Enforcement of Judgments
WE LEARNED IN the last article that a judgment creditor is the party who obtains a judgment or order in court in his favour, regarding a debt, while the judgment debtor is the party who has to pay the judgment debt. The judgment could also be for possession of land, delivery of goods among others.
If the judgment debtor obeys the judgment order or pays the sum of money due forthright then the matter is settled. If he does not carry out the order or pay, then enforcement will become necessary. In short, he will be forced to pay. Before enforcement is carried out, an oral examination is done by the Registrar of the High court on the application of the judgment creditor. It is a discovery process where the judgment creditor seeks to know what the judgment debtor owns.
Enforcement could be costly because costs have to be paid in addition to the sum of money owing and interests. It could be long and drawn out if the judgment debtor refuses to pay. Sometimes it is more than one day in court.
There is no getting away from this obligation, so you may as well save yourself from the rigors of court attendance. There are several ways of enforcing orders for payment of money.
Part 45 of the Civil Procedure Rules (CPR2000) provide for the payment of a sum of money by way of (1) a charging order, (2) a garnishee order, (3) judgment summons, (4) order for seizure and sale of goods and (5) appointment of a receiver.
If the order is for payment of a sum of money into the court the consequences are dire. A judgment debtor could be handed a committal order if he is given a specified date and time to pay the money. This means that he could be committed to jail for refusal to pay.
His assets could be sequestered or a receiver could be appointed to obtain payment of the judgment debt from income or capital asset that he owns.
Similarly for the enforcement of judgment regarding the possession of land a committal order could be imposed. In addition, an order for sequestration of assets and a writ of possession may be ordered.
For delivery of goods, enforcement is in some ways similar to the above mentioned, with some specific distinctions made as to committal.
What is a charging order?
It is an order to satisfy judgment by charging stock (including securities and shares) or personal property of the judgment debtor to obtain the sum owing.
The judgment creditor
must apply for a charging order on the appropriate form, which must be supported by affidavit evidence. Where the application is for stock the applicant must include an application for the sale of the stock. Attachment of debts A judgment debtor could find that money owing to him is garnished through the action of the judgment creditor. It is done by way of an attachment of debt order. The person who holds the debt for the judgment debtor is the garnishee. The order could require the sum owing and the expenses of the debt proceedings.
There are certain situations where attachment of debt will not be allowed.
For example, order may not be made to attach debts due from the Crown. The order could be made with regards to money in joint funds or from a firm carrying on business within the jurisdiction or on money from a bank account.
● Ada Johnson is a solicitor and barrister-at-law. E-mail address is: email@example.com