RULING
ATUGUBA J.S.C.
The applicant was a defendant to
a civil action by the interested
party which was tried by
Gyaesayor J as he then was.
The interested party who won the
action applied for and obtained
a garnishee order against the
Agricultural Development Bank in
respect of the applicant’s
accounts thereat.
The applicant now moves this
court for the following reliefs:
“(1) an order of certiorari
directed at the Automated/Fast
Track High Court (No.3), Accra
presided over by His Lordship,
Justice P.K. Gyaesayor to bring
up to this Court for the purpose
of quashing, garnishee
proceedings of the trial court
dated 24th April,
2008 attaching Applicant’s
accounts with Agricultural
Development Bank- Cedi House
Branch, Accra and a subsequent
order dated 20th
June, 2008 for the Bank to pay
the Interested Party an amount
of Fifty Thousand Ghana Cedis
(GH¢50,000.00), pursuant to an
earlier judgment dated 8th
November, 2007.
(2)An order staying execution of
the said judgment.
AND that the grounds for the
application are as follows:
a)
that the trial judge having
pronounced or passed final
judgment on 8th
November, 2007 in favour of the
Plaintiff (Interested Party) he
was functus officio
and could not, therefore,
preside over garnishee
proceedings on 24th
April 2008 as Justice of the
High Court, he having been
elevated as Justice of Appeal on
1st April, 2008
without express directive from
the Chief Justice to preside
over the case, pursuant to
Article 139(1) (c), (2) of the
1992 Constitution and Section
14(1)(c) and (2) of the Courts
Act, 1993 (Act 459).
b)
That the trial Judge having
become functus officio and a
Justice of Appeal as aforesaid
he lacked the jurisdiction to
sign or issue an order of 20th
June, 2008 as a Justice of the
High Court for the garnishee
(Agricultural Development Bank)
to pay the Plaintiff/Interested
Party out of the account of the
Defendant/Applicant known as MIN
WKS HSING STATE HSING, THE SUM
OF Fifty Thousand Ghana Cedis
(GH₵50,000.00)
c)
That the garnishee proceeding of
24th April 2008 or
their resultant order at page 5
thereof whereby Agricultural
Development Bank was ordered to
pay GH₵132,240.00 to the
plaintiff/Interested Party were
a nullity as same took place in
violation of the express
provisions of Order 47, Rule
3(1) (b) of the High Court Civil
Procedure Rules, 2004 (C.I.47)
because Defendant/Applicant was
never served with any
order to show cause, at
least seven days before the 24th
April, 2008.
d)
That the trial court having
breached the express provisions
of order 47, Rule 3(1) (b) of
C.I.47 aforesaid it lacked
jurisdiction to make an order on
the 24th April, 2008
as aforesaid and by an order of
20th June, 2008 amend
the Defendant/Applicant’s
account name or description and
proceed to order the garnishee
to pay GH₵50,000.00 out of same
to the Plaintiff/Interested
Party.
e)
That no specific application
pending before the trial court
to amend the account name of the
Defendant/Applicant the court
lacked the jurisdiction to
suo motu amend the
garnishee proceedings of 24th
April, 2008 by an order of 20th
June 2008, the
defendant’s/Applicant’s accounts
name and proceed to order the
garnishee to pay GH₵50,000.00
out of same to the
Plaintiff/Interested Party.
f)
That the Plaintiff/Interested
Party’s lawyer’s written
submission filed on 17th
June, 2008 not having been
served on the
Defendant/Applicant the trial
court breached the audi
alteram partem rule of
natural justice when the Judge
made an order dated 20th
June 2007 without having heard
the Defendant/Applicant in reply
or response before issuing the
said order.
g)
that the order of the lower
court dated 29th
June, 2008 and entitled: ORDER
TO DISCHARGE GARNISHEE ORDER is
null and void and of no effect
whatsoever and same ought to be
quashed, as it was made without
jurisdiction when the Judge
purported to sign same as a
Justice of the High Court, when
in actual fact he was presiding
in capacity as Justice of
Appeal.
h)
That the order of the lower
court dated 20th
June, 2008 and entitled: “ORDER
TO DISCHARGE GARNISHEE ORDER” is
null and void and of no effect
as the order relies on a written
submission of
Plaintiff/Interested Party’s
lawyer responding to
Defendant/Applicant’s
application (or submission) for
stay of execution and not at all
in any way related to the
Applicant/Defendant’s
application (or submission) to
discharge a garnishee order.
i)
That the order of the lower
court dated 20th
June, 2008 and entitled “ORDER
TO DISCHARGE GARNISHEE ORDER” is
null and void and of no effect
in so far as it is directed
against the wrong account name
of MIN WKS HSING STATE HSING
instead of the correct account
name of MIN. WKS HSING STATE
HSING CO being
Defendant/Applicant’s accounts
with Agricultural development
Bank in the joint names of the
Ministry of Water Resources,
Works and Housing and the
Defendant/Applicant.”
We are of the opinion that the
applicant’s grounds for this
application, in essence, revolve
around two main issues, namely
(1) whether the judge below,
lost judicial capacity by reason
of his elevation to the Court of
Appeal, to make the orders in
question in his capacity as a
High Court Judge and (2) whether
the garnishee order dated the 24th
day of April 2008 and its
variation dated the 20th
day of June 2008 were a nullity
by reason of the non-prior
service on the applicants of the
garnishee proceedings. Each of
these two grounds, if valid,
would nullify the said orders.
