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I
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 $192,000.000 with the
Registrar of this court the
security against any Judgment
that may be given any Judgment
that may be given in respect of
this case should the
Defendant/Respondent find
himself outside the Jurisdiction
of this court at the time of
trial. By this the court is
issuing a bench warrant
(sic) for the arrest of
Defendant and present before
this court at the next
opportunity”.
What the applicant has prayed
for is absconding warrant but
not bench warrant as ordered.
On 16/12/08, the applicant
herein then Defendant, was
present in court. This is what
transpired in the court:
“The Defendant’s is in court but
has refused to obey the order of
this court. The Defendant’s
Lawyer prays for bail for the
Defendant.
By court:
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Before considering the
application for bail for the
Defendant, he is ordered to
release the E500 Mercedes Benz
car to the Registrar of this
court and deposit an amount of
US$ 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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