HOME   UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2009

 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA-GHANA

_________________________________________

 

CORAM:      ATUGUBA J.S.C.  (PRESIDING)

AKUFFO (MS) J. S C.

ANSAH, J.S.C.   

OWUSU  (MS) J.S.C.

BAFFOE-BONNIE J.S.C.

 

CIVIL MOTION

№ J5/15/09

                                                                             22ND APRIL, 2009

THE REPUBLIC

 

VRS

 

THE HIGH COURT, KOFORIDUA

EX-PARTE: AUGUSTUS OSAE-AKONNOR            …      APPLICANT

 

SAMUEL AGYEI                                                    …      INTERESTED PARTY

 

 

 R U L I N G

 

OWUSU (MS), J.S.C.:-

 

The Interested Party in this application issued a writ of summons in the Respondent’s court, Koforidua for the reliefs endorsed thereon as follows:

        i.            “An order directing the Defendant to return Mercedes Benz S.500 with Chassis No. WDBNG84J5A460855 and BMW 745 LI with Chassis No. WBAGN6356DS56067 or their market value of US$186,000.”

 

      ii.            “Recovery of US$6,000 being the outstanding balance on Mercedes Benz S.500 with Chassis No.WDBUF70JX5A787505.”

Accompanying the writ was a statement of claim setting out the facts upon which the claim is based. The writ and statement of claim were filed on 15/12/08.

On that same day, counsel for the plaintiff filed an application ex-parte for absconding warrant and an order for preservation or alternatively for provision of security against Judgment about 40 minutes after the writ has been filed.

The application was moved on the very day that it was filed and before the Applicant herein could even enter appearance to the writ of summons.

In the affidavit in support, the applicant averred in particular that –

        i.            “The defendant is ordinarily resident in London, United Kingdom”

 

      ii.            “My information is that the Defendant intends to leave the Jurisdiction of the court particularly as he became aware that I am chasing him for my cars and money”.

 

 

    iii.            If the Defendant is not ordered to surrender the vehicles for preservation pending the hearing of the case or in the alternative the Defendant is not made to provide. Security against Judgment it will be nigh impossible for me to prosecute this claim and possibly execute Judgment”.

 Having heard the application, the trial Judge ruled as follows:

the Respondent is ordered by this court to come to the court and surrender all the three (3) vehicles stated in paragraph 4 of the statement of claim or in the alternative deposit an amount of $192,000.000 with the Registrar of this court the security against any Judgment that may be given any Judgment that may be given in respect of this case should the Defendant/Respondent find himself outside the Jurisdiction of this court at the time of trial.  By this the court is issuing a bench warrant (sic) for the arrest of Defendant and present before this court at the next opportunity”.

What the applicant has prayed for is absconding warrant but not bench warrant as ordered.

On 16/12/08, the applicant herein then Defendant, was present in court.  This is what transpired in the court:

“The Defendant’s is in court but has refused to obey the order of this court.  The Defendant’s Lawyer prays for bail for the Defendant.

By court: --------------------------------------------------------------------------

Before considering the application for bail for the Defendant, he is ordered to release the E500 Mercedes Benz car to the Registrar of this court and deposit an amount of US$ 186,00.00 with this court in compliance with the order of the court given yesterday ----------------,”

The case was then stood down to allow the Defendant and the Court Warrant Officer to go to Adenta to arrange for the money to be brought to the Registrar as security in compliance with the order of the court made the previous day.

Failing to deposit the physical amount of $186,00.00, the Defendant was ordered to deposit land title certificate of a landed property the value of which is to the tune of $186,000.00 in the court registry as counsel for the Defendant prayed. The title certificate was to be in the name of the Defendant or with an undertaking form the original owner of the property.

Counsel’s prayer for bail for the Defendant was to be considered if these conditions were fulfilled. At 3:05pm, when the court was informed that the conditions had been fulfilled, the Defendant was granted bail in the sum of GH¢75,000 with two sureties.  In addition, he was to deposit his two passport pictures with the Registrar and also ordered to report to the registrar once every two weeks until the court otherwise directs.

It is the orders of the 15th and 16th December that the applicant is praying for an order of this court directed to the High Court, Koforidua presided over by His Lordship Mr. Justice Kossi Efo Kaglo to remove same into this court for the purpose of being quashed.  The application seeks further orders for Direction and Prohibition to prohibit His Lordship K. E. Kaglo from further hearing the case before him.  The grounds on which the application is based are –

a.      “Breach of the rules of natural Justice.”

b.     “Want of Jurisdiction to order the attachment and preservation of the applicant’s vehicle without giving the Applicant a hearing.”

c.      “Error of law on the face of the record.”

d.     “Disregard of the rules of court that rendered null and void the order for absconding warrant to issue together with the order of interim preservation.”

