Execution-Procedure-Separate
judgment debts-Separate
applications for
garnishment-Application by
person claiming interest in
amount to be
garnished-Magistrates' Courts
(Civil Procedure) Ordinance,
section 67- Sheriffs, etc.,
Ordinance (Cap. 205),
section 87.
The plaintiff
obtained three judgments against
the defendant in the Magistrate
Court and later made
applications to garnish money in
the hands of the Army and
obtained orders nisi.
Some days before these
applications were filed Ojiku~
filed an application to be made
a party to the garnishee
proceedings, under section! 87
of the Sheriffs, etc., Ordinance
(Cap. 205). claiming that the
money due from the Army had been
assigned to him by the
defendant, the judgment-debtor
This motion and the garnishee
orders nisi came up
together. The Magistrate first
dismissed the applicant's motion
to be joined on h\'o grounds-(i)
because· the applicant had sworn
an affidavit that there were
garnishee proceedings before
they had begun, and (ii) because
it was one motion paper whilst
there were three suits not
consolidated; nevertheless the
Magistrate awarded the judgment
creditor and the
judgment-debtor, and the
garnishee, three sets of costs
at ten one and five guineas
respectively. Then the
Magistrate heard evidence on d
garnishment and made the orders
absolute in favour of the
judgment-creditor although a
captain testified for the
garnishee to an arrangement that
arm~ contracts given to the
judgment-debtor should be
carried out by Ojikutu (the
person who applied to be joined)
and that the moneys accruing
from the contract should be paid
to him.
Later Ojikutu
moved under section 10 of the
Magistrates' Courts (Appeals
Ordinance to set aside the
garnishee order absolute and to
be made a party to the~
garnishee proceedings; but the
Magistrate declined on the
ground that the, applicant was
not a party to those proceedings
and also that he could not
review~ his own order.
Ojikutu
appealed from this refusal and
from the earlier order against
him on the ground of injustice
and excessive costs. The Supreme
Court held that the costs were
excessive anti also that the
applicant should be admitted
into the garnishee proceedings.
And the judgment creditor
appealed, arguing that under!
section 87 of the Sheriffs,
etc., Ordinance (Cap. 205),
under which the applicant
Ojikutu sought to become a
party, only the garnishee could
inform the Court 0' the claim of
a third person and Ojikutu could
not make the application himself
' That section 87 reads as
follows:-
• .• ·87.
Whenever in any proceedings .
.') obtain an attachment of a
de]) it is suggested by the
garnishee that the debt sought
to be attached belong! to some
third person or that any third
person has a lien or charge upon
it the court may order such
third person to appear and state
the nature and particulars of
his claim upon such debt."
[pg 88]
The Court of
Appeal drew attention to section
&7 of the Magistrates' Courts
(Civil
Procedure) Ordinance which
provides that:-
•
.• The court
may in all causes and matters
make any order which it
considers necessary for doing
justice, whether such order has
been expressly asked for by the
person entitled to the benefit
of the order or not."
Held:
(1) Section 87 of the Sheriffs
and Enforcement of Judgments and
Orders Ordinance (Cap. 205),
does not exhaust the powers of
the Court: if by any means it
comes to the knowledge of the
Court that a third person has on
reasonable grounds a claim, it
is the duty of the Court in
equity to withhold a garnishee
order absolute and to direct an
inquiry. In view of the evidence
before the Magistrate it was
necessary to have such an
inquiry and for that purpose to
admit the respondent to this
appeal as a party in the
garnishee proceedings by making
some suitable order, which the
Magistrate had power to make
under section 67 of the
:Magistrates' Courts (Civil
Procedure) Ordinance (Cap. 124).
(2) The costs
allowed against the respondent
to this appeal were inordinate
and
unprecedented.
Cases cited:-
(1) Kojo
Pon v. Atta Fua; Privy
Council Appeal No. 48 of
1925.
(2)
Roberts v. Death,
1881, Q.E.D. 319.
Appeal by the
judgment-creditor, against the
decision of the Supreme Court
reversing the orders of the
Magistrate in garnishee
proceedings, the respondent to
the present appeal being a third
person who had applied to be
made a party:
W.A.C.A. No.
3618.
Appellant in
person.
F. R. A.
Williams, with him A.
O. Lawson, for
Respondent.
The
following judgments were
delivered:
Coussey,
I.A. This appeal raises
questions of practice in
garnishee proceedings.
