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IN THE SUPERIOR COURT OF
JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2018
GHANA COMMERCIAL BANK VRS
EASTERN ALLOYS COMPANY LIMITED ,
WORLD PRAYER CENTRE, DELA
AKPEY CIVIL APPEAL NO. J4/59/
2017 4THJULY, 201
CORAM:
DOTSE, JSC (PRESIDING) YEBOAH,
JSC BAFFOE-BONNIE, JSC APPAU,
JSC PWAMANG, JSC
Execution - Order for the
judicial sale -
Stay of execution - Writ of
Fieri Facias (Fi.Fa) - Whether
defendants application for a
stay of execution and to be
allowed to pay back the judgment
debt in installments
after order of execution -
Whether the judgment
exceeded the amount claimed by
the plaintiff in its writ of
summons - Whether sale of the 1st
Defendant’s immoveable property
was illegal and void since
movable plant and machinery
which were charged as security
for the loan were not attached
HEADNOTES
The defendants having failed to
file a statement of defence, the
Plaintiff applied for and
obtained a judgment in default
of defence. The learned trial
Judge entered judgment in the
sum of ¢4,055,763,059.00 plus
“interest on the said sum in
accordance with C.I. 52” against
the defendants. The plaintiff
filed an entry of judgment in
the sum of ¢4,252,888,145.26;
or in the alternative an order
for the judicial sale of the 1st defendant’s
factory premises. The defendants
then applied for a stay of
execution and to be allowed to
pay back the judgment debt in
installments. Apparently while
this application was pending the
plaintiff filed a precipe to
seal a writ of Fieri Facias
(Fi.Fa) directed at the deputy
sheriff of the High Court to
attach the following properties
of the judgment debtors: the
factory premises of the 1st defendant
company, the plants and
machinery of the 1st defendant
company and the properties of
the directors of the 1st defendant
company. In the result only the
factory premises of the 1stdefendant
company was attached on an
application made for an order of
reserved price of that
property. The forced reserved
price was given as
GH¢2,985,701.00. In the mean
time the trial court granted the
motion for stay of execution and
payment by installment adding
that the usual default clause
applied.-
HELD :-
We therefore dismiss the preliminary
legal objection and hold that
the appeal being against a final
decision of the Court of Appeal
was filed within time. Same is
accordingly dismissed, having
considered the submissions
contained in the statements of
case of both counsel as well as
the appeal record, we are of the
opinion that the appeal herein
must fail and same is
accordingly dismissed. We
hereby affirm in its entirety
the judgment of the Court of
Appeal dated 17th
December 2015.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, 1996,
(C. I. 16) Rules 8 (1) (a) and b
High Court (Civil
Procedure) Rules, 2004 C. I. 47
Order 44 Rules 2 (3)
CASES REFERRED TO IN JUDGMENT
Republic v High
Court, (Fast Track Division
Accra): Ex-parte State Housing
Co. Ltd. (No.2) –
(Koranten-Amoako - Interested
Party) [2009] SCGLR 189 at 194
Halle & Sonne S. A
v Bank of Ghana [2011] 1 SCGLR
383
Bosompem & Others v
Tetteh Kwame [2011] 1 SCGLR 397
at 398
Nkawie Stool v
Kwadwo (1957) 1 WALR 241
Pomaa & Others v
Fosuhene [1987-88] 1 GLR 244-265
SC
Francis Assuming &
48 Others v Divestiture
Implementation Committee & Anor
[2008] 3 GMJ,
Amarkai Amarteifio
v Ananag Sowah, Suit No. C.A.
J4/57/2017, dated 25/10/2017
Mensah v Bimpeh
[1980] GLR 141.
Standard Bank
Offshore Trust Co. Limited
(substituted by Dominion
Corporate Trustees Ltd) v
National Investment Bank and
Others Suit No. C A . J4/63/2016
BOOKS REFERRED TO IN JUDGMENT
Civil Procedure in Ghana,
A Practical Approach Kwami
Tetteh’s
DELIVERING THE LEADING
JUDGMENT
DOTSE, JSC:-
COUNSEL.
