The republic vs The automated fast track high court (J5/35/2008) [2008] GHASC 18 (19 November 2008);

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.

ADINYIRA (MRS), J.S.C.

BAFFOE-BONNIE, J.S.C.

CIVIL MOTION

NO. J5/35/2008

19TH NOVEMBER,2008

THE REPUBLIC

THE AUTOMATED FAST TRACK HIGH COURT

EX-PARTE: STATE HOUSING COMPANY LTD

_________________________________________

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:

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).
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)
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.
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.
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.
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.
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.
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.
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

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
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? __

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? __

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