Civil Procedure - Garnishee -
Judgment/Debtor - Order 46 of C.
I. 47 -
The application seeks to
reverse orders granted at the
instance of the 1st
Defendants/Respondents - Whether
there are any debts owing to the
3rd
Defendant/Judgment/Debtor.herein
- Whether it is only the
Judgment/Debtor who is to be
examined, and that there is no
provision for any third party
examination as has been done
with a subpoena served on the 3rd
parties
HEADNOTES
This ruling has been premised
upon an application filed at the
instance of the 3rd Defendant/Applicant
herein seeking orders from this
court, pursuant to Article 134
(b) of the Constitution 1992 and
Rule 73 of the Supreme Court
Rules C. I. 16. This rule has
actually been amended by Supreme
Court (Amendment) Rules 2016
C.I. 93. The application seeks
to reverse orders granted at the
instance of the 1stDefendants/
Respondents herein made by Benin
JSC, presiding as a single Judge
of this Court dated 8thJune
2017 and 24th July
2017 respectively. -
HELD :-
In our opinion, the
application herein is a red
herring that learned counsel for
the Applicant has just
introduced as a further
illustration of his delay
mechanism. The application fails
and is accordingly dismissed in
its entirety. The oral
examination of the Applicant is
to continue.
STATUTES REFERRED TO IN JUDGMENT
1992Constitution Article
134 (b)
Supreme Court Rules C. I.
16. Rule 73
Supreme Court (Amendment)
Rules 2016 C.I. 93.
High Court (Civil
Procedure) Rules, 2004 C. I. 47
High Court (Civil
Procedure) Rules LN 140A
CASES REFERRED TO IN JUDGMENT
BOOKS REFERRED TO IN JUDGMENT
1970 Supreme Court
Practice Rules (known as the
white book)
DELIVERING THE LEADING JUDGMENT
DOTSE JSC:-
COUNSEL.
OSAFO BUABENG FOR THE
THIRD DEFENDANT/APPLICANT
GODFRED YEBOAH-DAME WITH
HIM MRS AFRIYIE ANSAH, CHIEF
STATE ATTORNEY, MRS STELLA BADU,
CHIEF STATE ATTORNEY AND MISS
ZEINAB AYARIGA, ASSISTANT STATE
ATORNEY FOR THE IST
DEFENDANT/RESPONDENT.
DOTSE JSC:-
This ruling has been
premised upon an application
filed at the instance of the 3rd
Defendant/Applicant herein
seeking orders from this court,
pursuant to Article 134 (b) of
the Constitution 1992 and Rule
73 of the Supreme Court Rules C.
I. 16. This rule has actually
been amended by Supreme Court
(Amendment) Rules 2016 C.I. 93.
The application seeks to reverse
orders granted at the instance
of the 1st
Defendants/Respondents herein
made by Benin JSC, presiding as
a single Judge of this Court
dated 8th June 2017
and 24th July 2017
respectively.
In order to put the nature
of the orders granted by our
respected brother Benin JSC in
proper perspective, we have
decided to quote in extenso the
relevant and applicable
proceedings and orders as made
by the court on 8th
June 2017 and captured per
Applicants exhibit AAW1 as
follows:-
“Upon reading the
affidavit of Victoria Adotey,
Assistant State Attorney at the
Attorney-General’s Department
filed on 2nd day of
June, 2017 praying that 3rd
Defendant be orally examined
regarding
i. Whether there
are any debts owing to the 3rd
Defendant/Judgment/Debtor.
ii. Whether 3rd
Defendant has any property for
satisfying the judgment of this
court dated 29th July
2014.
iii. Whether 3rd
Defendant has any means of
satisfying the judgment of this
court dated 29th July
2014 and
iv. The manner 3rd
Defendant used the money paid to
him by the Republic of Ghana.
Upon hearing Dorothy
Afriyie Ansah (Mrs) (Chief State
Attorney) with her Victoria
Addotey (Assistant State
Attorney).
IT IS HEREBY ORDERED THAT
the Application be granted as
prayed. Let the Judgment/Debtor,
Alfred Agbesi Woyome be
served with a copy of the order
as drawn up with a hearing
notice to appear before this
court on Thursday 29th
June 2017 to be examined by the
Judgment/Creditor by virtue of
order 46 r. 2 of C. I. 47”.
