STELLAR POWER LTD vs. NARH GLOBAL SERVICES LTD AND NDK FINANCIAL SERVICES LTD [2019]DLHC7649

Date	2019-07-11
Suit No.	SUIT NO: AC 834/2014
Citation No.	[2019]DLHC7649

HER LADYSHIP OLIVIA OBENG OWUSU J.

DERRICK DELALI KUSHITOR FOR CLAIMANT

KWABENA BOYE ADJEKUMHENE FOR DEFENDANT/JUDGMENT CREDITOR /RESPONDENT

[2019]DLHC7649
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >STELLAR POWER LTD<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p>NARH GLOBAL
SERVICES LTD AND NDK FINANCIAL SERVICES LTD<o:p></o:p>[HIGH
COURT (GENERAL JURISDICTION COURT 4), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

SUIT NO: AC 834/2014&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:
11TH JULY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DERRICK DELALI KUSHITOR FOR CLAIMANT <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

KWABENA BOYE ADJEKUMHENE FOR DEFENDANT/JUDGMENT
CREDITOR /RESPONDENT <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:0cm 0cm 1.0pt 0cm">

HER LADYSHIP OLIVIA OBENG
OWUSU, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

RULING<o:p></o:p>

</div>On the 20th of May, 2019 the
claimant/applicant (hereafter referred to as the applicant) filed an
application to vary the order of the Court striking out its affidavit of
interest and to suspend the auction sales to be held on the 21st of
May, 2019.&nbsp; Before the applicant could be
heard on the motion, a preliminary objection was taken by learned counsel for
the Judgment Creditor/Respondent (hereafter referred to as the respondent) on
the ground that the application has been brought beyond the time set out in
Order 44 rule 13 (5) of C.I. 47 for filing an appeal.&nbsp; Counsel for the respondent submitted that
since the application was filed beyond the mandatory 14 days it is incompetent
and same ought to be dismissed.<o:p></o:p>In reply it was the contention of learned counsel
for the applicant that the Court has powers to make orders that it considers
just in order for the case to be determined on those grounds. Counsel also
relied on the averments contained in the affidavits, which he filed on 20/05/19
and 27/05/19.<o:p></o:p>Order 44 Rule 13 (2) of C.I. 47 provides as
follows:<o:p></o:p>“Where
a claimant, having been duly served with notice of an Order made under rule 12
(4), fails to appear or, having appeared, fails or refuses to comply with any
order made after the appearance, the claimant, and all persons claiming under
the claimant, shall be forever barred from prosecuting the claimant’s claim
against the Registrar and all persons claiming under the Registrar; but such an
order shall not affect the rights of the claimants as between themselves”.<o:p></o:p>I think it is necessary to recount the events,
which have provoked the instant application. They are as follows: In an
interpleader suit the applicant claimed that the properties taken in execution
belong to it and as such, not liable to attachment. &nbsp;Accordingly, the Registrar of the Court took
the step which Order 44 rule 12 (4) of C.I. 47 the High Court (Civil Procedure)
Rules, 2004, obliged him to take.&nbsp; He served
on the respondent the prescribed notice calling upon it to admit or deny the
title of the applicant.&nbsp; The former
disputed the applicant’s title.&nbsp; The Registrar
issued an Interpleader Summons and invited both sides to appear before the Court
to state the nature of their respective claims.&nbsp;
This Summons was duly obeyed and on 4th December, 2018 both
parties appeared before the Court.&nbsp; The Court
directed that the applicant should be plaintiff and the respondent defendant.&nbsp; The natural follow-up of this order was to
throw the burden of establishing its title on the applicant.&nbsp; The Court ordered the parties to file
pleadings and the applicant was to file its pleadings within 14 days.&nbsp; Thereafter the matter was adjourned to 11th
of January, 2019 and 16th of January, 2019 but the applicant failed
to file its pleadings in compliance with the order given by the Court on 4th
December, 2018.&nbsp; In accordance with Order
44 rule 13 (2) of CI 47 the Court therefore exercised it discretion by barring
the applicant and all persons claiming under it from prosecuting its claim
against the Registrar and all persons claiming under the Registrar.<o:p></o:p>The question thus to be answered in this:&nbsp; What was the effect of barring the applicant
and all persons claiming under it from prosecuting its claim? Though not on all
fours with the instant case the case of TETTEH V MENSAH AND OTHERS [1987-88] 1 GLR
471 provides a very useful guide to the interpretation of Order 44 rule
13 (2) of C.I. 47.&nbsp; In that case the
trial Judge dismissed the Plaintiff’s claim on the grounds, inter alia, that
the dismissal of the plaintiff’s interpleader suit barred him from instituting
a fresh action.&nbsp; On appeal the Court held
that the then Order 57, rule 10 of the High Court (Civil Procedure) Rules, 1954
(L.N. 140A) gave discretionary&nbsp; powers to
the High Court to bar a claimant who failed to comply with orders of the Court in
an interpleader suit and whose action was dismissed on that ground from
instituting a fresh action.&nbsp; Where the Judge
therefore did not exercise that discretion to bar the claimant, the claimant
would not be prevented from instituting an action to defend his title to
property seized in execution of a judgment debt.&nbsp; The Court held that since the trial Court did
not exercise its discretion to bar the plaintiff on dismissing the interpleader
suit, the Judge who continued the case after that order erred in holding that
the dismissal of the interpleader suit barred the plaintiff from instituting
the instant action.<o:p></o:p>The rule ought to be used sparingly and applied where
a party has been given the chance or opportunity to prove his claim and has
failed to avail himself of it.&nbsp; In my
view once the Court makes an order as in this case declaring a party forever
barred from prosecuting his claim it does not lie within that party’s right to
come back to the same Court for that relief.&nbsp;
That being so the application has no recognition under the rules of this
Court. <o:p></o:p>

</main>