HAROLD TIVAH ATUGUBA WITH
HIM EMMANUEL EWOOL FOR THE 1ST
DEFENDANT/RESPONDENT/APPELLANT.
FRANK BOAKYE AGYEN WITH
HIM REBECCA BOAKYE (MRS) FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
DOTSE, JSC:-
This is an appeal by the 1st
Defendants/Appellant/Respondents/Appellants,
hereafter 1st
Defendants against the judgment
of the Court of Appeal dated 17th
December, 2015. The said Court
of Appeal judgment, had allowed
an appeal by the
Plaintiffs/Judgment-Creditors
Respondents/Appellants/Respondents,
hereafter Plaintiffs, against
the decision of the High Court
dated 28th day of May
2012 which set aside the sale of
the 1st Defendants’
factory premises in satisfaction
of the Defendants debts owed the
Plaintiffs arising from a suit
filed by the plaintiffs against
the 1st Defendants.
It is against this Court of
Appeal judgment of 17th
December 2015 that this appeal
has been filed and hence this
rendition.
PLAINTIFFS WRIT AT THE HIGH
COURT AGAINST THE DEFENDANTS
Initially, the Plaintiffs
herein commenced an action in
the High Court, Accra Suit No.
BFS/22/06 on 10/3/2006 against
the following Defendants as
follows:-
1. Eastern Alloys
Co. Ltd
2. Michael Tetteh
3. Jonas
Akwensivie
4. Ebenezer Dzah
5. Theodore Tetteh
6. Felicia Tetteh
and in which the following
reliefs were claimed:-
1. Jointly and
severally against all the
Defendants for the recovery of
the sum of ¢3,187,518,414.00
being the outstanding balance of
the EDIF loan given to 1st
Defendant, which 1st
Defendant has failed or refused
to repay as of 31/12/2005.
2. The recovery
from the Defendants jointly and
severally of the sum of
¢427,709,841.52 being the
outstanding balance of the
short-term loan given to
Defendant, which 1st
Defendant has failed or refused
to repay as of 31/12/2005.
3. Interest on the
EDIF loan at the agreed rate of
15% from 31/12/2005 to the day
of final payment.
4. Interest on the
short-term loan at the agreed
rate of 28% per annum from
31/12/2005 to the day of final
payment.
5. Further or in
the alternative an order for the
judicial sale of the property
mortgaged or charged to
Plaintiff as security for the
debt to satisfy the debt.
Due to the complex nature
of the facts of this case, we
deem it appropriate to set out
the facts as per the rendition
of same contained in the
judgment of Korbieh JA, speaking
on behalf of the Court of
Appeal, when he summarised the
facts as follows:-
FACTS OF THE CASE
“The defendants having
failed to file a statement of
defence, the Plaintiff applied
for and obtained a judgment in
default of defence. The learned
trial Judge entered judgment in
the sum of ¢4,055,763,059.00
plus “interest on the said sum
in accordance with C.I. 52”
against the defendants. The
plaintiff filed an entry of
judgment in the sum of
¢4,252,888,145.26; or in the
alternative an order for the
judicial sale of the 1st
defendant’s factory premises.
The defendants then applied for
a stay of execution and to be
allowed to pay back the judgment
debt in installments. Apparently
while this application was
pending the plaintiff filed a
precipe to seal a writ of Fieri
Facias (Fi.Fa) directed at the
deputy sheriff of the High Court
to attach the following
properties of the judgment
debtors: the factory premises
of the 1st defendant
company, the plants and
machinery of the 1st
defendant company and the
properties of the directors of
the 1st defendant
company. In the result only the
factory premises of the 1st
defendant company was attached
on an application made for an
order of reserved price of that
property. The forced
reserved price was given as
GH¢2,985,701.00. In the mean
time the trial court granted the
motion for stay of execution and
payment by installment adding
that the usual default clause
applied.