Emphasis
In view of the reference
and reliance of both learned
Counsel, Osafo Buabeng for the 3rd
Defendant/Applicant and the
Deputy Attorney-General, Godfred
Yeboah Dame for the 1st
Defendants/Respondents on the
provisions of order 46 rules 1
(1) and (2) and 2 of the High
Court (Civil Procedure) Rules,
2004 C. I. 47, we deem it really
expedient to set out the entire
rule as follows:-
“Order 46
Examination of Judgment Debtor
1(1) For the purpose of
garnishee proceedings under
Order 47, where a person has
obtained a judgment or order for
the payment of money by some
other person, hereinafter
referred to as “the judgment
debtor” the court may, on an
application made ex-parte by the
person entitled to enforce the
judgment or order, order the
judgment debtor or, if the
judgment debtor is a body
corporate, an officer of it, to
attend before the court and be
orally examined on the questions
(a) Whether any
debts are owing to the judgment
debtor,
(b) Whether the
judgment debtor has any property
or other means of satisfying the
judgment or order,
and the court may also
order the Judgment debtor or
officer to produce any books or
documents in the possession of
the judgment debtor relevant to
these questions at the time and
place appointed for the
examination.
(2) An order under
this rule shall be served
personally on the judgment
debtor and on any officer of a
body corporate, ordered to
attend for examination.
Examination of party
liable to satisfy the judgment
2. Where any difficulty
arises in or in connection with
the enforcement of any judgment
or order, other than a judgment
as mentioned in rule 1, the
court may make an order under
that rule for the attendance of
the party liable to satisfy the
judgment or order and for the
examination of that party on
such questions as may be
specified in the order and that
rule shall apply accordingly
with the necessary
modifications.”
Emphasis
SUMMARY OF ARGUMENTS OF LEARNED
COUNSEL FOR THE APPLICANT
Learned Counsel for
Applicant, Mr. Osafo Buabeng’s
submissions in support of his
arguments for the reversal of
Benin JSC’s orders dated 8th
June 2017 can be summarised
briefly as follows:-
i. Learned
Counsel took the court on a
historical excursion by
referencing the 1970 Supreme
Court Practice Rules, (known as
the white book) as well as the
1995 and 2012 editions as well.
Then reference was also made to
the repealed High Court (Civil
Procedure) Rules LN 140A,
particularly rules on
discoveries in aid of execution
of judgments.
We have looked at the
contexts in which these rules of
procedure have been applied in
the circumstances of this case.
We however satisfied that, these
provisions have no relevance
whatsoever to the instant
application of Order 46 rule 2
as applied by the learned single
Judge of this Court.
2. Secondly,
learned counsel for the
Applicant argued that, Order 46
of C. I. 47 provided for the
examination of a Judgment/Debtor
on examination under garnishee
proceedings. It was in this
respect that learned counsel
made historical references to
the old English and Ghanaian
Rules of procedure on the
subject. He further submitted
that orders 46 and 47 must be
read and or construed together.
3. Thirdly,
learned counsel for the
Applicant argued that, under
Order 46 as referred to supra,
it is only the Judgment/Debtor
who is to be examined, and that
there is no provision for any
third party examination as has
been done with a subpoena being
served on other 3rd
parties. He stated that, this
has given the impression that a
full blown trial is being
contemplated contrary to the
Rules of Procedure. Here again,
the historical references were
made to the 1970, and 1995 White
Books on the Supreme Court
Practice.
4. Learned counsel
for the Applicant next argued
that since garnishee proceedings
embarked upon earlier by the
Respondent herein had been
concluded, the order for the
oral examination of the
Applicant and proceedings aimed
at sale of his immovable
properties are not supported by
the current rules. Learned
counsel further argued that, the
questions set down by the single
Judge are irrelevant to the
execution processes embarked
upon by the Respondents herein.
5. Finally,
learned counsel argued that the
order for oral examination of
the Applicant infringes and or
violates the Applicant’s right
to privacy as provided for under
the Constitution reference
article 18 (2) thereof.
