JEAN FRANCIS MOURAD vs. ACE CLADDING SYSTEMS GHANA LTD [2023]DLHC12176

Date	2023-02-09
Suit No.	SUIT NO. G.J/0113/2021
Citation No.	[2023]DLHC12176

HIS LORDSHIP JUSTICE JOSEPH ADU OWUSU AGYEMAN

NII KPAKPO SAMOA ADDO FOR THE PLAINTIFF PRESENT

LILIAN CODJOE WITH AGYARKO MNTAH HOLDING BRIEF OF GWENDY BANNERMAN FOR THE FOR CLAIMANT PRESENT

[2023]DLHC12176
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													<main id="main" class="content" style="min-height: 60rem" >JEAN FRANCIS MOURAD<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>ACE CLADDING SYSTEMS GHANA LTD<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT
NO. G.J/0113/2021&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: 9TH FEBRUARY, 2023 &nbsp;<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NII KPAKPO SAMOA ADDO FOR THE PLAINTIFF PRESENT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

LILIAN CODJOE
WITH AGYARKO MNTAH HOLDING BRIEF OF GWENDY BANNERMAN FOR THE FOR CLAIMANT
PRESENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP JUSTICE JOSEPH ADU OWUSU AGYEMAN<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;On
the 12th of March 2021, this Honourable Court gave judgment against the
Defendant/judgment/Debtor in favour of the
Plaintiff/Judgment/Creditor/Applicant (hereinafter called the Applicant).<o:p></o:p>In
the course of the enforcement of the said judgment, the Applicant instituted
Garnishee Proceedings against Consolidated Bank Ghana (hereinafter called the
"Garnishee Bank").<o:p></o:p>During
the garnishee proceedings, the Respondent filed a claim at the Registry of this
Honourable Court and which this court pursuant to Order 47 Rule 6(1) of the
High Court (Civil Procedure) Rules 2004 (Cl 47) invited the Respondent to
demonstrate the nature of its claim in respect of funds lodged with the Garnishee
Bank in the name of the Defendant/Judgment/Debtor.<o:p></o:p>The
crux of the claim of the Respondent Bank as gathered from the affidavit of
interest was the fact that the Defendant/Judgment/Debtor obtained a loan
facility and which was not paid before the funds were moved to the Consolidated
Bank which is the Garnishee Bank herein at the time of the liquidation of the
Respondent Bank herein. According to the Respondent, the Defendant/Judgment/Debtor
has been sued at the High Court for the determination of its claim against the
Defendant/Judgment/Debtor in respect of the funds lodged at the Garnishee Bank.
It is interesting to note here that whilst in this court the
Defendant/Judgment/Debtor did not contest the claim of the Applicant, the
Defendant/Judgment/Debtor is vigorously contesting the claim of the Respondent
Bank. Not only that but also this court ordered the Respondent to provide
documents in respect of the loan facility obtained by the
Defendant/Judgment/Debtor as well as the details of the account of the
Defendant/Judgment/Debtor at the Respondent bank before the account was moved
to the Consolidated Bank but none was forthcoming.<o:p></o:p>&nbsp;&nbsp;This
court was of the view that as much as the Defendant/Judgment/Debtor was owing
the Respondent, the Defendant/Judgment Debtor was also owing the Applicant and
that this court could not wait for the claim of the Respondent at the other
court against the Defendant/Judgment/Debtor to be determined before this court
makes the order in favour of the Applicant especially when the
Defendant/Judgment/Debtor was not contesting the claim of the Applicant herein.
Moreover, the funds the subject matter of the garnishee proceedings was lodged
in an account at the Garnishee Bank in the name of the
Defendant/Judgment/Debtor and this court would not believe that the respondent
has interest in the funds without any evidence to that effect. Conversely, even
if there were pieces of evidence to the effect that the Respondent has interest
in the funds lodged at the Garnishee Bank in the name of the
Defendant/Judgment/Debtor the same can be said of the
Plaintiff/Judgment/Creditor in this court. Whereas the case between the
Applicant herein and the Defendant has reached the Garnishee Proceedings the
case between the Respondent and the Defendant is yet to reach the trial.<o:p></o:p>Consequently,
upon hearing the Respondent's claim, this court on the 29th of November,' 2022
ruled that the Respondent had no interest whatsoever in respect of the funds
lodged with the Garnishee bank in the name of the Defendant/Judgment/Debtor. I
must add here that even if the Respondent had any interest in the funds lodged
at the Garnishee Bank in the name of the Defendant, the interest of the
Respondent could not be used to extinguish the interest of the Applicant in the
same funds.<o:p></o:p>Aggrieved
by this ruling of this court the Respondent on 6th December, 2022 filed a
notice of appeal against same.<o:p></o:p>It
is this notice of appeal that the Applicant is seeking the order of this court
to set aside for the following reason;<o:p></o:p>a) That the Respondent being a non-party to the
Garnishee proceedings, could only appeal against the ruling of this court with
leave of either this court or the Court of Appeal and not as of right.<o:p></o:p>The
reply, the Respondent contended that by filing affidavit of interest as a
claimant in the Garnishee Proceedings, the Respondent was a party to the proceedings
and therefore could appeal as of right and not with leave.<o:p></o:p>The
Respondent went further to contend that the notice of appeal intended for the
Court of Appeal, this court has no jurisdiction to entertain this a</main>