 

 

The facts on which the plaintiff’s claim is based are simple and straight forward.  By an agreement between him and the Defendant, he entrusted two vehicles Mercedes Benz S500 and BMW which he had shipped to Ghana to the Defendant for him to sell them for him at $93, 000.00 and $94,000 respectively and the proceeds paid to the plaintiff.

A third vehicle, Mercedes E500 was sold to the Defendant for his personal use for $65,000.00.  The agreement was that the Defendant was to pay him part of the purchases price and use the balance to clear the remaining two vehicles.  According to the plaintiff, the Defendant took delivery of the 3 vehicles and kept the E500 Mercedes Benz which he has been using, still unregistered.  This agreement was made in April 2007.  In August 2007 the Defendant remitted $12,000.00 to the plaintiff through his (plaintiff’s) brother in the USA.  A long time thereafter when he did not hear from the Defendant he came to Ghana to check on the 2 other vehicles.

When in Ghana, the Defendant failed to pay for the balance of the cost of the Benz E500 which he bought and also account for the two other vehicles.

Arguing the application, counsel for the applicant conceded that the prayer for absconding warrant in the ex-parte application was in conformity with the rules i.e. Order 73 rule I (1) and therefore has no quarrel with that.  His complaint is that the second limb of the application i.e. order for preservation of the vehicle under order 25 rule 2(1) of the High Court (civil procedure) Rules C.I.47 should have been applied for on notice to the Defendant in this case.  His submission is that Order 25 rule 2 (1) read in the light of order 19 rule 1 (3) of C. I. 47 makes it mandatory that such application must be on notice.

 

 

Order 25 rule 2 (1) which deals with applications for detention, preservation of property reads as follows;

On the application of any party to a cause or matter, the court may make an order for the detention, custody or preservation or any property which is the subject mater of the cause or matter or in respect of which any question may arise in the action or may order the inspection of such property in the possession of a party.”

Order 19 rule I (3) demands that “except where these rules otherwise provide, no motion shall be made without previous notice to the parties affected.”

Counsel therefore submitted that in so far as the order for preservation was made in the ex-parte application, the audi alteram partem principle of natural justice was breached as the Applicant was denied the right to be heard.  To buttress his point counsel referred to the case of BARCLAYS BANK VRS GHANA CABLE CO. LTD [1998-99] SCGLR I, the head note of which states inter alia that;

“A court has generally no Jurisdiction to proceed against a party who has not been served--

Again, it is the case of the applicant that on 16/12/08 when the Defendant appeared before the court, the learned Judge breached the audi alteram partem rule by not hearing his side of the matter in violation of the rules.

Counsel referred to Order 73 rule (1) under which the application for absconding warrant was taken.           

He submitted that in the trial Judge’s own words that he has “taken a serious view of the conduct of the Defendant,” he condemned him without giving him the chance to defend himself. 

Counsel also complaints of error of law on the face of the record –

        i.            “In assuming Jurisdiction to hear the application for interim preservation ex-parte” ------

 

      ii.            “In failing to ensure that mere allegation against the Applicant as contained in the Affidavit in support of the interested party’s Application (EAA-3) were substantiated before proceeding to deprive the applicant of his fundamental human rights as enshrined in Article 14 (1) and 18 (2) of the constitution of 1992.”

         

    iii.            “Failing to let the Applicant show cause as to the unsubstantiated allegations against him concerning his being about to abscond or delaying any Judgment that may be given against him.”         

 

    iv.            “Imposing onerous conditions before and after granting bail to the Applicant which were not sanctioned by the Civil Procedure Rules C. I. 47.”

Relying on the case of THE REPUBLIC VRS. HIGH COURT, ACCRA; EX-PARTE COMMISSIONER ON HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE (ADDO INTERESTED PARTY) [2003-2004] SCGLR 312 Counsel submitted that the errors of law on the face of the record clearly show that the learned Judge acted in breach of the provisions of the constitution and mandatory provisions of orders 19rule 1 (3) 25 rule 2 and 73 in its entirely.

Ending his case, counsel submitted that disregard for these rules of court rendered the order for absconding warrant to issue and the order for interim preservation of the vehicle null and void.         

