Oral Examination of Judgment Debtor
Judgment is given in favour of a party in a case before the court if the facts are on his side. A judgment is regarded as an oral judgment when the judge declares it in court in the presence of the parties after the evidence is heard in court from the parties and witnesses. It could also be a written judgment, that is, the judge listens to the parties and witnesses and writes judgment on paper. He would thereafter deliver it in court. In the majority of cases, the party who wins is given costs. This means that the other party would have to pay the costs of the winning party.
It now becomes necessary for the losing party or the judgment debtor to pay up, if a sum of money was awarded. If he does not, he would be subject to enforcement. An oral examination is done prior to enforcement and the judgment debtor would be called upon to submit to the oral examination done by an examiner. The examiner is usually the Registrar of the High Court or any officer authorized by the Chief Justice as per the rules. An oral examination is done primarily to obtain information in order to enforce the judgment. At this stage, the judgment debtor is regarded as the examinee. An officer of a body corporate could also be an examinee.
The Civil Procedure Rules (CPR 2000) provide for oral examination under Rule 44. The judgment creditor must make an application for an order that the examinee attend an oral examination. This may be made without notice. Where the application is for an officer of a corporation there must be affidavit evidence to support the application.
Form 14 is one of the standard forms of the court. It is essentially the order of court for oral examination. It is drafted by the lawyer for the judgment creditor and presented to the court for approval by the judge. It must state the date on which the examination will take place and where it will take place. In addition, it provides other basic instructions to the judgment debtor. For example, it states precisely that he would be examined about his “financial circumstances” and it requires him to produce information about any property or assets that he owns. An officer or a corporate body is ordered to present any books or document in his “possession or power” regarding the company.
The order also carries in detail the amount of money that is owed, the interest up to the present date and the daily rate at which the sum will continue to increase. The order must state in bold letters the liability of the judgment debtor. If he fails to comply with the order, then proceedings could be brought against him “for contempt of court and he will be liable to be imprisoned”
The judgment creditor must have the order served personally on the judgment debtor, at least 7 days before the hearing. An affidavit of service must be filed at least three days before the date fixed for the examination.
At the beginning of the examination, the examinee must take an oath or affirm to tell the truth. At the end, he must sign to the statements taken down during the examination. If he refuses, then the examiner will sign and certify to be a true record of the examination. Costs will be at the discretion of the examiner.
Attendance is of utmost importance. If the person to be examined does not turn up, or if he attends but refuses to be sworn, or answer a question, the examiner may adjourn the examination to a judge. This would mean another hearing. You should make all effort to attend.
Ada Johnson is a solicitor and barrister-at-law. E-mail address is: email@example.com