On the 13/9/2011, the
trial court ordered that “the
Defendant’s property attached in
execution of the judgment of
this court shall now be sold by
public auction at a price not
less than GH¢2,104,706.00” which
had followed an earlier
application to reduce the forced
sale price since the earlier
forced sale price failed to
attract any buyer. After
several attempts by the
defendants to stay further
execution of the judgment had
failed the attached property was
sold by public auction to the 2nd
respondent. On the 15/2/2012
on the application of the
plaintiff, the trial court
granted it a writ of possession.
Then on the 20/3/2012, the
defendants filed a motion to set
aside the default judgment, the
writ of execution and the sale
of the 1st
defendant’s property. “
This motion was intitutled
as follows:
Ghana Commercial Bank
Ltd. -
Plaintiff/Judgment-Creditor/1st
Respondent
Vrs
Eastern Alloys Co. Ltd. &
5 others -
Defendants/Judgment/Debtors
Applicants
World Prayer
Centre
- 2nd
Respondent
Dela
Akpey
- 3rd
Defendant
with suit No. BFS 22/06,
but filed on 20th
March 2012. It is the Ruling in
respect of this motion which has
been appealed to the Court of
Appeal and thereafter to this
court, and hence this rendition.
The facts as set out by
the Court of Appeal judgment
continue as follows:-
”Some of the grounds for
the prayer to set aside the
judgment etc were the following:
that even though the plaintiff
had asked for only
¢3,187,518,413.00, the trial
court had given it judgment in
the sum of ¢4,055,763,059.00 and
awarded interest on the judgment
in accordance with C. I. 52 and
cost of GH¢40,000.00; that the
judgment exceeded the amount
claimed by the plaintiff in its
writ of summons which was bad in
law; that this entitled the
defendants to have the judgment
set aside ex debito justitiae;
that after the judgment the
plaintiff was paid several part
payments of the judgment debt
but failed to file a revised
entry of judgment thus
occasioning a grave miscarriage
of justice as it denied the
defendants notice of what their
true indebtedness was to the
plaintiff; that the 1st
defendant’s plants and
machinery were valued at the
forced sale of GH¢1,831,200.00
which was enough to satisfy the
remaining judgment debt, post
judgment debt interest and cost;
that in so far as the defendants
had movable plant and machinery
which were charged as security
for the loan and whose value was
in excess of the outstanding
judgment debt, the sale of the
defendants’ immovable property
was illegal and void; that the
auction sale contravened the
Auction Sales Act, 1989 (PNDCL
230) as no notice of the sale
was given to the general public.
As would be expected, the motion
was vigorously opposed by the
plaintiff. Some of the reasons
assigned by the plaintiff in its
affidavit in opposition were as
follows: that it followed due
process in obtaining the
judgment; that the entry of
judgment accorded with the
judgment pronounced by the court
which was not in excess of the
amount endorsed on the writ of
summons; that the 1st
defendant never objected to
reserved price for its immovable
property when the plaintiff
sought the same from the court
rather than the plant and
machinery; that the auction was
done in accordance with the
rules of court; that the
defendants’ application was out
of time.” Emphasis supplied
In it’s ruling dated
28/5/2012, the trial court
held as follows: that the
judgment debt figure entered by
the trial court was a mere
clerical error that could and
had indeed been corrected;
that the attachment and sale of
the 1st defendant’s
immovable property was illegal
since the plaintiff always had
notice of the defendants’
movable property which, in law,
should have first been attached
and sold or a notification
given to the court that there
was no sufficient movable
property to satisfy the judgment
debt. The trial court
therefore set aside the sale of
the defendant’s factory
premises.