In opposing the Application, the Interested Party denied that the trial Judge breached the audi alteram partem rule.  In his affidavit in opposition, he averred that the        application is brought in bad faith as the Applicant on 16/12/08 was represented by counsel who was heard by the court. That it was on his own plea for bail and provision of adequate security that the Applicant was admitted to bail.

Relying on his affidavit in opposition, the Interested Party in his statement of case dwelt extensively on what allegedly took place on 15/12/08 in the house of the Applicant when a court bailiff and court warrant officer sought to enforce the orders of the court made on the same 15/12/08.

From their own statement, as late as 10:00pm the court officers were in the house of the Applicant seeking to enforce the order for absconding warrant.  When they did not succeed they went back to the house as early as 2:00am the next day to effect the arrest of the Applicant. 

On the 16/12/08 when the Applicant’s counsel failed to convince the court as to the preparedness of his client to submit to Judgment, the court made the orders as captured in Exhibit EAA-5.

In a supplementary affidavit filed by the interested party, he attached excerpts from the proceedings of 16/12/08 depicting interactions of both counsel and the Judge.

Order 19 rule 1 (3) already stated, requires that all motions in pending proceedings shall be made with notice to the parties affected except where the Rules otherwise provide.  It is for this reason that counsel submits that the application under Order 25 (2) should have been on notice to the Defendant.  From the record, when the orders of 15/12/08 were made, the writ of summons had not been served on the Defendant for him to even enter appearance.

Therefore, there was no way he could be given a hearing in the application for the order for the preservation of the vehicle.  Consequently, the court under sub-rule 1 (4) should have either dismissed that part of the motion which the rules do not permit that it should be made ex-parte or adjourn the hearing in order that the notice may be given upon such terms as it considers just.

 

 

By granting the application, the Court acted ultra vires and the orders made are therefore null and void.

Counsel for the interested party in opposing the application urged it on the court that under order 19 (3) the application could be made ex-parte.

Order 19(3) states that –

“Subject to rule 1 sub rule (3) an application by motion may be made ex-parte where any of these Rules provides or where having regard to the circumstances, the court considers it proper to permit the application to be made. This rule relates to applications permitted to be made exparte.

The applicant’s counsel submitted that in granting the application without hearing the Defendant, the court breached the audi alteram partem rule and for that reason the order for preservation of the vehicle is amenable to certiorari. In the case of BARCLAYS BANK OF GHANA LTD VRS GHANA CABLES CO LTD and OTHERS, this court per Acquah JSC as he then was, Charles Hayfron-Benjamin JSC concurring held that: “ A court has generally no Jurisdiction to proceed against a party who has not been served---”

The facts in this case are not an all fours with the instant case but the principle I think is applicable in the circumstances of this case.  In the case under reference, the complaint of the Defendants was that they were never served with the writ of summons and therefore prayed the court to set aside the final Judgment entered against them under order 14 Rule 1 of LN140A as amended by L.I. 1129.

In ordering the Defendant to surrender the three (3) vehicles without hearing him when order 25(2) read together with order 19(1) (3) makes it mandatory for the application to be heard on notice, the court breached  the audi alteram partem rule and for that reason,  an order for certiorari will issue. See the case of THE REPUBLIC VRS. HIGH COURT, BOLGATANGA; EX-PARTE: HAWA YAKUBU [2001-2002] SCGLR 53.

As for the order of absconding warrant, counsel conceded that it was properly sought for under Order 73 (1) which reads as follows:

“a plaintiff may at the institution of an action or at any time before final Judgment, make an application ex-parte supported by an affidavit to the court for an order that security be taken for the appearance of the Defendant to answer any Judgment that may be given against the Defendant in the action where the amount involved in the action exceeds ¢5 million, and

a)     The Defendant has disposed of or removed all or part of the property of the Defendant from the country; or

 

b)     The Defendant is about to leave the country.”

Under sub-rule 2, the court may issue a warrant to bring the Defendant before the court to show cause why the Defendant should not give good and sufficient bail for the Defendant’s appearance where it is satisfied that the provisions in paragraph (a) or (b) of sub-rule (1) have been substantiated and that the execution of any judgment in the action against the Defendant is likely to be obstructed or delayed.

When the Defendant is brought before the court, but fails to show cause, the court shall order him to give bail for his appearance at any time while the action is pending until the execution or satisfaction of any Judgment that may be given against him in the action and the surety shall undertake to pay any money that may be adjudged to be paid by the Defendant in the action in default of the appearance of the Defendant.