ARGUMENTS BY LEARNED DEPUTY
ATTORNEY-GENERAL IN RESPONSE
1. Learned Deputy
Attorney General contended that,
the Applicant has clearly
misconceived the breadth and
extent of Order 46. He argued
that, Order 46 which generally
permits the oral examinations of
judgment/debtors covers two
distinct and separate scenarios.
a. The first is
dealt with under Order 46 (1) –
which deals with garnishee
proceedings. He argued that,
that was not the rule the
Respondents invoked, and indeed
as can be seen supra, that was
not the rule under which Benin
JSC made the order of 8th
June 2017.
b. The second
scenario, according to the
incisive submissions of the
learned Deputy Attorney-General
is what has been clearly set out
in Order 46 r. 2 of C. I. 47,
supra. This is where a judgment
creditor encounters any
difficulties in the execution of
any judgment or order. Reference
to Applicant’s own exhibit AAWI
which makes it quite clear that,
this was the order invoked upon
by the Respondents and the order
under which Benin JSC granted
the order.
2. Learned Deputy
Attorney-General, next argued
that the contention that the
issues or questions set down by
the learned single Judge are
irrelevant and should be struck
out are not well made out.
Learned counsel argued that,
Order 46 (2) expressly provided
that in making an application
under the rule, the application
ought to be treated as if same
is made under Order 46 (1). In
other words, Order 46 (1) should
apply mutatis mutandis to
an application brought under
Order 46 (2). A reference to
Order 46 (1) would reveal that,
the rule specifically stipulates
the questions that should be
asked should be referable to the
following:-
a. Whether any
debts are owing to the judgment
debtor,
b. Whether the
judgment debtor has any property
or other means of satisfying the
judgment or order.
Learned Deputy
Attorney-General, therefore
argued that the arguments made
by learned Counsel for the
Applicant in this regard are not
supported by the Rules of
Procedure.
3. Learned Deputy
Attorney-General, next contended
that it is wholly untenable and
unmeritorious to argue that the
oral examination of the
Applicant violates his rights to
privacy as provided for in
article 18 (2) of the
Constitution.
In this respect, learned
Counsel for the Respondents
argued that, all such rights
provided for in the Constitution
are by themselves subject to any
interference “in accordance with
law and as may be necessary in a
free and democratic society.”
Learned Counsel further
submitted that, in addition to
the above, relevant
constitutional and statutory
provisions in article 126 (3) of
the Constitution and Section 102
(1) & (2) of the Courts Act,
1993, Act 459 provide that, “all
court proceedings unless
directed by specific
legislations are to be held in
public.”
He also made reference to
publications that are normally
made in respect of substituted
applications and published in
national dailies.
4. Learned Deputy
Attorney-General argued that,
the Applicant has been making
piecemeal arguments throughout
this execution process by the
Respondent. This is premised
upon the fact that this Court
has made various Rulings and
pronouncements upon the
execution processes embarked
upon by Respondents against
Applicant. Learned counsel urged
this court to treat as estoppel
the said Rulings and hold that
the Applicant is estopped from
re-arguing matters already dealt
with.
Finally, learned Deputy
Attorney-General urged this
court to refuse the application
and dismiss same as it is
unmeritorious, mischievous and
without any basis whatsoever.
REPLY BY COUNSEL FOR APPLICANT
By leave of the Court,
learned Counsel for the
Applicant replied that
applicability of Order 46 rule
2, clearly excludes a judgment
for the payment of money other
than Order 46 rule 1. He
contended that, it was in
respect of carrying out Fi-Fa
proceedings that the Applicant
raised issues, hence the resort
to the oral examination which
according to learned counsel is
not warranted under the Rules of
Court.
ANALYSIS
In our estimation, the
following two issues stand out
for resolution from the
processes filed by the parties
and their submissions in court.
These are:-
1. Whether the
Applicant’s rights to privacy
have been violated or infringed
by the orders made by the
learned single Judge of this
court dated 8/6/2017.
2. Whether the
invocation of Order 46 r. 2 of
C. I. 47 in the manner applied
by the single Judge is
appropriate.
ISSUE 1
Whether the Applicant’s rights
to privacy have been violated or
infringed by the orders made by
the learned single Judge of this
court dated 8/6/2017.