The cardinal and core
facts to take note of from the
above quotation are the
following:-
1. The Plaintiffs
applied for and obtained in the
High Court against the
Defendants therein in the
original suit, default judgment
in the sum of ¢4,055,763,059.00
plus interest in accordance with
C. I. 52.
2. Following the
Plaintiff’s filing of an entry
of judgment, in the sum of
¢4,252,888,145.25 and or in
the alternative an order for the
judicial sale of the 1st
Defendants factory premises,
they took relevant steps to
attach properties of the 1st
Defendants in satisfaction of
the judgment debt.
3. The 1st
Defendants applied for stay of
execution and payment of the
judgment debt by instaments.
4. After several
attempts by the 1st
Defendants to stay further
execution of the judgment had
failed, the attached factory
premises of the 1st
Defendants was sold by public
auction to the 2nd
Defendants.
5. On 15/2/2012
the Plaintiff was granted a writ
of possession.
6. On 20/3/2012,
the 1st Defendants
filed a motion to set aside the
default judgment, the writ of
execution and the sale of the 1st
Defendants property.
7. One of the core
grounds inter alia, upon which
the above application was
grounded was that, in so far
as the 1st Defendants
had movable plant and machinery
which were charged as security
for the loan, the sale of the 1st
Defendant’s immoveable property
was illegal and void.
8. On the
28/5/2012 the trial High Court,
delivered its ruling and inter
alia set aside the sale of the
defendant’s factory premises on
the basis that the
plaintiff’s had notice of the
defendant’s movable property,
which in law should have first
been attached and sold.
APPEAL TO THE COURT OF APPEAL BY
PLAINTIFFS AND DECISION OF THE
COURT
It was as a result of the
ruling of the High Court, dated
28/5/2012, that the Plaintiffs
successfully appealed that
decision to the Court of Appeal
which concluded its decision as
follows:-
“I will now go on to deal
with the 1st
defendant’s cross-appeal or
appeal for variation of the
ruling. The normal practice is
for the appellant (or
cross-appellant in this case) to
either take the grounds of
appeal individually or in
combinations or state clearly
that all grounds are being
argued together and then proceed
to argue them. In the case on
hand it is not clear whether
learned counsel for the 1st
defendant was responding to the
arguments of his learned friend,
counsel for the plaintiff or was
arguing his cross-appeal
directly. But whatever the
case I see no merit in any of
his arguments. The appeal for
variation of the ruling is
therefore hereby dismissed in
its entirety.
In conclusion, save ground F,
the plaintiff’s appeal succeeds.
The order of the trial court,
setting aside the attachment and
auction sale of the 1st
defendant’s factory premises, is
hereby set aside and the said
attachment and auction are
hereby restored. The Certificate
of Purchase of the 2nd
respondent herein is also hereby
restored. The rest of the ruling
is hereby affirmed.”
Aggrieved by the decision
of the Court of Appeal, the 1st
Defendants appealed against the
decision to this court with the
following as the grounds of
appeal:-
1. “That the
judgment of the Court of Appeal
is not supported by the weight
of evidence on the record.
2. The Court erred
in holding that the attachment
and sale of 1st
Defendants immovable property
and not his moveable first is a
mere irregularity and not an
illegality.
3. The Court erred
in restoring the sale and the
Certificate of Purchase.
4. Further grounds
to be filed upon the receipt of
a copy of the judgment.”
PRELIMINARY POINT OF LAW RAISED
BY THE PLAINTIFFS
Upon receipt of the 1st
Defendants statement of case
filed, even though the
Plaintiffs argued the appeal on
the merits, they nonetheless
raised a preliminary legal
objection in the following terms
to the entire appeal process
embarked upon by the 1st
Defendants;-
1. “In accordance
with Rule 7 (1) of the Supreme
Court Rules, 1996 (CI 16) as
amended, the
Plaintiff/Appellant/Respondent
at the hearing of the Civil
Appeal intends to rely on a
preliminary objection.
