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ATUGUBA, J.S.C:
The applicant moves this court
for “an Order of Cetiorari
directed to the High Court,
(Commercial Division) Accra,
Coram: His Lordship, Mr. Justice
George Atto Mills-Graves, to
bring up into this Hon. Court to
be quashed, the Proceedings,
including the Rulings and Orders
of the said High Court, dated
the 19th day of
October 2011, and the 31st
day of October, 2011, in the
Suit No. OCC.1/11, entitled:
1. Marcelo Navarro Batas, 2.
Balbino Borinaga Jr. 3. Nii Adam
Addy v. 1. Nii Armah Oblie 2.
Osekan Resort Limited;”
The brief facts of the case are
that the interested parties
instituted an action in the High
Court (Commercial Division),
Accra against the applicant
claiming
“i. A declaration that 1st
and 2nd Plaintiffs
own 90,000,000 shares each in 2nd
Defendant Company whiles 3rd
Plaintiff and 1st
Defendant own 5,000,000 shares
each in 2nd Defendant
Company.
ii.
A declaration that the
Plaintiffs and 1st
Defendant are Directors of 2nd
Defendant Company.
iii.
An order for 1st
Defendant to account for his
stewardship of 2nd
Defendant from 27th
September, 2010 to date.
iv.
An order for the appointment of
an interim management committee
to take over the management of 2nd
Defendant Company.
v.
An order of injunction to
restrain 1st
Defendant, his agents, assigns,
workers and servant from
managing 2nd
Defendant from the date of
issuance of this Writ to date of
final judgment.
vi.
Cost inclusive of legal and
administrative cost.”
Subsequently the plaintiffs
applied for interim injunction
restraining the applicant (the 1st
defendant) from managing the
affairs of the 2nd
defendant, and for the
appointment of a manager and
receiver.
In granting the application the
trial judge G.A. Mills-Graves J
ordered inter alia, “all
proceeds that have accrued from
the 2nd Defendant
Company and which the 1st
Defendant has kept solely in his
personal account (different from
that of the 2nd
Defendant Bank Account) shall
within 7 days from today be
returned to the 2nd
Defendant Bank Account.
(Inclusive of the sum of
GH¢37,846.50 that stand in the
name of 1st Defendant
in a separate Bank.”
For non compliance with this
order the applicant was
committed to prison for a term
of 60 days. An application to
set aside this committal was
dismissed by the trial judge.
Hence this application before
this court.
The obvious question arising in
this application is whether the
order of the trial court for the
return of the moneys from the
applicant’s personal account to
the company’s account is an
order for the payment of money
and therefore upon the authority
of the Republic v High Court
(Fast Track Division), Accra, Ex
parte PPE Ltd & Paul Juric
(Unique Trust Financial Services
Limited Interested Party)
(2007-2008) SCGLR 188 is not
enforceable by committal, by
reason of 0.43 r.12(1) of the
High Court (Civil Procedure)
Rules, 2004, C.l.47.
There is no doubt that this
order involves money, therefore
the residue of the question is
whether payment is involved.
The Oxford Advanced Learner’s
Dictionary 7th
edition defines payment inter
alia as money either paid or
awaited to be paid.
In Latilla v Commissioners of
Inland Revenue (1943) l
AllER 265 H.L the House of Lords
(as it then was) had to construe
the words “become payable”
under s.18(1) of the Finance
Act, 1936(C.34) which provided
as follows:
“For the purpose of preventing
the avoiding by individuals
ordinarily resident in the
United Kingdom of liability to
income tax by means of transfers
of assets by virtue or in
consequence whereof, either
alone or in conjunction with
associated operations, income
becomes payable to persons
resident or domiciled out of the
United Kingdom, it is hereby
enacted as follows:-
(1)
Where such an individual has by
means of any such transfer,
either alone or in conjunction
with associated operations,
acquired any rights by virtue of
which he has, within the meaning
of this section, power to enjoy,
whether forthwith or in the
future, any income of a person
resident or domiciled out of the
United Kingdom which, if it were
income of that individual
received by him in the United
Kingdom, would be chargeable to
income tax by deduction or
otherwise, that income shall,
whether it would or would not
have been chargeable to income
tax apart from the provisions of
this section, be deemed to be
income of that individual for
all the purposes of the Income
Tax Acts.”