Article 126 (3) of the
Constitution 1992 provides as
follows:-
“Except as otherwise
provided in this Constitution or
as may otherwise be ordered by a
court in the interest of public
morality, public safety or
public order, the proceedings of
every court shall be held in
public.”
The same provision has
been re-emphasied in Section 102
(1) of the Courts Act 1993, Act
459 supra. It must also be noted
that, the Applicant has not
referred to any legislation
which prescribes the oral
examination of a judgment Debtor
in open Court and in terms as
provided for in order 46 r. 2.
As a matter of fact,
unless otherwise directed, court
proceedings in Ghana are
generally held in public because
of the constitutional provisions
referred to supra. It is in this
respect that order 7 rules 6 (1)
(2) (3) (4) and (5) of C.I. 47
provides that where a court
document or process is required
to be served personally, but
cannot be served for any reason,
the party may apply to the court
ex-parte to have that process
served by substituted service
and this can extend in some
cases to advertisement in the
media within the jurisdiction of
the court. See Order 7, rule (4)
(e) of C. I. 47.
We are therefore of the
opinion that the orders made by
the single Judge for oral
examination of the Applicant has
not infringed and will not
violate the Applicant’s
constitutional rights to privacy
as provided for in article 18
(2) of the Constitution.
Besides, it should be
noted clearly that the enjoyment
of the rights of privacy like
the other rights mentioned in
article 18 (2) are all subject
to an important rider to wit,
“except in accordance with law
and as may be necessary in a
free and democratic society ….”
Reference Article 18 (2) of
the Constitution.
Be that as it may, the
public hearing of court
proceedings is a constitutional
provision, and by constitutional
directives in Article 11 (1) of
the Constitution, provisions of
the Constitution constitute the
Grundnorm or Basic Law of the
land and must be complied with
at all times. There being no
conflict with the operations of
article 18 (2) and those
provisions in Article 126 (3) of
the Constitution, we hold that
the order made by the learned
single Judge of this Court, does
not infringe or violate the
constitutional rights to privacy
of the Applicant in anyway
whatsoever.
ISSUE 2
Whether the invocation of Order
46 r. 2 of C. I. 47 in the
mannerapplied by the single
Judge is appropriate.
We have considered the
arguments of both learned
counsel on the applicability of
Order 46 procedure in the
instant application. After
considering all the arguments,
we are of the considered opinion
that the procedure envisaged
under order 46, is indeed set
out under two distinct methods.
1. The first
method is what is covered in
order 46 r. 1 which is
applicable to garnishee
proceedings.
2. The second
method is provided for under
Order 46 r. 2 and this is
applicable as the opening
sentences of the order states as
follows:-
“Where any
difficulty arises in or in
connection with the enforcement
of any judgment or order, other
than a judgment or order as
mentioned in rule 1, …”per
Order 46 r. 2.
This immediately makes it
clear that the procedure under
Order 46 r. 2 is different from
the procedure in Order 46 r 1
which as stated earlier is one
specifically provided for
garnishee proceedings.
In our opinion, the
provisions in order 46 r 2 under
which undoubtedly the single
Judge made the order is a
progressive and proactive
procedural rule. This is
because, it envisages instances
where difficulties may arise in
the enforcement of any judgment
or order, other than those
provided for under Order 46 r. 1
supra. This procedure is to
enable a judgment creditor who
is frustrated and encounters
difficulties in the execution of
judgment to take advantage of
this particular procedure and
orally examine the party to find
out why the judgment debtor is
unable to satisfy the judgment
or order. It is quite certain
that, this was the procedure
that the Respondent’s herein
applied and the learned single
Judge also used when he granted
the application for the oral
examination of the Applicant.
We have also critically
examined the issues and or
questions set out by the single
Judge and are convinced that the
Rule indeed has fortified and
protected the learned single
Judge of this Court in the
orders he made. This is because,
the concluding part of Order 46
r. 2 reads;” and for the
examination of that party on
such questions as may be
specified in the order and that
rule shall apply accordingly
with the necessary
modifications.” Emphasis
This means that, any Judge
applying this Rule of Procedure
has some level of flexibility in
construing the extent of the
orders made by applying
necessary modifications as will
bring out the best results.