2. The ground of
objection is as follows:-
a. That this Honourable
Court lacks the jurisdiction to
hear this Appeal because the
Appeal being Interlocutory in
nature was filed out of time.”
Before we set out the
arguments of learned counsel for
the Plaintiffs in respect of
this preliminary legal
objection, we wish to commend
learned counsel for the parties,
namely Harold Tivah Atuguba and
Frank Boakye Agyei for their
high scholastic work exhibited
in the statements of case filed
for and on behalf of the
Plaintiffs and 1st
Defendants respectively.
ARGUMENTS IN RESPECT OF THE
PRELIMINARY OBJECTION
In substance, learned
counsel for the Plaintiff,
contends in support of the
argument in respect of the
preliminary legal objection as
follows:-
That the final judgment
entered and dated 24th
May 2006 determined the
matters of substance as to
whether the 1st
Defendants owed the Plaintiffs
or not. In further contention,
learned counsel contended that,
the final rights of the parties
were determined that, the
Plaintiffs were adjudged to be
the judgment creditors and the 1st
Defendants the judgment debtors
following the judgment of 24th
May 2006. According to
learned counsel for the
plaintiffs, since no appeal was
filed against the said judgment,
what was left to determine was
as to how the judgment creditor,
i.e. the Plaintiffs would enjoy
the benefits of the said
judgment. Emphasis
In support of the above
propositions and arguments, a
plethora of cases had been
referred to in support of same.
Some of these cases are:-
1. Republic v High
Court, (Fast Track Division
Accra): Ex-parte State Housing
Co. Ltd. (No. 2) –
(Koranten-Amoako - Interested
Party) [2009] SCGLR 189 at 194
2. Halle & Sonne S. A v
Bank of Ghana [2011] 1 SCGLR 383
3. Bosompem & Others v
Tetteh Kwame [2011] 1 SCGLR 397
at 398
just to mention a few.
Based on the above
decisions, learned counsel
therefore argued conclusively
that, the Ruling of Tanko Amadu
J (as he then was) dated 28th
May 2012 which set aside the
attachment and sale of the 1st
Defendants’ factory premises,
which execution process was
commenced based on the
judgment of 24th May
2006, being a Ruling in respect
of an execution process was
interlocutory in nature and the
appeal was interlocutory in
nature as well.
Learned counsel by that
reasoning argued that, the
appeal heard by the Court of
Appeal against the Ruling of the
High Court, dated 28/5/2012 was
an interlocutory appeal and
therefore its judgment is also
interlocutory in nature and the
fact that judgment was given on
an interlocutory appeal did not
transform the Court of Appeal
judgment into a final judgment.
Learned counsel then
referred to Rules 8 (1) (a) and
b of the Supreme Court Rules,
1996, (C. I. 16) as amended and
concluded that, since the 1st
Defendants, filed their Notice
of Appeal against the Court of
Appeal judgment, dated
17/12/2015 on the 21st
day of January 2016, which was
filed thirty five (35) days
after the delivery of the Court
of Appeal judgment, it was filed
out of time in particular
reference to Rule 8 (1) (a) of
the Supreme Court Rules.
The brief and incisive
submission of learned counsel
for the 1st
Defendants, Harold Atuguba is
that, in issues of this nature,
the contest for the
determination of these issues
has always been based on whether
a decision of the court is final
or interlocutory in nature.
Learned counsel for the 1st
Defendants further contended
that in resolving these issues,
the approach of this court has
over the years been based on
what has come to be termed as
the “nature of the application
approach” and the “nature of the
order approach”.
Leaned counsel also
referred to a plethora of cases
in support of his argument, and
some of these are:-
1. Nkawie Stool
v Kwadwo (1957) 1 WALR 241
which endorsed the nature of the
order approach as to whether a
determination is interlocutory
or final.
2. Pomaa &
Others v Fosuhene [1987-88] 1
GLR 244-265 SC – This also
applied the nature of the order
approach
3. Francis
Assuming & 48 Others v
Divestiture Implementation
Committee & Anor [2008] 3 GMJ,
- this also applied the nature
of the order approach.