The House of Lords held as
follows:
“The appellant correctly argues
that “any such transfer” in
subsect. (1) means any “transfer
of assets by virtue or in
consequence whereof, either
alone or in conjunction with
associated operations, income
becomes payable” to the
company.
He then contends- and this is
the pinch of the case – that
trade profits made by a
partnership cannot be said to be
income a share of which “becomes
payable” to one of the
partners. One partner, it is
said, is not a creditor of the
partnership: the share of
partnership profits to which the
Latjohn Trust Ltd. became
entitled could not, in this
view, be described as income
which “became payable” to the
company.
The answer to this argument is
to be found in the powerful
judgment of LAWRENCE, J., and
again in a passage from the
judgment of LORD GREENE, M.R.,
which I would respectfully adopt
as expressing with the greatest
clearness and precision the true
view of the application of sect.
18 to the facts of this case.
Speaking for the Court of
Appeal, LORD GREENE, M.R.,
declared his disagreement with
the appellant’s arguments, and
continued at p. 217:
“The share of the profits of the
partnership to which the company
is entitled is that share which
comes to it in accordance with
the terms of the partnership.
The company is entitled to
call upon its partner to do
whatever may be necessary, for
example, by signing a cheque on
the banking account of the
partnership to enable the
company to obtain its share.
In the partnership accounts the
company’s undrawn share of
profits would appear as a debt
owing to the company. If the
profits were under the control
of the other partner, the
company could by appropriate
proceedings compel him to pay
over its share. If this is not
income “payable” to the company,
we do not know what it is.”(e.s)
At 268 Lord Porter also said:
“The main argument,
however, presented to your
Lordships was centered upon
the words “payable to.” It
was said that those words
necessitated the existence of a
payer and a payee and that
income could not become
“payable” out of partnership
funds to a company which was a
member of the partnership. A
partner, it was contended, was
already the owner, amongst other
things, of his share of the
partnership profits and could no
more pay himself out of those
profits of his own business.
No doubt it is true to say that
an individual cannot pay
himself, if pay be used in its
strict sense. But no
question of an individual’s
ability to do so arises here.
The only question is whether
income can be said to be payable
to a partner out of the
partnership assets. I think
it can. “Payable” is not a
term of art, and, though a
partner cannot sue the
partnership or the partners
individually in order to recover
partnership assets, yet, as
LORD GREENE, M.R., points out,
he has at his disposal means
whereby he can ensure that his
share reaches his hands. In
such circumstances it seems to
me that the word “payable” is
appropriately used and
accurately conveys the process
by which the income finds its
way into the pocket of the
individual. It would, I
think, not inaccurately be
described as having been paid to
him out of the partnership funds.”
(e.s)
It is therefore clear that upon
strict construction of O. 43 r.
12(1) and the
application of the decision of
this court in the Ex parte
PPE Ltd &Paul Juric,
case the
order of the High Court in this
case being one for the payment
of money the procedure of
committal would not lie. But as
was said by Sowah JSC in
Mekkaoui v Minister of Internal
Affairs (1981) GLR 664 S.C
at 708 “Every enactment is
designed to effect a purpose
.. .. ..
You operate a law for the
purpose of achieving the
objectives of that law…..”
(e.s)
The question then is whether
O.43 r. 12(1) of C.l.47 can be
said to contemplate and
comprehend a case such as this,
as one of its purposes. As
Taylor JSC in the Mekkaoui
case said at 719, “…I believe it
is now trite law and there is no
need to cite any authority to
support it, that in all
statutes, the legislature or the
lawgiver is presumed to have
legislated with reference to the
existing state of the law.
I think the decision of Lord
Parker C.J. in Fisher v Bell
(1961) lQ394 is an admirable
illustration of this elementary
principle.”
The omission of the committal
procedure in respect of a
judgment or order for the
payment of money under O.43 r.
12(1) of C.I.47 is carried over
from a similar omission from
O.42 r.7 of the old High Court
(Civil Procedure Rules) 1954,
L.N. 140 A. However the remedy
of committal was left to O.69 of
L.N. 140 A.
The evils of imprisonment for
monetary debt can be harvested
from the procedure of summons to
show cause under O.69 of L.N.
