the country, the effect of the plaintiff’s action would be to recover the proceeds of the sale (the money received from the sale).

The law is that a person shall not be committed to prison for the inability to pay his debts to another person[17], otherwise than payment of money into court[18].

Let us look at whether or not personal liberty may be deprived for the failure to pay a debt. Order 43 makes provision for judgement for the payment of money. Order 43, Rule 1(1) provides as follows:

“Subject to these Rules, a judgment or order for the payment of money, not being a judgment or order for the payment of money into court, may be enforced by one or more of the following means: (a) writ of fieri facias; (b) garnishee proceedings;

5 applies, an order of committal or a writ of sequestration.”

Rule 5(1) (a), (b) and (cc) provides that:

“5(1) Where (a) a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or within extended or reduced under Order 80 rule 4; or (b) a person disobeys a judgment or order requiring the person to abstain from doing an act; the judgment or order may subject to these Rules be enforced by one or more of the following means… (cc) an order of committal against that person or, where that person is a body corporate, against any director or other officer.”

Paragraph (e) provides for committal of a person or a director of a company in accordance with the procedure listed in Rule 5(1) (a), (b) and (cc).

Concerns then arose over whether the rules have made provision for imprisonment for debts since a specific provision, Rule 12, in the same order said something quite to the contrary.

Rule 12(1) of the same Order 43 provides as follows:

“Rule 1(1) of this Order with the omission of paragraph (e) and Orders 27, 44 to 47 and 49 shall apply to a judgment or order for the payment of money.”

The effect of Rule 12 (1) is that a writ of fieri facias, garnishee proceedings, a charging order and the appointment of a receiver are to be used for enforcing judgment for the payment of money or order for the payment of money, but not an order of committal.

In Ex Parte PPE Ltd (supra), the plaintiff had sought to imprison a director of a company who had failed to satisfy a judgment debt and a subsequent order of the court to pay the judgment debt by a specified date. When the defendant’s preliminary objection to the procedure adopted was declined by the High Court, the defendant filed a certiorari application before the Supreme Court invoking its supervisory jurisdiction to quash the ruling of the High Court Judge and to further issue an order prohibiting him from the proceedings before him. The Supreme Court granted that application on the reasoning that the issue before the court was one of civil liberty and the court was called upon to answer whether imprisonment (the deprivation of civil liberty) should be an option available for failure to pay a debt. The Supreme Court speaking through Date-Bah JSC stated that although Article 14 (1) (b) of the 1992 Constitution permits imprisonment of a person punishing him for contempt of court, it would be deeply troubled if this power were extended to the payment of debt. Date-Bah JSC Stated:

“Although article 14 (1) (b) of the 1992 Constitution permits the imprisonment of a person where this is done in execution of an order of a court punishing him for contempt of court, I would be exceedingly troubled if the contempt concerned were solely a failure to pay a judgment debt… Construing the relevant rules of civil procedure namely, order 43, rr 1(1), 5 (1) (cc) and 12 (1) of C.I. 47 according to the normal canons of construction yields a result that is not incompatible with the spirit of civil liberty with which our Constitution is infused.” [19]

Date-Bah JSC further stated in Ex Parte PPE Ltd, thus:

“The provision in Order 43, r 12(1) means that the option of committal for nonpayment of “a judgment or order for the payment of money” has been removed from the jurisdiction of the High Court. The special provision in Order 43, r 12(1) needs to be interpreted to override the general provision in Order 43, r 5(1).”[20]

The matter in issue was put beyond doubt when the Supreme Court, speaking through Date-Bah JSC stated in the Ex-parte PPE Ltd as follows:

“The issue of civil liberty raised is whether in this day and age imprisonment should be an option available for failure to pay a debt. I very much doubt whether this is a restriction on personal liberty that is justifiable in a civilized democratic society.”[21]

We ask a similar question that the Learned Retired Justice of the Supreme Court, Date-Bah JSC asked in Ex-parte PPE Ltd. However, we ask this pertinent question in relation to arrest under Order 73 of C.I. 47 through the execution of an absconding warrant issued by a court hearing a civil matter, i.e., whether in this day and age, an arrest should be an option available for the failure to pay a debt that is yet to accrue (as judgement is yet to be given)?

