Orders of the Court
In an attempt to provide you with the whole picture of how a claim is dealt with by the High Court in its civil jurisdiction, I have avoided detailed information on some interim measures, for instance application for declaration or injunction and ancillary matters among others. With time, consideration will be given to these.{{more}}
Last week I dealt with the trial which is the high point of a court case and I noted that it generally ends with a judgment that contains the order of the court. Anyone of the parties could appeal the judgeâs order but it is more likely that the unsuccessful party will appeal. According to Part 62 of CPR 2000, unless the court below or a single judge decides, an appeal does not act as a stay on the execution of a judgment. A party has the duty to comply with the orders of the court.
If he does not appeal the decision or comply with the judgeâs order there are certain actions available to the party whose judgment is not satisfied. In fact the vigilant lawyer would have already taken certain steps before the trial to secure the clientâs interest to make sure that the judgment is not a hollow one. Application could be made to the court for a freezing order to restrain a party from dealing with an asset located within the jurisdiction or from removing it from the jurisdiction.
After judgment is given and upon failure of the judgment debtor (the person liable to judgment) to pay, the judgment creditor (the person entitled to enforcement) may apply to the court to have an oral examination, that is, to find out about the income, assets and liabilities and the means by which the judgment debt may be paid by the judgment debtor.
The oral examination is done by an examiner, the registrar of the High Court or any judicial officer appointed by the chief justice. The order for the examination must be served personally on the judgment debtor (the examinee) at least seven days before the examination. The judgment creditor must file an affidavit of service not less than three days before the examination. Failure of the examinee to attend the examination could lead to further proceedings which may result in imprisonment.
The examinee is examined under oath and the statements made must be read back and signed at the end of the examination. If the parties agree to have the payments by installment then the court office must draw up the order to this effect. If the judgment is for a money judgment, the judgment creditor may ask for a financial account only on a form provided or may require it with the oral examination. The judgment debtor must reply within 14 days. If the judgment creditor is satisfied with the financial statement he may withdraw the application for an oral examination. This must be done by notifying the court office so that the oral examination may be cancelled. The court office must then notify the judgment debtor.
The court may enforce judgments for payment of money, the possession of land, the delivery of goods among others. It may enforce these in various ways, for instance it may enforce a money judgment by a charging order, a garnishee order, a judgment summon, order for seizure and sale of goods (fieri facias) or the appointment of a receiver. Next week I will continue with enforcement orders.
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