The
proceedings took place in the
Magistrate's Court and there
were two other actions of
similar nature in which
garnishee orders were made at
the same time.
In the
present suit the plaintiff
obtained judgment against the
defendant on the 3rd March,
1950, for £150 with five guineas
costs. In two other suits on the
same day the same plaintiff
obtained judgment against the
same defendant for £100 and £4
14s. 0d. costs and £200 with
eight guineas costs
respectively.
As if the
three actions had been
consolidated, the respondent,
then applicant, filed one motion
paper with affidavit in the
Magistrate's Court on the 17th
March, for an order that he be
made a party to the garnishee
proceedings. He probably thought
that by filing one motion paper
in the three actions costs would
be saved. Actually it was not
until the 22nd March that the
judgment-creditor filed his
applications for the garnishee
orders. He cited the Command
Paymaster as garnishee and his
applications were listed on the
same day, the 22ncl March. On
that day a garnishee order
nisi was made by the Court
returnable for the 31st March,
the same day for which the
respondent had set down his
motion to be joined as a party.
The ground for the respondent's
application was that he claimed
to be beneficially entitled to
the amount sought to be
garnished in each case. He
claimed that the money had been
assigned to him by the debtor
and that the Garnishee held it
for the respondent.
On the 31st
March the respondent's motion
was first taken. His application
was made under section 87 of
Cap. 205, namely the Sheriffs
and Enforcement of Judgments and
Orders Ordinance. It was
dismissed by the learned
Magistrate on two grounds;
firstly, that the appellant had
sworn, prematurely, on the 17th
March that garnishee proceedings
'lad commenced, when in fact
they did not start until the
22nd March, and secondly, that
the respondent had made one
application without leave of the
Court on one motion paper in
three cases as if they had been
consolidated. It is to be
observed that although the Court
raised
[pg 88]
the question
as to why the three different
suits had been consolidated in
one motion paper, ill dismissing
the respondent's application,
costs of ten guineas to the
judgment creditor, five guineas
to the garnishee and one guinea
to the judgment debtor were
awarded against the respondent
in each matter as if there were
three separate applications
before the Court, although the
parties were identical in each
case.
The Court
then proceeded immediately to
hear and determine each
garnishee summons. A Captain
Petty appeared for the Paymaster
and he testified that there was
an arrangement that Army
contracts given to the
judgment-debtor should be
carried out by the respondent
and that the moneys accruing
from the contracts should be
paid to the respondent. The
Court, however, made the
garnishee order absolute in
favour of the judgment-creditor,
the present appellant.
On the 12th
April the respondent moved the
Court under section 10 of the
Magistrates' Courts (Appeals)
Ordinance for an order to set
aside the garnishee order
absolute of the 31st March and
for an order that the respondent
be made a party to the garnishee
proceedings. That application
was refused for the reason that
the proceedings on the order
absolute on the 31st March were
as between the
judgment-creditor, the
judgment-debtor and the
garnishee and that the appellant
was not a party to those
proceedings and that his mere
application, which was refused,
to be let in as a party did not
in law make him a party to the
proceedings so that he could
treat the order absolute as an
order made ex parte
against him; and further that
the Court could not review its
own order.
From the
refusal of that motion the
respondent appealed to the
Supreme Court and he also
appealed from the decision of
the 31st March which has been
referred to above. As to both
appeals he contended that the
costs awarded were excessive,
and that the decision refusing
his application to be joined as
a party in the garnishee
proceedings was unjust in that
the order refused was necessary
for doing justice.
As to the
order of the 31st March it was
argued further that the
Magistrate was prejudiced and
was wrong in holding that the
respondent's affidavit which
alleged that garnishee
proceedings had commenced on the
13th March was deliberately
untrue.
As to the
order of the 12th April it was
also argued that the learned
Magistrate, was wrong in holding
that the garnishee order
absolute was made ex-parte
so far as the respondent was
concerned.
The learned
Appeal Judge allowed the
respondent's appeal as to the
costs being, excessive and, as
to the second part of the
appeal, the learned Judge, after
reviewing the procedure held
that there had been an
indiscretion on the part 0 the
learned Magistrate and absolute
disregard of principle and that
justice required that the
parties be placed in ,statu
quo ante the garnishee
proceeding~ so that the
respondent would have the
opportunity of being admitted
into the garnishee proceedings
as he claimed. From that
judgment the judgment-creditor
has appealed to this Court.