Justice Atuguba JSC, in concurring with Date-Bah JSC, also stated, thus:

“I entirely concur in the opinion of my learned brother Date-Bah JSC. It is not surprising that the Rules of Court Committee repented, by the provision in Order 43, r 12(1) of C.I 47, of punishment by way of imprisonment of a debtor as a means of enforcing a judgment for the recovery of money. The courts themselves have shown that the power to punish for contempt is so wide that it ought to be kept

within limits.”[22]

Atuguba JSC further stated, thus:

“The exclusion of the remedy of committal to prison as a means of enforcing a decision for the payment of any money (as shown by the provision in rule 12 (1) from the new High Court (Civil Procedure) Rules, 2004 C. I. 47, is in line with the fundamentality of the liberty of the individual in chapter 5 of the Fundamental Human Rights and Freedoms Provisions of the 1992 Constitution.”[23]

Re-echoing to decision of Atuguba JSC in Ex Parte PPE Ltd, Adinyira JSC in Martin Kpebu (No.1) v. Attorney General (No.1) (supra) stated, thus:

“We may recall that since 2004, the remedy of committal to prison as a means of enforcing a decree for the payment of money in civil proceedings has been deleted with the enactment of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). Atuguba JSC in The Republic v. High Court (Fast Track Division) Ex Parte PPE Ltd and Paul Juric (Unique Trust Financial Services Ltd Interested Parties), supra, remarked that this deletion was in line with the fundamental liberty of the individual enshrined in Chapter 5 of our Constitution.”[24] - Emphasis humbly ours.

Some jurists have misconstrued the decision of the Supreme Court in Ex Parte Nii Armah Oblie & others[25]compared with the decision in Ex Parte PPE Ltd (supra). It is important to state from the onset that the facts and decisions in Ex Parte PPE Ltd (supra) compared with those in Ex Parte Nii Armah Oblie & Others (supra) are different. While the ratio of the decision in Ex Parte PPE Ltd (supra) deals with the enforcement of judgement for the payment of money simpliciter, the decision in Ex Parte Nii Armah Oblie & Others (supra) is on the committal of a director for failure to comply with the High Court’s order requiring the director to transfer company money from his personal account to the company’s account. The latter decision was not a judgement for the payment of money simpliciter, and is therefore distinguishable from the former.

The issue before the court in Ex Parte Nii Armah Oblie & Others (supra) was whether the order of the trial court for the return of company money from the applicant’s personal account to the company’s account was an order for the payment of money and therefore not enforceable by committal, by reason of Order 43 r.12 (1) of the High Court (Civil Procedure) Rules, 2004, C.l.47.

The Supreme Court in dismissing the application, spoke through Atuguba JSC, thus:

“Though the order of the trial court involves the payment of money it is a payment of money only in the strict and technical sense but not the kind of judgment or order for the payment of money within the contemplated scope of exemption from committal relief under O.43 r.12 (1).”[26]

Therefore, the principle in Ex Parte PPE Ltd remains the law, and a sound one at that. That is, a person cannot and should not be committed to prison for his inability to pay his debts or judgment for the payment of money.

We humbly state in this paper that, although the authorities above relate to the unconstitutionality of imprisonment of a defendant for the non-payment of debt or judgement for the payment of money, the same reasoning should hold true for the use of an absconding warrant in the arrest, detention and committal of a defendant in a civil suit on the grounds provided for under Order 73 of C.I.47. This is so because both situations relate to civil suits and affect the personal liberty of a defendant who is unable to pay his debts; both adjudged debts and yet-to-be-adjudged debts.

Even more bizarre is the fact that the situation of the use of an absconding warrant is worse in the sense that the debt liability of the defendant is yet to accrue – i.e., the court has not yet pronounced on the liability or otherwise of the defendant.

From the above analyses, the law reckons that infringement of personal liberty on the grounds of non-payment of judgement debt is unconstitutional. That being the case, how much more absurd it is that the personal liberty of a defendant in a civil suit should be infringed upon, on grounds of an expected judgement debt, especially when the plaintiff may or may not succeed in proving his claim.

At the time the absconding warrant is issued in accordance with Order 73, there would not yet have been a determination of the plaintiff’s claims. Indeed, Order 73 provides that the application for the issuance of an absconding warrant may be made by a plaintiff any time before judgement. Which means that, the judgement debt is yet to accrue. The mere institution of an action does not guarantee that the plaintiff would be successful in that action. Why should the rules of court then permit the infringement on the personal liberties of a defendant, an infringement our laws frown upon and permit only in exceptional circumstances, merely on an expectation of a future judgement debt, which judgement debt may or may not materialize at the end of the suit? The plaintiff bears the burden of proof to establish his claims[27] - he bears the burden of persuasion[28] and the burden of producing evidence[29], and indeed, he is required to prove his case by a preponderance of the probabilities[30].

The effect of the pronouncements of Date-Bah and Atuguba JJSC in Ex Parte PPE Ltd (supra), which have been comprehensively cited and discussed above, and the reechoing of the pronouncements by Dotse and Adinyira JJSC in Martin Kpebu (No.1) v.

Attorney General (No.1) (supra) is that a person’s personal liberty cannot be infringed upon on grounds of a failure to pay a judgment debt.

In the same spirit, it goes without saying that a person’s personal liberty cannot and should not be infringed on account of a judgement debt that is yet to accrue.

