A judgment is a final decision of the Court made in Court proceedings. An order is a decision that can be made during the course of the matter or in interlocutory proceedings BUT it can also be made in finality. Parties must comply with a judgment or order immediately unless otherwise stated.
A party who successfully pursued a claim against another and obtains judgment (judgment creditor) has a right to enjoy the “the fruits of his success (judgment)”. A judgment debtor is a person or entity who owes an amount of money to a judgment creditor that has not been paid or executed.
This article highlights the various modes of enforcing judgments.
Registration of Judgment
Registration of a money judgment is very important. A registered judgment operates as a charge upon the lands and rents of the judgment debtor from the date of judgment or at any time afterwards if he becomes seized, possessed or entitled for any estate or interest which binds him and anyone claiming under him, including next of kin. No judgment, decree or order can affect land unless the order is registered.
Upon registration, the Judgment Creditor is entitled to access the Statutory remedies. The judgment must be re-registered every three (3) years. If not, it will be null and void to purchasers, mortgagees, creditors and will not have preference against heirs and personal representatives.
The Remedies of Creditors Act Chapter 8:09 outlines the remedies available for enforcement and the Debtors Act Chapter 8:07 outlines the procedure for obtaining relief from a Judgment Debtor. The following modes of enforcement have also been organized in our Civil Proceedings Rules which include:
- Writ of Fieri Facias
- The Writ of Possession;
- The Writ of Delivery which may be (a) Specific or (b) an option to pay assessed value;
- Sequestration (Confiscation of assets);
- Sale of Land;
- Attachment of debts;
- Charging Orders;
- Appointment of Receivers;
- Judgment Summons; and
- Committal
How do I choose a mode of enforcement?
The form of judgment dictates the form of execution. An order for the recovery of land may be enforced only by a writ of possession whereas for money judgments, there are various methods of enforcement. The judgment debtor may be examined at any stage of the enforcement proceedings to establish his means and assets.
Writs of Execution
Writs of Execution include: Writ of Fieri Facias (Fi Fa), Writ of Possession, Writ of Delivery, Writ of Sequestration.
A party applying for a Writ of Execution will have to get the leave or permission of the Court in the following circumstances:
- Six (6) years have passed since judgment
- The party against whom the judgment was liable to be enforced is no longer liable to have it enforced
- Any statutory requirement to that effect
- The goods are in the hands of a court appointed receiver
- The Judgment Creditor is no longer entitled to enforce the judgment
- The Judgment Debtor has died and the goods are in the Legal Personal Representative’s hands
- The judgment was made subject to certain conditions
Such application for leave can be made ex-parte meaning, made by one party without notice to the other, but must be supported by affidavit. This supporting affidavit must prove that a demand was made for the judgment to be satisfied, that the applicant is entitled to enforce and that the person against whom enforcement is sought is liable to satisfy the judgment.
The Marshall executes the Writ at the Judgment creditor’s direction. The Marshall enters the premises and seizes the debtor’s personal property. Writs are valid for twelve (12) months from the date of issue and must be renewed at the end of the twelve (12) month period, renewal lasts for six (6) months.
A judgment for possession of land may be enforced by a writ of possession; a confiscation of assets order; or an order for committal to prison. Orders for Possession are far more common in civil proceedings (trespass, adverse possession, mortgage claims) but can also occur in matrimonial proceedings.
Attachment of Debts
Attachment of Debts is used where a creditor seeks to recover a debt owed by a debtor.
This mode of enforcement cannot be used for orders to pay money into court. A debt may be attached if:
• It is due or accruing to the debtor from the garnishee on the date the provisional order is served on the garnishee; or
• If it becomes due or accrues to the debtor on a date between service of the provisional order and the date of hearing.
The application for attachment of debts may be made ex-parte but must be supported by evidence. If the court considers that on the evidence the creditor is entitled, it must make the order. It can be made with no hearing.
The attachment of debt order can be made in relation to money standing to credit of any account of debtor in a bank or other institution. In a case where the account is jointly owned, the presumption is that parties owe it equally. Any person served may apply to determine the beneficial entitlement to the joint fund.
Charging orders can be used to enforce orders for maintenance, lump sum and costs provided that the amount is ascertainable. A charging order can be made on the judgment debtor’s land, securities, funds in court or beneficial interests under trusts and on certain other interests in the hands of trustees.
Submitted by: Rolana Cuffy-Bernard
Legal Officer 1
The Civil Legal Department
Legal Aid and Advisory Authority,
23 Stanmore Avenue, Port of Spain.
Contact: 638-5222
Email:
Website: www.laaa.org.tt
This article is not legal advice. Consult an Attorney for legal issues.