In this application, the Applicant’s complaint is related to what transpired in court on the 16/12/08, when the Defendant appeared before the court.  When the Applicant appeared before the court on 16/12/08, the trial Judge in flagrant violation of the rules under order 73 rules 1 and 2, repeated the orders for preservation of the E500 Mercedes Benz and the deposit of the amount of $186,000.00. These orders were again made before the prayer for bail could even be considered instead of satisfying himself that the fact that the Defendant was about to leave the country as the plaintiff/applicant had averred in his affidavit in support of the application for absconding warrant has been substantiated. The absconding warrant is issued to bring the Defendant before the court to show cause why he should not give good and sufficient bail for his appearance.  This presupposes that he should be given the opportunity to at least state his case.

It is not enough for the applicant to aver without more in this case that he has information that the Defendant intended to leave the Jurisdiction. On what is the information based?  The applicant did not even aver that he believed the information he had was correct.

Where a High Court or a Court of Appeal acts ultra vires the constitution or an express statutory restriction imposed on it, whatever flows from that wrongful act is null and void and therefore amenable to certiorari and the court in the exercise of its supervisory Jurisdiction under Art. 132 of the constitution will remove same into the court for the purpose of being quashed.

Again, in violation of the rules the Applicant was denied the opportunity to be heard. It is only where the Defendant fails to show cause that the court shall order him to give bail for his appearance.

In the Interested Party’s supplementary affidavit in opposition, the excerpts attached clearly shows that when he appeared in court the giving of bail was the paramount consideration of the court. The Judge asked counsel for the Defendant –

“Are you now interested in giving bail to provide the security?”

In view of the court’s failure to call upon the Defendant to show cause why he should not be made to give bail, the grant of bail was unwarranted and same ought to quashed.

On the Errors of Law on the face of the record, we are of the view that these errors are those already referred to in Counsel’s earlier submissions and we need not dwell on them again.

with regard to the Applicant’s submission of a violation of his Constitutional rights, the relevant provisions referred to are Art. 14(1) which states that “Every person shall be entitled to his personal liberty and no person shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law-and Art. 18 (2).

Among the cases is 14(1) (c) where the person shall be deprived of his personal liberty “for the purpose of bringing him before a court in execution of an order of a court”.

If the order of the absconding warrant was made in accordance with the rule i.e. order 73(1) then that cannot constitute a violation of Art 14(1).

We wholeheartedly admit that in executing the court order, the Applicant’s right of privacy of his home was infringed upon. Art 18(2) of the Constitution, states that;

“No person shall be subjected to interference of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety …………………”

The court must register its disapproval for the manner in which the attempt was made to execute the absconding warrant.

Having succeeded in getting the application moved the same day that it was filed, the Plaintiff took steps to get it executed no matter when.

As late as 10:00pm, the court officers were in the Defendant’s house to effect his arrest at that unholy hour.

It is not for nothing that times are set for service of court processes on parties.   Therefore where a court official attempts to effect service outside these hours, he will be acting without authority.  I say without any misgivings that the haste with which the bailiff sought to effect the arrest of the defendant smacks not only of suspicion by constitutes abuse of the process which the court must condemn in no uncertain terms.

On the whole, the Applicant has succeeded in satisfying the court that this is a proper case in which the orders sought for must be granted.

Consequently, the orders made on the 15th and 16th December regarding the preservation of the vehicle and the grant of bail with its attendant conditions are to be removed into this court for the purpose of being quashed and same are hereby quashed.

The Trial Judge is hereby further prohibited from further hearing the case titled SAMUEL AGYEI VRS. AUGUSTUS OSAE AKONNOR, now pending before him.

 

 

    R. C. OWUSU (MS)

(JUSTICE OF THE SUPREME COURT)

 

     W. A. ATUGUBA

(JUSTICE OF THE SUPREME COURT)

 

  S. A. B. AKUFFO (MS)

(JUSTICE OF THE SUPREME COURT)

 

        J. ANSAH

(JUSTICE OF THE SUPREME COURT)

 

  P. BAFFOE-BONNIE

(JUSTICE OF THE SUPREME COURT)

 

 

 

COUNSEL:

 

ENOH-AMAH ANDOH FOR THE APPLICANT.

K. AMOAKO ADJEI FOR THE INTERESTED PARTY.

 

 

 
 

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