Consequently, Order 73 of CI 47 should be deemed inappropriate and ill-fitted, based on the binding precedent in Ex Parte PPE Ltd and Martin Kpebu (No.1) v. Attorney General (No.1) (supra), i.e., civil liberty cannot be deprived on account of the failure to pay debt (judgement for the payment of money). If a defendant/judgement debtor in a civil suit cannot have his personal liberty infringed upon on account of his failure to pay debt that has accrued, how much more the deprivation of personal liberty of a defendant on account of his perceived inability to pay a judgement debt that is yet to accrue?

CONCLUSION

The need for a CI to remedy the mischief

Respectfully, our humble proposal is that there is the need for a CI to expunge Order 73 of CI 47 from the said CI 47.

In Martin Kpebu (No.1) v. Attorney General (No.1) (supra), Adinyira JSC stated:

“We may recall that since 2004, the remedy of committal to prison as a means of enforcing a decree for the payment of money in civil proceedings has been deleted with the enactment of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). Atuguba JSC in The Republic v. High Court (Fast Track Division) Ex Parte PPE Ltd and Paul Juric (Unique Trust Financial Services Ltd Interested Parties, supra, remarked that this deletion was in line with the fundamental liberty of the individual enshrined in Chapter 5 of our Constitution.” – emphasis humbly ours

We agree with the deletion of the remedy of committal to prison as a means of enforcing a decree for the payment of money in civil proceedings in line with the fundamental liberty of the individual enshrined in Chapter 5 of our Constitution, as held by Adinyira JSC.

In the same spirit, we humbly propose that there is the need for a CI to be introduced to expunge from the Rules, Order 73 of CI 47, also in line with the fundamental liberty of the individual enshrined in Chapter 5 of our Constitution, i.e., Article 14(1) of the Constitution.

Order 73 creates a mischief, in that, it permits plaintiffs in civil litigations to use absconding warrants to deprive defendants of their personal liberty. Our proposal is that a new CI to amend CI 47 to the extent of expunging Order 73 will be an appropriate and expedient remedy to cure this mischief.

Accordingly, we respectfully propose that the Rules of Court Committee introduces a new CI to expunge Order 73 of CI 47 from the Rules.

Application of the above proposal to Order 12 of CI 59

Order 73 of CI 47 has a mirror image provision in Order 12 of the District Court Rules, 2009 (CI 59). Therefore, our proposal in this paper in relation to Order 73 of CI 47 applies mutatis mutandis to Order 12 of CI 59.

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[1] [1961] GLR 523

[2] Chapter 5 of the 1992 Constitution

[3] Article 290 of the 1992 Constitution

[4] Martin Kpebu (No 1) v. Attorney General (No. 1) Writ No.J1/7/2015, Per Dotse JSC, also see Article 290(4) of the 1992 Constitution

[5] The 1992 Constitution

[6] Article 14(1) of the 1992 Constitution

[7] High Court (Civil Procedure) Rules, 2004 (CI 47)

[8] Republic v. High Court Koforidua; Ex Parte Augustus Osae (Akonnor Samuel Agyei – Interested party) [2009] SCGLR 573

[9] Order 10 of CI 47

[10] Order 13 of CI 47

[11] Ibid; Martin Kpebu (No.1) v. Attorney General (No. 1) dictum of GBADEGBE JSC 12 Sections 3 to 21 of Act 30

[12] Ibid; Martin Kpebu v. Attorney General (No. 1), dictum of Akamba JSC

[13]Ibid; Martin Kpebu (No.1) v. Attorney General (No. 1), per Gbadegbe JSC

[14] High Court (Civil Procedure) Rules, 2004 (CI 47)

[15] Order 73 Rule 1, sub rules 1 and 2 of CI 47

[16] Third Chandris Shipping Corporation v Unimarine SA: CA 1979; per Lord Denning

[17] Republic v High Court (Fast Track Division) Accra; Ex Parte PPE Ltd & Paul Juric (Unique Trust Financial Services Ltd Interested Party [2007-2008] SCGLR 188

[18] Ibid - Ex Parte PPE Ltd, and Lady De La Pole v. Dick (1885) 29 Ch 351

[19] Ibid; Ex Parte PPE [2007-2008] SCGLR 188

[20] Ibid; Ex Parte PPE [2007-2008] SCGLR 188

[21] Ibid; Ex Parte PPE [2007-2008] SCGLR 188 at page 191

[22] Ibid; Ex Parte PPE [2007-2008] SCGLR 188

[23] Ibid; Ex Parte PPE [2007-2008] SCGLR 188

[24] Martin Kpebu (No. 1) v. Attorney General (No. 1) Civil Writ No.J1/7/2015

[25] Republic v High Court (Commercial Div.), Accra; Ex Parte Nii Armah Oblie & Others, Civil Motion No. J5/5/2012

[26]Ibid, Ex Parte Nii Armah Oblie & Others

[27] Section 14 of the Evidence Act, 1975 (NRCD 323)

[28] Ibid; Sections 14 and 10

[29] Ibid; Section 11

[30] Ibid; Section 12