By: Mrs. Phillipina Adelaide Akyea.
Managing Partner,
Zoe, Akyea & Co.
Introduction
People face numerous difficulties in recovering possession of immovable property or when attempting to eject occupants of immovable property following a judgment or order of a court.
This is the case predominantly when the property in question is occupied by persons other than the party sued. For people in such a conundrum, the question has always been, “What can I do? I have obtained a judgment, but I still cannot access my property”.
Legal Definition
A Writ of Possession is the “medium” by which a party in a suit may recover possession of immovable property in the enforcement or execution of a judgment or order of a court granted in their favour.
Order 43 Rule 3(1) of the High Court Rules (2004) C.I.47 (pertaining to the enforcement of judgments and orders) refers to a writ of possession as one of the methods of enforcement of a judgement or order of a court for the recovery of possession of immovable property.
The said rule states as follows:
“Subject to these Rules, a judgment or order for the recovery of possession of immovable property may be enforced by one or more of the following means:
- A writ of possession.”
This raises the question of how a successful party in a suit may practically recover their property using a writ of possession.
How to Execute a Writ of Possession.
To successfully execute a writ of possession, one must ensure that the steps below are undertaken:
- The Applicant must have obtained a judgment or an order to recover possession of an immovable property.
- The Applicant must serve all occupants of the immovable property with the notice of the execution proceedings whether they were parties to the action or not.
- The court must satisfy itself that every person in actual possession has received notice of the execution proceedings.
- The notice must be sufficient for any person in occupation to apply for a relief to which the person may be entitled.
Conclusion
It is important to note that a writ of possession must conform to the detailed description of the property as captured in the judgement or order, failing which the Writ of Possession can be declared incompetent.
More often than not, proceedings leading to the issuance of a writ of possession after a judgment in a substantive case may take longer than the time taken to determine the substantive suit.
Consequently, enjoying the fruits of such a judgement should not be hampered by non – compliance with the rules of court regarding execution by a writ of possession.
Additionally, to avoid obtaining an ‘unenforceable’ writ of possession, as much as practicable, a litigant seeking to recover the possession of immovable property should endeavour to join to the suit all interested parties, including all persons in actual occupation of the property, before the final determination of the suit.