In applying this Rule,
reference is made to the
provisions in Rule 1 of Order
46. This is the linkage that the
drafters of the Rules made such
as to maintain a delicate
balance between the provisions
in Rule 1, which deal
specifically with garnishee
proceedings, and in Rule 2,
which deal with any judgment or
order other than garnishee
proceedings, but does not
preclude use of the provisions
contained therein.
In our opinion, the
application herein is a red
herring that learned counsel for
the Applicant has just
introduced as a further
illustration of his delay
mechanism.
CONCLUSION
The application fails and
is accordingly dismissed in its
entirety. The oral examination
of the Applicant is to continue.
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
ATUGUBA, JSC:-
I’ve had the advantage of
reading beforehand the ruling of
my esteemed brother Dotse JSC
The orders made by Benin
JSC sitting as a single Justice
of this court dated the 8th
day of June 2017, the
submissions of counsel and the
provisions of O.46 of the High
Court (Civil Procedure Rules,
2004) have been set out by my
esteemed brother Dotse JSC and I
need not repeat them here.
It is clear that O.46 r.2
applies the provisions of O.46
r.1 mutatis mutandis to non
garnishee proceedings, stemming
from a judgment or order that
does not involve the payment of
money where difficulties of
enforcement are encountered.
The application for the
examination of the applicant in
this case could not be made
under O.46 r.2 since the
judgment involved in this case
was as deposed to by Mrs. Stella
Badu (CSA) in her affidavit in
opposition dated the 16th
day of November 2017 on behalf
of the 1st respondent
herein, “the judgment of this
Court dated 29th
July, 2014 ordering the
applicant to refund to the State
the amount of over Gh¢51
million”.(e.s) This is
therefore manifestly a judgment
for the payment of money which
is excluded from being the basis
of an application under O.46
r.2. See, by analogy Republic v
High Court ex parte PPE Limited
(2007 – 2008) SC GLR 188. It
being a monetary judgment it
comes under O.46 r.1. The
questions that can be put to the
judgment debtor are specified in
that rule.
The full meaning and scope
of O.46 r.1(b) is a question of
construction. Though it appears
that on a close scrutiny, the
scope of questioning under O.46
r.2 may be wider than that of
O.46 r.1 it cannot be readily
said that on a purposive
construction of O.46 r.1(b) a
question as to how the applicant
spent the money sought to be
recovered is inconsistent with
the drive of that rule to
unravel the property or means of
the applicant to satisfy the
judgment debt. Having
disallowed imprisonment for
failure to pay up a judgment
debt under O.43 r.12(1), O.46
r.1 is out to allow a hunt for
property or other means of
satisfying such a judgment and
must be construed to effectuate
that purpose, otherwise a
judgment for the payment of
money can be rendered nugatory
because of unenforceability.
Though the application
which triggered Benin JSC’s
orders dated the 8th
day of June 2017 could not be
properly brought under O.46 r.2
it cannot be said that it cannot
be treated as brought under O.46
r.1.
As to the subpoena to the
Lands Commission it is meant to
facilitate the effective oral
examination of the judgment
debtor as to his means and is
therefore supplementary in that
regard, see article 297(c) of
the 1992 Constitution, which
provides thus;
“297. Implied power
x x x
(c) where a power is
given to a person or authority
to do or enforce the doing of an
act or a thing, all such powers
shall be deemed to be also given
as necessary to enable that
person or authority to do or
enforce the doing of the act or
thing;” (e.s)
Questions relating to
privileges such as
self-incrimination can be raised
and ruled upon at the oral
examination of the applicant.
For all these reasons I
also dismiss the application.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
OSAFO BUABENG FOR THE
THIRD DEFENDANT/APPLICANT
GODFRED YEBOAH-DAME WITH
HIM MRS AFRIYIE ANSAH, CHIEF
STATE ATTORNEY, MRS STELLA BADU,
CHIEF STATE ATTORNEY AND MISS
ZEINAB AYARIGA, ASSISTANT STATE
ATORNEY FOR THE IST DEFENDANT/
RESPONDENT. |