FIRST ATLANTIC MERCHANT BANK LTD. vs. FREDRICK KYEI ENTERPRISE LTD. AND TWO OTHERS [2011]DLHC8492

FIRST ATLANTIC MERCHANT BANK LTD. vs. FREDRICK KYEI ENTERPRISE LTD. AND TWO OTHE... [2011]DLHC8492

Date	2011-07-12
Suit No.	SUIT NO. E2/10/06
Citation No.	[2011]DLHC8492

HIS LORDSHIP JUSTICE JACOB B. BOON

OBENG MANU JNR. FOR THE PLAINTIFF/JUDGMENT CREDITOR/ RESPONDENT

YAW BOAFO FOR THE DEFENDANT/JUDGMENT DEBTOR/APPLICANT

[2011]DLHC8492
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													<main id="main" class="content" style="min-height: 60rem" >FIRST ATLANTIC
MERCHANT BANK LTD.<o:p></o:p>vs.<o:p></o:p>FREDRICK KYEI ENTERPRISE LTD. AND TWO OTHERS<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. E2/10/06&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE:
12TH JULY, 2011<o:p></o:p>

</div>COUNSEL:<o:p></o:p>OBENG
MANU JNR. FOR THE PLAINTIFF/JUDGMENT CREDITOR/ RESPONDENT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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YAW
BOAFO FOR THE DEFENDANT/JUDGMENT DEBTOR/APPLICANT<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;
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HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>In this application, the defendants/judgment/debtors, to
be called the defendants, are seeking an order of the court to set aside the
execution process initiated against their properties, more particularly the
purported attachment of a warehouse at Amanfrom, Barekese Road, Kumasi. The
execution process is as a result of a judgment entered by Appau J, as he then
was, on 27th March, 2006 for the plaintiff bank, to be referred to
as the plaintiff, for the recovery from the defendants a total amount of 11,
201, 644, 547 Old Cedis. Various properties were subsequent attached in an
effort to execute the judgment against the defendants. From the records on 18th
May, 2006, a mercedez benz No. AS 440 R, a yard, offices and stores all at
Amanfrom-Ashanti were attached. Again on 10th September, 2006, another
writ of execution filed indicated that four Daf articulator heads, one scania
head, four flat articulator trailors and scraps also at Amanfrom–Ashanti were
levied. I have not seen any evidence of the attachment of a warehouse unless
what is described as offices and stores attached on 18th May, 2006
includes the warehouse now in issue. However, counsel for both sides argued the
motion on the basis that the warehouse was part of the properties attached.
That must have been the situation on the ground though the documents filed do
not specifically mention the warehouse as being an attached property. Be that
as it may, counsel for the defendants, Yaw Boafo, contended that the execution
under attack offends against the rules of court as captured in Order 44 rule
2(3) and (4) of the High Court (Civil Procedure) Rules, 2004, C.I. 47. For
clarity the said rules are reproduced hereunder:<o:p></o:p><o:p>&nbsp;</o:p>“(3)
The immovable property of a judgment debtor shall not be levied in execution if
the judgment debtor shows that the judgment debtor has sufficient movable
property within the jurisdiction to satisfy the judgment or order and costs.<o:p></o:p>(4)
Where the execution is levied against the immovable property, there shall be
indorsed on the writ of execution a statement that there was not sufficient
movable property to satisfy the judgment debt.”<o:p></o:p><o:p>&nbsp;</o:p>Based on these provisions of the rules of court, he
submitted that in so far as the warehouse of defendants at Amanfrom Barekese
Road was attached, instead of only the movable property, and also because there
was no endorsement on the writ of execution to the effect that the warehouse
was attached as a result of insufficient movable property to satisfy the
judgment debt, the whole process was wrong and must be set aside as a nullity.<o:p></o:p><o:p>&nbsp;</o:p>The application was opposed by the plaintiff. In an
affidavit filed in opposition, it was deposed in paragraph 8 that:<o:p></o:p><o:p>&nbsp;</o:p>“8.
That I am legally advised and verily belive same to be true that nothing done
in execution of the judgment herein breached any rule of substantive statute or
went to jurisdiction”<o:p></o:p><o:p>&nbsp;</o:p>At the hearing, counsel for the plaintiff, Mr. Obeng Manu
Jnr., argued that from the authorities the burden was on the defendants to show
that they had sufficient movable properties to satisfy the judgment debt. He
supported his submission by citing the Court of Appeal case of Manu and Another v Yeboah (1982 – 1983)
G.L.R. 34. The decision in that case was based on Order 42 rule 46 of the High
Court (Civil Procedure) Rules, 1954 (L.N. 140 A) which read:<o:p></o:p><o:p>&nbsp;</o:p>“46
If the judgment debtor has sufficient movable property within the Judicial
Division in which the judgment was issued to satisfy the debt, damages, and
costs recovered, his immovable property shall not be levied upon; but if he has
not sufficient movable property within the Judicial Division it shall be
optional to the execution creditor to levy upon his immovable property within
the same Judicial Division before levying on his movable property elsewhere or
to levy upon the movable property of such judgment debtor wherever it may be
found within the Gold Coast, before having recourse to his immovable property”.<o:p></o:p>