It is obvious that if the
garnishee order of the 24th
day of April 2008 is a nullity
any purported subsequent
variation of that order would
also be airy nothing. The
interested party contends that
no evidence has been led by the
applicant with regard to the
first issue. We however find it
unnecessary to pronounce on the
same having regard to our
decision as to the second issue.
Order 47 relating to garnishee
proceedings, provides as far as
relevant as follows
“1. Attachment
of debt due to judgment debtor
(1)
Where a person in this Order
referred to as “the judgment
creditor” has obtained a
judgment or order for the
payment of money by some other
person referred to as “the
judgment debtor” and the
judgment or order is not for the
payment of money into court, and
another person within the
jurisdiction, referred to as
“the garnishee” is indebted to
the judgment debtor, the Court
may, subject to the provisions
of this Order and of any
enactment, order the garnishee
to pay the judgment creditor the
amount of any debt due or
accruing to the judgment debtor
from the garnishee, or as much
of it as is sufficient to
satisfy that judgment or order
and the costs of the garnishee
proceedings
(2)
An order under this rule shall
in the first instance be an
order to show cause, and shall
specify the time and place for
further consideration of the
matter, and in the mean time
attach such debt as is mentioned
in sub rule (1), or as much of
it as may be specified in the
order, to satisfy the judgment
or order mentioned in that sub
rule and the costs of the
proceedings.
X X X XXX XXX XXX
3.
Service and effect of order to
show cause
(1) An order under rule 1 to
show cause shall, at least seven
days before the time appointed
for the further consideration of
the matter, be served on the
(a) garnishee
personally; and
(b) judgment debtor unless the
Court otherwise directs.”
We are unable to accept the
interested party’s argument,
which is in effect that the
judgment debtor can only be
served with the garnishee
proceedings if the court orders
that they be served on him. That
is stating the rule conversely.
Rather O 47r.3 (1) (b) requires
the service of such proceedings
on the judgment debtor unless
the court otherwise orders.
Exhibit “M” attached to the
applicant’s application to this
court is as follows:
“IN THE HIGH COURT OF JUSTICE
FAST TRACK DIVISION
ACCRA
SUIT NO.AHR 25/2005
CHARLES
BARNOR
PLAINTIFF
VRS
STATE HOUSING COMPANY
LTD
DEFENDANT
SEARCH
Please cause a search in your
Registry to find out the
following:
-
(a) Whether or not an order
to show Cause under Order
47, Rule 1 (2) of C.I.47 was
issued by the Court?
Yes
(b) And if so when issued?
4/4/08
2. Whether or not the said order
specified the time and place for
further consideration of the
matter? No
3. (a) Whether or not the said
order to Show Cause was served
on the Judgment Debtor (i.e.
STATE HOUSING COMPANY LIMITED)
pursuant to Order 47, Rule 3(1)
(b)? No
(b) And if so when served?
__
(c) And upon whom served?
__
4. Whether or not the
Court directed the said STATE
HOUSING COMPANY LIMITED not to
be served the order to Show
Cause pursuant to order 47, Rule
3(1) (b)? No
5. (a) Whether or not an
application to discharge
Garnishee order was heard on the
20th June 2008?
No
(b) And if so when heard? __
6. (a) What application was
moved on the 20th
June 2008? No application
(b) And moved by whom? __
(c) Whether the written
submission of Aurelius Awuku
Esq.
Counsel for and on behalf
of the Plaintiff/Creditor was
Served on the
Defendant/Judgment Debtor?
No
(d) What order or
ruling was pronounced by the
Court on
20th June 2008?
The garnishee is hereby
ordered to pay
GH₵50,000 to Plaintiff.
7. Whether or not the
Plaintiff/Judgment/Creditor
applied to the Registrar of the
Fast Track Court to draw up the
order of Garnishee dated 20th
June 2008. No
DATED AT THE LEGAL DEPARTMENT
STATE HOUSING COMPANY LIMITED,
ACCRA THIS 11TH DAY
OF APRIL 2008.”
Since Exhibit M is positive that
no direction was given by the
Court that the applicant should
not be served with the garnishee
proceedings and yet the
applicant was not served with
them it follows that an
essential prerequisite to the
entertainment of those
proceedings had not been
complied with and the same was
not only an error of law but one
of jurisdictional character. See
Republic v. District
Magistrate, Accra; Ex parte Adio
(1972) 2 GLR 125. In
Vasquez v. Quarshie (1968) GLR
62 at 65, Amissah J.A.
bluntly said: “A court
making a decision in a case
where a party does not appear
because he has not been
notified is doing an act which
is a nullity on the ground of
absence of Jurisdiction”.
See also Republic v. High
Court, Bolgatanga, Ex-parte Hawa
Yakubu (2001-20020 SCGLR 53.
The quashing of the said
garnishee proceedings would be a
remedy which, on the facts of
this case, would serve the
purposes of all the other
incidental grievances of the
applicant herein.
For all the foregoing reasons
the application succeeds. Let
the garnishee order of the High
Court, Accra presided over by
Gyaesayor J.A. dated the 24th
day of April 2008 and the
subsequent order of that court
dated the 20th day of
June 2008 be brought up before
this court for the purpose of
being quashed and the same are
hereby quashed.
W. A. ATUGUBA
(JUSTICE OF THE SUPREME COURT)
S. A. B. SOPHIA AKUFFO (MS)
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JOHN AIDOO FOR THE APPLICANT
AURELIUS AWUKU FOR THE
INTERESTED PARTIES |