140A, the old High Court (Civil
Procedure) Rules. In his
pioneering book Civil Procedure
in Ghana, at 99 E.D. Kom (of
much lamented memory) has this
to say:
“Summons to show
cause, Order 69
A judgment creditor can apply in
writing to the registrar of the
court where he obtained
judgment, to issue summons
against the judgment debtor,
calling upon him to appear
before the court on a day
specified in the summons, and
show cause why he should not be
committed into prison for
refusing or neglecting to pay
the judgment debt.
If after service of the summons
on him he fails to appear before
the court bench warrant will be
issued for his arrest. If he
appears in obedience to the
summons or is arrested and
brought to court, the
judgment creditor has to prove
one of the following before the
order can be made.
(a)
that the judgment debtor has
means to pay but has refused or
neglected to pay the same;
(b)
that with intent to defraud
or delay his creditors he has
made a gift, delivery or
transfer of his property or
removed it from the jurisdiction
of the court where the judgment
was obtained;
(c)
that the debt or liability
in respect of which the judgment
was obtained was contracted,
or incurred by him by fraud or
breach of trust;
(d)
that forebearance of the debt
was obtained by him by fraud;
(e)
that the debt or liability was
willfully or recklessly
contracted, or incurred by him
without his having at the same
time a reasonable expectation of
being able to pay or discharge
it.
If the judgment creditor
proves his case to the
satisfaction of the court the
judgment debtor will be
committed into prison…… ”
It can be seen that the summons
to show cause procedure was a
perilous one which endangered
personal liberty even though in
reality the contemnor just could
not pay up the judgment debt.
It is clear however that if upon
the mere exercise of assessment
of the evidence led, it could be
held that he had the means to
pay, he would go to jail for his
perceived default, only for the
real truth to be discovered
afterwards, see Asumadu-Sakyi
II v. Owusu (1981) GLR 201
C.A. Even some of the grounds
listed by Kom as justifying an
order of committal to prison on
a summons to show cause had
nothing to do with the
applicant’s means to pay. No
wonder this summons to show
cause procedure which was only a
more elaborate committal
procedure, has also, been banned
by omission from C.147.
By contrast, upon the facts of
this case the applicant’s
liability was the ministerial
act of issuing a cheque to lodge
the moneys covered by the order
of the High Court into the
proper account (the company’s
account). In these
circumstances the situation of
the applicant is akin to that of
a person in possession of a
chattel who has been ordered to
surrender or release it to
another person. From another
angle his situation is akin to
a person who merely is ordered
to effect the reversal of a
monetary credit, wrongly made to
his bank account, in favour of
the appropriate account to which
it should have been credited,
see Barclays Bank (D.C.O) v.
Heward-Mills (1964) GLR 332
S.C.
What is involved in this case is
a mere specific banking act. It
is not an open-ended order for
the payment of money. Indeed
the act is to be performed
within 7 days and no extension
of this time limit has been
sought. This makes it
impossible for other alternative
procedures like garnishee
proceedings to be pursued, so as
to preserve the applicant’s
personal liberty. In any case we
do not conceive committal under
O.43 r.12(1) to be one of
absolute liability and the trial
judge indeed did not treat it as
such.
It is settled law, as stated by
Mensa Boison J.A., delivering
the judgment of the Court of
Appeal in Catheline v.
Akufo-Addo (1984-86)1 GLR 96
C.A, at 104 that “It is a
settled rule, where the words
admit, that an enactment
should be construed such that
the mischief it seeks to cure is
remedied, but no more.”
There is no conceivable mischief
arising from the application of
the committal process to the
applicant, on the facts of this
case, even though technically
the order is for the payment of
money. If he nonetheless lends
himself to it that will be
volenti non fit injuria
For all these reasons though the
order of the trial court
involves the payment of money it
is a payment of money only in
the strict and technical sense
but not the kind of judgment or
order for the payment of money
within the contemplated scope of
exemption from committal relief
under O.43 r.12(1).
Therefore even though the
applicant’s counsel has
displayed ingenuity in
contending that O.43 r.12(1)
does cover this case, this court
must repel destructive
brilliance ut floreat
justitia.
The application is therefore
dismissed.
(SGD) W.
A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) J.
ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
R. C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT
(SGD) ANIN
YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) N.
S. GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL:
PRINCE FREDERICK NII ASHIE
NEEQUAYE FOR THE APPLICANT
NO APPEARANCE FOR THE
RESPONDENTS
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