COMET CONSTRUCTION CO., LTD. vs. GHANA COMMERCIAL BANK, TEMA (GARNISHEE) [1976]DLCA374

Date	1976-03-28
Suit No.
Citation No.	[1976]DLCA374

AMISSAH J.A

ARCHER J.A

KINGSLEY-NYINAH J.A.

ANNANCY FOR THE APPELLANTS.

TAGOE FOR THE RESPONDENTS.

[1976]DLCA374
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													<main id="main" class="content" style="min-height: 60rem" >COMET CONSTRUCTION CO., LTD. <o:p></o:p>vs. <o:p></o:p>GHANA COMMERCIAL BANK, TEMA (GARNISHEE)<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 2 GLR 220<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
28 MARCH 1976.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ANNANCY FOR THE APPELLANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMISSAH, ARCHER AND KINGSLEY-NYINAH
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>This
appeal is from a ruling by Anterkyi J. refusing to commit the managers of the
Tema and Republic House branches of the Ghana Commercial Bank (hereafter called
the bank for convenience) for contempt of court. The grievance of the
appellants, Comet Construction Co. Ltd., (hereafter called Comet) arises out of
the following circumstances. In 1965 they obtained damages to the tune of about
£G71,083, now ¢142,166.00, in an action against the Tema Development
Corporation (T.D.C.). Of this amount ¢62,000.00 was paid by the judgment
debtors, leaving a balance of just over ¢80,000.00 unpaid. In 1969, Comet
brought garnishee proceedings against the Tema branch of the bank, who were
reputed to be holding large sums of money in favour of T.D.C. An order absolute
was made in these proceedings by the High Court in favour of Comet. They
expected to get ¢80,000.00 in their hands as a result. These expectations were
shattered. They could not get their hands on a single cedi of the amount.<o:p></o:p><o:p>&nbsp;</o:p>What had
happened was that the Tema branch of the bank, had transferred the money to
Comet’s account at the Republic House branch of the same bank. At that branch,
Comet had an overdraft of ¢95,962.83 which had been outstanding since 31 March
1963. The ¢80,000.00 transferred into this account was therefore swallowed up
by this overdraft. When, after the transfer of the amount garnisheed the
managing director of Comet drew a cheque for ¢1,000.00 on the company’s account
at Republic House, it was dishonoured. It has been pointed out that Comet still
owe the bank nearly ¢16,000.00 on their account at Republic House.<o:p></o:p>Comet’s
complaint against the manager of the Tema branch of the bank was that it was
not for him to decide how to pay the amount ordered to be paid to them in the
garnishee proceedings. His duty was to wait until Comet had directed his branch
what to do with the money. In acting without instructions from Comet he had
flouted the court order and had therefore acted in contempt.<o:p></o:p><o:p>&nbsp;</o:p>Against
the manager of the Republic House branch of the bank the alleged contempt lies
in the fact that he refused to pay over the amount that he had received on
Comet’s behalf, or at least ¢1,000.00 of it which was demanded on the cheque
which Comet drew. According to Comet, he had no right to keep money which by
court order was to be paid to the company and in deciding to keep the money the
manager of the Republic House branch of the bank equally acted in contempt of
court.<o:p></o:p><o:p>&nbsp;</o:p>Anterkyi
J. in a short ruling dismissed the application against both managers. His
treatment of the case against the Republic House branch manager was even more
summary than that of the case against his colleague of the Tema branch. The
learned judge held that the Republic House branch of the bank was a party
neither to the substantive suit nor to the garnishee proceedings and therefore
could not be made liable for contempt. It seems to me that this conclusion must
be right. The manager of the Republic House branch of the bank was not a party
to any of the proceedings in court relating to this matter prior to the
contempt application. There was no evidence that he had notice of the court
order requesting the manager of the Tema branch to pay any sum to Comet. What
evidence there is is rather to the contrary. In his affidavit in support of the
application for committal for contempt, the managing director of Comet said that
after he had been told by the manager of the Tema branch of the bank at Tema
that the money had been transferred to the Republic House branch at Accra,
there to be credited to Comet’s account, he protested at this conduct “but
nevertheless decided to go to Republic House to check up if any sum had in fact
been credited to the company’s account there.” Then followed this account of
what happened at Republic House in the following two paragraphs of the
affidavit:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(10)
That I issued a cash cheque for N¢1,000.00 to be cashed and paid to my counsel but
when the cheque was presented it was not paid and no reason was assigned for
the failure to honour the cheque. <o:p></o:p>