4. See also
Halle and Sonns S. A. v Bank of
Ghana and Another,
supra where the court stated the
overwhelming endorsement of the
principle of the nature of the
order approach in the following
rendition:-
“It is not
that, a judgment if overturned
on appeal would be sent back to
the trial Court on the merits
that determines the question of
its finality. Rather, in
Ghana, the crystallised position
is that the determining factor
is whether or not the court’s
orders, by nature disposed of
the disputed issues between the
parties.” Emphasis
See also the recent
unreported decision of the
Supreme Court in Suit No. C.A.
J4/57/2017, dated 25/10/2017
intitutled, Amarkai
Amarteifio v Ananag Sowah,
where the nature of the order
approach has been endorsed and
applied.
In our respective opinion
the issue as to whether or not
the judgment of the Court of
Appeal is interlocutory or final
does not admit of any
controversy at all.
In view of the
overwhelming support and
endorsement of the nature of the
order approach, and also
because, the decision of the
High Court of even date, which
ended up in the Court of Appeal
was final, the appeal against it
to the Court of Appeal was
therefore an appeal against a
final decision.
Having delivered a final
decision, it is Rule 8 (1) (b)
of the Supreme Court Rules 1996
C. I. 16 which should be
applicable.
Out of abundance of
caution this Rule provides as
follows:-
8 (1) “Subject to the
provisions of any other
enactment governing appeals, a
civil appeal shall be lodged
within –
(a) twenty-one days,
in the case of an appeal against
interlocutory decision; or
(b) three months, in the
case of an appeal against a
final decision unless the court
below or the court extends the
period within which an appeal
may be lodged.” Emphasis
We therefore dismiss the
preliminary legal objection and
hold that the appeal being
against a final decision of the
Court of Appeal was filed within
time. Same is accordingly
dismissed.
SUBSTANTIVE GROUNDS OF APPEAL
PRELIMINARY REMARKS
We have observed a
phenomenon which has gradually
crept into our appellate
jurisdiction. This is that,
irrespective of the substance
and merit of the decision of the
Court of Appeal, parties
nonetheless decide to contest
the appeal. In order to reduce
the work load on this court, we
have decided to summarily
dismiss an appeal or grounds of
appeal whenever we are of the
view that the Court of Appeal
did not err in the consideration
of that ground of appeal or that
the appeal itself is bogus,
unmeritorious and clearly
mischievous.
In this respect, we have
critically considered the
grounds of appeal urged on us by
learned counsel for the 1st
Defendants. We further observe
that, even though learned
counsel has made very copious
submissions in his elaborate
statement of case, we do not
find any substance worth any
serious consideration in respect
of grounds 1 and 3 which state
as follows:-
1. “That the
judgment of the Court of Appeal
is not supported by the weight
of the evidence on record.”
3. The Court erred
in restoring the sale and the
certificate of purchase.”
In this latter ground, the
determination of ground 2 of the
appeal if successful would have
dealt with the issues based in
ground 3. We therefore consider
it as a surplusage.
We accordingly dismiss all
the arguments in respect of the
said two grounds of appeal.
Since we find that the judgment
of our brethren in the Court of
Appeal, per Korbieh J. A has
completely dealt with these
grounds, the judgment of the
Court of Appeal is therefore
affirmed in respect of these
grounds of appeal.
GROUND 2
The Court erred in holding that
the attachment and sale of 1st
Defendant immovable property and
not his moveable first is a mere
irregularity and not an
illegality
Arguments of learned counsel for
the 1st Defendants in
support of the above ground of
appeal
Since learned counsel
anchored his arguments on the
provisions of Order 44 Rules 2
(3) of the High Court (Civil
Procedure) Rules, 2004 C. I. 47
in support of this ground of
appeal, it is important that we
set out in full the said
provisions, which provide as
follows:-
“The immovable property of a
judgment debtor shall not be
levied in execution if the
judgment debtor shows that the
judgment debtor has sufficient
movable property within the
jurisdiction to satisfy the
judgment or order and cost.”