I would
preface the rest of this
judgment by referring to Privy
Council App No. 48 of H)25,
Kojo Pan v. Atta Fua.
Dealing with
rule 2 of Order 5 of the Gold
Coast Supreme Court Civil
Procedure Rules which is
identical with section 67 of the
Nigerian Magistrates' Court
(Civil Procedure) Ordinance
(Cap. 124) and which reads:-
" The court
may in all causes and matters
make any order which I considers
necessary for doing justice,
whether such order has been
expressly asked for by the
person entitled to the benefit
of the order or not," their
Lordships remarked that the
Rules of Court are comprehensive
and the Lordships' first
consideration always is to
secure, if possible, that
substantial justice is done.
That may not always be possible
they said. There may
[pg 90]
conditions in local law
or in the rules which preclude
the possibility of getting round
technical obstacles and doing
complete justice. But in <the
case of the rules of procedure
in the Gold Coast Colony there
were no such obstacles. The
Court was invested with the
widest powers. This passage is
applicable in the present case.
The learned
Magistrate, by what were nothing
more than technical quibbles as
to the filing of one motion
paper in respect of three
garnishee matters, and also that
the respondent had sworn to his
affidavit prematurely, repelled
the respondent's application to
be joined as a party to the
garnishee proceedings. He could
have taken the motion papers as
being filed in an application in
one of the garnishee matters and
have ordered the other two to
stand over or he might have
directed the affidavit to be
re-sworn. Instead on these pure
matters of technicality he
refused the application of the
respondent.
It was at
this stage that the respondent
moved the Court to set aside the
garnishee order absolute and to
make the respondent a party to
the garnishee proceedings. This
was refused as already stated on
the ground that the garnishee
order absolute was not an ex-parte
order so far as the
respondent was concerned.
The
judgment-creditor-appellant now
argues that under section 87
(Cap. 205) by virtue of which
the respondent sought to be made
a party to the proceedings only
the garnishee could inform the
Court of the claim of a third
person and that the respondent
had therefore no locus standi
to make the application
himself. Now it is true that
section 87 provides that it if
is suggested by the garnishee
that the debt sought to be
attached belongs to some third
person then the Court may order
such third person to appear for
the claim to be investigated,
but that section does not
exhaust the powers of the Court.
That section and the successive
sections of Cap. 205 are
identical with the English Order
45, rules G and 7 and there is a
decision as to the powers of the
Court under those sections in
the case of Roberts v.
Death (2). It was there held
that if by any means it comes to
the knowledge of the Court that
a third person has on reasonable
grounds a claim it is the duty
of the court in equity to
withhold a garnishee order
absolute and to direct an
enquiry.
Now what
transpired in this case? After
hearing the evidence of the
garnishee, Captain Petty, who
for his own protection suggested
that the respondent had a claim,
the Court, instead of suspending
an order absolute called the
debtor to give evidence and then
held that it was satisfied from
the evidence presented that
there was collusion, or rather
an arrangement between the
debtor and the respondent to
defeat his creditors. That
finding was improperly made in
the absence of the respondent.
He had not been heard and he
might well have taken the view
mistakenly it is true, that an
order had been made against him
ex-parte.
I can find no
merit whatever in this appeal.
It is obvious that the
Magistrate, after the stage had
been set by criticising the
respondent's application on the
technicalities that he had
incorporated three matters in
one and had sworn to his
affidavit prematurely, adopted a
procedure destructive to the
very essence of justice by
refusing the respondent's
application and awarded costs in
favour of the judgment-creditor
in each of the three proceedings
on a scale unprecedented in
garnishee proceedings in a
Magistrate's Court. in English
practice the usual costs awarded
a judgment-creditor in garnishee
proceedings involving over £10
is £4. This amount has been
increased it is true since the
war, but an award of £12 12s.
0d. is entirely unwarranted
particularly in the case of the
judgment creditor who was
appearing in person in the Court
where he ordinarily discharges
his official duties as Registrar
of the., Court.
The learned
Magistrate seems to have treated
the fund in the hands of the
Paymaster as one to be
dissipated in favour of the
judgment-creditor and that was
entirely wrong. Happily the
learned Judge set these matters
right on appeal
[pg 91]
and I need only add that
there is no substance in the
appeal to this Court. For these
reasons, in my view, the appeal
should be dismissed with costs.
