ESSILFIE vs. GHANA PORTS AUTHORITY [1979]DLHC1059

Date	1979-07-27
Suit No.
Citation No.	[1979]DLHC1059

OSEI-HWERE J.

D. DE GRAFT AIDOO FOR THE PLAINTIFF-JUDGMENT-CREDITOR.

I. G. CARSON FOR THE DEFENDANT-JUDGMENT-DEBTORS.

[1979]DLHC1059
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													<main id="main" class="content" style="min-height: 60rem" >ESSILFIE<o:p></o:p>&nbsp;vs. <o:p></o:p>GHANA PORTS AUTHORITY<o:p></o:p>[HIGH COURT, CAPE COAST] <o:p></o:p>[1978] GLR 469<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
27 JULY 1979<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">

D. DE GRAFT AIDOO FOR THE
PLAINTIFF-JUDGMENT-CREDITOR.<o:p></o:p>

I. G. CARSON FOR THE DEFENDANT-JUDGMENT-DEBTORS.<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 1.0pt 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>The
defendant-judgment-debtors have brought this motion praying the court for an
order for stay of execution and for setting aside the garnishee order dated 1
June 1979. The background to this motion, briefly, is this: The plaintiff who
had issued a writ against the Ghana Railway and Ports Authority as far back as
17 April 1973 finally obtained judgment against the said defendants in the sum
of ¢10,802 together with ¢500 costs on 9 January 1979. The plaintiff’s action
was rooted in breach of contract. After obtaining his judgment he sought by
garnishee proceedings, to attach the debts which, he alleged, were owed by the
Ghana Commercial Bank, main branch, Takoradi, to the Ghana Railway and Ports
Authority in satisfaction of the judgment debt. The garnishee order nisi was
issued and subsequently the plaintiff came to court again to pray for an order
absolute. The garnishee did not answer to the summons and the plaintiff,
consequently, obtained his order absolute against him. It appears from a letter
addressed to the registrar of this court (which has been filed in the docket in
this suit) that after the plaintiff had obtained his garnishee order absolute,
the garnishee wrote to inform the registrar that he had no account in the name
of Ghana Railway and Ports Authority. The plaintiff now brought an ex parte
motion for garnishee order nisi to issue against “Ghana Commercial Bank, per
the Manager, Harbour Branch, Takoradi,” which was alleged to be holding in
favour of the defendants, i.e. Ghana Railway and Ports Authority, sums of money
far in excess of the judgment debt. On 10 May 1979 the court granted the order
nisi against the harbour branch of the Ghana Commercial Bank and summoned the
garnishee to appear in court on 24 May 1979. The plaintiff, in the meantime,
must have received a rude shock that the garnishee was not indebted to the
Ghana Railway and Ports Authority because, on this same 24 May 1979, an ex
parte motion was filed on his behalf wherein he sought the court’s order that
the final order be directed against the accounts of Ghana Ports Authority which
were kept by the garnishee. His reason for the ex parte application was that by
virtue of section 2 (1) of the Ghana Ports Authority Decree, 1977 (S.M.C.D.
96), the Ghana Railway and Ports Authority has now been divided into two
distinct bodies with, each one, a legal personality of its own. After the
garnishee had satisfied the court that it was holding sufficient funds on
behalf of the Ghana Ports Authority, the ex parte motion was granted and a
garnishee order absolute was, in effect, granted.<o:p></o:p>In
support of the motion for stay of execution and also to set aside the garnishee
order, an affidavit has been filed on behalf of the defendants-judgment-debtors
herein by their port accountant who deposed as follows:<o:p></o:p>“(2) That
on 7 June 1979 I received a letter dated 5 June 1979 from the manager of the
Ghana Commercial Bank, Harbour Branch, Takoradi, informing me that he had
received an order attaching the sum of ¢11,402 in our account with the bank. <o:p></o:p>(3) That
the manager also forwarded a copy of the court’s order dated 1 June 1979 as
well as an order for amendment dated 3 May 1979. <o:p></o:p>(4) That
it was from the order dated 3 May 1979 that I learned that an ex parte
application had been made substituting the Ghana Ports Authority, per the
General Manager, Takoradi. <o:p></o:p>(5) That
I am advised and verily believe same that the application to amend should have
been on notice and therefore ought to be set aside. <o:p></o:p>(6) That
furthermore, the Ghana Railway and Ports Authority was dissolved on 30 June
1977 and two new corporations established, namely, the Ghana Railway
Corporation under S.M.C.D. 95 and the Ghana Ports Authority under S.M.C.D. 96.
The Head Office of the Ghana Ports Authority is at Tema. <o:p></o:p>(7) That so
far as I am aware no judgment had been obtained against the Ghana Railway and
Ports Authority as at 30 June 1977 and no judgment would therefore have been
obtained after that date when it had ceased to exist.<o:p></o:p>(8) That
I am advised and verily believe same that any judgment obtained against th</main>