Emphasis
We observe that learned
counsel for the 1st
Defendants, faced with a dilemma
on the correct interpretation of
the above provisions has urged
this court to adopt a purposeful
reading of the entire order 44
of C. I. 47 which is that, the
essence of the provisions
therein is that at all
material times, the movables of
a judgment debtor are levied
before the immovable properties.
Indeed a reading of the
provisions of Order 44, for
example sub rule 2 (4) which
states that “where execution
is levied against immovable
property, there shall be
indorsed on the writ of
execution a statement that there
was not sufficient movable
property to satisfy the judgment
debt.” gives credence to
that proposition. Emphasis
As a matter of fact, the
above provisions give the
clearest of intentions that
where execution is to be levied
against properties of a judgment
debtor, the first point of
reference is in respect of
movable properties, and it is
when these are insufficient to
satisfy the judgment debt that
the judgment creditor will
proceed against immovable
properties.
In this instant, learned
counsel has been quite candid,
when he opined that, it is the
duty of the judgment debtor to
indicate that he has movable
properties to prevent a judgment
creditor from executing the
judgment against immovable
properties instead of the
movables.
The second issue raised by
learned counsel is the timing of
this notification to the
judgment creditor.
Based on the above
propositions, and Rules of
procedure, learned counsel for
the 1st Defendants
argued that once the judgment
creditor is aware of the
existence of movable properties
belonging to the judgment
debtor, he was estopped from
levying execution on the
immovable property of the
debtor.
ARGUMENTS OF COUNSEL FOR
PLAINTIFFS IN RESPECT OF GROUND
2
The crux of the arguments
of learned counsel on this score
is anchored on the timely
information by the judgment
debtor of the information to the
judgment creditor and the court
about the availability of
sufficient movables to satisfy
the judgment debt as well as the
conduct of the judgment debtor
in general.
In this respect therefore,
the evidence or information must
always be in the purview of the
judgment debtor, and it is they
who must bring this to the
notice of the judgment creditor.
This is how the Plaintiffs
responded in their statement of
case:-
“Since the availability
and existence or otherwise of
the movables of 1st
Appellant (1st
Defendants) was in the exclusive
purview of the Appellants it was
their duty under order 44 r. 2
(3) of C. I. 47 to inform the 1st
Respondent, (Plaintiffs herein)
or the Sheriff and even more
importantly the trial court that
the situation in 2002 concerning
the plant and machinery remained
the same”. Emphasis
As a matter of fact,
wisdom and prudence requires
that, the judgment debtor,
within whose knowledge the
existence of movable properties
exists and for whose benefit the
said execution of the movable
properties stands to benefit,
the debtor must at the earliest
opportunity that execution
processes have been commenced or
even anticipated, bring this
information to the attention of
the Judgment Creditor and the
deputy sheriff.
As has been referred to
supra, the 1st
Defendants were complicit in the
proceedings that terminated with
the sale of their factory
premises. This is because, even
though they had notice of the
judgment against them by their
filing of a motion on notice for
Stay of Execution and to be
allowed to pay by instalments on
23/6/2006, and filed several
other processes thereafter all
in an attempt to stay execution
or for Reserve price of the
properties, it was not until in
their affidavit in support of a
motion on notice for Stay of
Execution filed on 6/10/2011
that this issue of having
sufficient movables was raised
in a deposition as follows:-
“That I have also been
advised and verily believe that
it was wrong for the
Defendant/Applicant’s immovable
property to be attached when, as
indicated above, there is
moveable equipment worth more
than the outstanding
indebtedness.”
