ORIGIN 8 LTD vs. GREATER ACCRA PASSENGER TRANSPORT, EX PARTE ECOBANK GHANA LTD . [2022]DLCA11809

ORIGIN 8 LTD vs. GREATER ACCRA PASSENGER TRANSPORT, EX PARTE ECOBANK GHANA LTD... [2022]DLCA11809

Date	2022-11-10
Suit No.	SUIT NO. H1/151/2022
Citation No.	[2022]DLCA11809

KWOFIE J. A. (PRESIDING)

GAISIE J. A.

BAFFOUR J. A.

KERVIN TETTEY ASHONG FOR GANISHEE APPELLANT

ANDREW KHARTEY WITH KELVIN ADESCNU DOE FOR PLAINTIFF/RESPONDENT

[2022]DLCA11809
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ORIGIN 8 LTD<o:p></o:p>

(PLAINTIFF/RESPONDENT)<o:p></o:p>

vs.<o:p></o:p>

GREATER ACCRA PASSENGER TRANSPORT<o:p></o:p>

(DEFENDANT/RESPONDENT)&nbsp;

EX PARTE ECOBANK GHANA LTD<o:p></o:p>

(GARNISHEE/APPELLANT)&nbsp;

[COURT OF APPEAL,
ACCRA]&nbsp;

SUIT NO. H1/151/2022&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:
10TH NOVEMBER 2022<o:p></o:p>

</div>

COUNSEL<o:p></o:p>

KERVIN
TETTEY ASHONG FOR GANISHEE APPELLANT<o:p></o:p>

ANDREW KHARTEY WITH KELVIN ADESCNU DOE FOR
PLAINTIFF/RESPONDENT<o:p></o:p>

</div>

CORAM<o:p></o:p>

KWOFIE J. A. (PRESIDING), GAISIE J. A.,
BAFFOUR J. A.<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>

BAFFOUR
J.A:<o:p></o:p>

&nbsp;

INTRODUCTION<o:p></o:p>

The
nature and order of garnishee proceedings following a judgment in a trial court
and the propriety or otherwise of the order is the subject of question in this appeal.
Beyond that the rightness or otherwise of a ground of appeal that a decision is
against the weight of evidence when there had been no plenary trial cannot also
be glossed over in this appeal.<o:p></o:p>

</div>

&nbsp;BACKGROUND

The
background facts that have given rise to this appeal are not much complicated. The
High Court, Commercial Division, Accra on the 4th of December, 2018 entered
summary judgment for the plaintiff/judgment/creditor/respondent (who shall
simply be referred to as the "Garnishor'') for the recovery of the sum of
Seven Hundred and Eighty-Six Thousand, Seven Hundred and Seventeen Ghana Cedis Fifteen
Nine Pesewas (Gh¢786,717.59) together with interest as being outstanding monies
in respect of services rendered in an agreement between the plaintiff and Greater
Accra Passenger Transport Executive (hereinafter called "GAPTE''). The Garnishor
accordingly entered the judgment in accordance with Order 41 Rule 7 of the High
Court (Civil Procedure) Rules, 2004, C. I. 47 as a first step in an attempt to execute
the judgment. The total sum recoverable as entered by the Garnishor came to Gh¢1,054,201.57.<o:p></o:p>

&nbsp;

Based
on an application Ex parte for the issuance of an order for garnishee nisi at the
instance of the Garnishor the court below granted same on the 15th of November,
2019 for a garnishee order nisi to be issued by the trial court directed to the
garnishee/appellant (hereinafter called "the Garnishee") and Ghana
Commercial Bank (GCB) to appear before the court on the date specified to show cause
why monies to the tune of One Million, Seventy-Nine Thousand , Two Hundred and One
Ghana Cedis Fifty Seven Pesewas (Gh¢1,079,201.57) allegedly standing to the credit
of GAPTE should not be used to satisfy the judgment debt. It has not been disputed
that the order nisi was not served on the Garnishee. In fact the Garnishee itself
per various affidavits at the court below did not dispute the service of the garnishee
nisi on him. On the date appointed on the 16th of December, 2019, it was only one
of the garnishee Banks, being GCB Bank which appeared by its representative and
showed cause that GCB does not know any client by name GAPTE let alone to have monies
in a non-existent account for him. The court below accordingly discharged GCB Bank.<o:p></o:p>

&nbsp;

For
some Inexplicable reason, the Garnishee unlike GCB Bank chose to spurn that order
by<o:p></o:p>

</div>

not
only refusing to appear before the court on the date stated but also allowed withdrawals
from the very account of GAPTE that the order was intended to preclude any withdrawals
from the account.

In
what the court below deemed to be an ''act of beneficence and charitable indulgence'
it offered another opportunity to the Garnishee by ordering the issuance of a hearing
notice for service on the Garnishee for its appearance before the court below on
the 27th of February, 2020. There has been no contest by the Garnishee that the
hearing notice was not served. Indeed, the Garnishee admit that the hearing
notice issued as "an act of beneficence and charitable indulgence" was
fully served. Perhaps, having been emboldened by the court's failure to act the
first time, the Garnishee brazenly found it convenient to defy the order of the
court to appear before it to show cause why that amount of monies stated to
have been in the account of GAPTE with the Garnishee should not be ordered by the
court to be paid to the Garnishor in satisfaction of the judgment debt. Being
so satisfied that the Garnishee had no cause to show why the monies stated in the
garnishee nisi order should not be ordered to be paid to the Garnishor, the
court below made a garnishee order absolute directing the Garnishee to transfer
the sum to the Garnishor in satisfaction of the judgment debt.<o:p></o:p>

&nbsp;

It
is only upon the service of the garnishee order absolute that the Garnishee suddenly
woke up from its deep slumber to realize that the courts exists for its orders
to be respected but not to be treated with disdain by filing what it termed as a
motion to invoke the inherent jurisdiction of the court. In that motion it
sought an order to vary the garnishee order absolute. In a well balance,
measured and reasoned ruling the court below refused to make any order of variation
to its order absolute and dismissed the application.

It
is that ruling of the court below on the 27th of October, 2020 that has so much
piqued the Garnishee to have ignited this appeal before us. The only notice of appeal
on record was filed on the 3rd of December, 2020 and the sole ground of appeal
stated therein was that the ruling is against the weight of evidence.</div><div class="WordSection4">

RESOLUTION<o:p></o:p>