However, we observe that,
the entire application upon
which the above depositions was
founded, was however struck out
by the court as withdrawn by
order of the court dated 12th
December 2011 following it’s
withdrawal by the 1st
Defendant’s counsel, Mr. Toku.
We also observe that there
was a time lapse of over 5 years
when 1st Defendants
had notice of the executions and
when they first brought it to
their notice.
It should be further noted
that, since becoming aware of
the execution process
successfully embarked upon by
the Plaintiffs against the 1st
Defendants properties, instead
of taking prompt steps such as
are legitimate under law and
pursuant to the Rules of
Procedure, the 1st
Defendants proceeded to take
faulty steps, thereby
compromising their position and
in that regard waiving whatever
rights if any that they might
have had.
We have duly perused all
the plethora of cases referred
to us by both counsel in this
case in their statements of
case. We however observe that,
whilst these cases may be
appropriate, what is of
concern to us is the practical
meaning and effect of the
provisions in order 44 r. 2 (3)
of C. I. 47. Emphasis
Having apprized ourselves
of all the cases and
particularly Kwami Tetteh’s
authoritative textbook, “Civil
Procedure in Ghana, A Practical
Approach” we come out with the
following as a road map that a
judgment debtor desirous of
putting a damper on the sale of
his or their immovable
properties where there are
sufficient movable properties
must follow.
1. Immediately the
judgment debtor is aware of the
commencement of execution
processes against his immovable
where there are movables he must
notify the judgment creditor,
and the court about the
existence of that fact.
2. Since time is
of the essence, this
notification must be timely with
a list of the movable
properties, where located and
their valuation vis-à-vis the
judgment debt.
3. When this
process is ignored, the judgment
debtor must file an application
to either stop the sale of
immovable properties whilst
there are movables.
4. The judgment
creditor must comply with any
such information given him on
the existence of movable
properties.
We observe that, rather
than proceed in a systematic and
timely manner to ventilate their
rights if any, the 1st
Defendants proceeded in circles
without any concrete and
legitimate steps. In this
respect, we take note of the
fact that, indeed the 1st
Defendants took several faulty
fresh steps after becoming aware
of their rights under Order 44
r. 2 (3). In this respect, they
should be deemed as having
waived their rights if any.
In our considered opinion, our
brethren in the Court of Appeal
dealt very admirably with this
issue that it will be begging
the question to repeat them ad
nausem.
In this respect, we fully
endorse and apply the decision
of Edward Wiredu J, (as he then
was) in the case of Mensah v
Bimpeh [1980] GLR 141.
It is therefore clear
that, it is only the true and
real owner of property who can
bring this to the notice of the
Judgment Creditor and the court.
A lot of reference has
been made to the recent decision
of the Supreme Court in the
unreported case of Standard
Bank Offshore Trust Co. Limited
(substituted by Dominion
Corporate Trustees Ltd) v
National Investment Bank and
Others Suit No. C A .
J4/63/2016. However, our
understanding of the judgment is
that the non-compliance
complained of therein went to
capacity and not to irregularity
as was held by the Court of
Appeal in this case. Since
capacity is crucial and indeed
the backbone of Civil Procedure
than the type of irregularity
complained of in the
non-compliance to order 44 r. 2
(3), the said Standard Bank
Offshore Trust Co. Limited case
does not apply and is thus
irrelevant for the purposes of
this case..
CONCLUSION
Under the premises, having
considered the submissions
contained in the statements of
case of both counsel as well as
the appeal record, we are of the
opinion that the appeal herein
must fail and same is
accordingly dismissed.
We hereby affirm in its
entirety the judgment of the
Court of Appeal dated 17th
December 2015.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
HAROLD TIVAH ATUGUBA WITH
HIM EMMANUEL EWOOL FOR THE 1ST
DEFENDANT/RESPONDENT/APPELLANT.
FRANK BOAKYE AGYEN WITH
HIM REBECCA BOAKYE (MRS) FOR THE
PLAINTIFF/APPELLANT/RESPONDENT. |
