Division: HIGH COURT, ACCRA
Date: 1 MARCH 1965
Before: APALOO JSC
JUDGMENT OF APALOO JSC
On 23 February 1965, I heard together without making a formal order for consolidation, two motions which sought two separate orders affecting the money and other property of two persons by name Kwame Kwakye and Moses Adeyemi both of whom I convicted on 16 October 1964 for the theft of a large sum of money belonging to Ramanu Akande, one of the applicants in these motions.
The first motion which was not inappropriately characterised as a roving one, sought an order to restrain all persons holding money or other property belonging to the two convicts from parting with or disposing of it without the order of this court. The applicant also sought a further order, more rambling than the first, that “any person to whom any payment of money or transfer of property has been effected by the defendants since March 1964 shall return the said money or property to the deputy sheriff, etc. “The two orders were professed to have been sought under the Criminal Procedure Code
(Amendment) (No. 2) Act, 1964.1
The second application was a repeat motion praying for leave to attach debts due to Kwame Kwakye from the Bank of West Africa and Barclays Bank to answer a judgment debt and costs recovered against the said Kwame Kwakye by T. W. Lomnicky & Co., Ltd. I refused an identical application made on behalf of the self-same applicants on 16 December 1964.
Before dealing with the merits of these motions, it is necessary to relate briefly the history of this matter which is somewhat comprehensive. As I said, on 16 October 1964, I found both respondents guilty of stealing the sum of £G52,000 belonging to the applicant, Akande. I acceded to an application by the prosecution and made an order on both respondents to refund to Akande that sum. By reason of the provision of section 147B of the Criminal Procedure Code, 1960,2 this became a civil judgment enforceable in like manner as a judgment in a civil suit between Akande and both respondents.
Accordingly, the applicant took steps to enforce the judgment. On 27 October 1964, the applicant Akande moved this court under Order 42, rr. 31, 34, 35 and 36 of the Supreme [High] Court (Civil Procedure) Rules, 1954,3 for examination of the respondents as to their means of satisfying the judgment debt. The applicant also sought an interim order restraining the respondents from disposing of their property or operating their bank accounts until further order. I granted both applications. On 30 October and 2 November 1964 the respondents were orally examined as to their means to pay the judgment debt.
On 16 December 1964, both respondents applied to me by counsel to stay my order ordering them to pay the sum of £G52,000 to the applicant. Both respondents said they had appealed against my judgment and relied on rule 51 of the Supreme Court Rules, 1962.4 I read that rule as obliging me to suspend the operation of my order and I accordingly granted the application for stay of execution. By that date, some properties of the respondents had been attached in execution of my order and were then in the custody of the deputy sheriff. Counsel applied to me to make an order for their release. I declined to do this as I thought the steps taken so far had been lawful and that it would not be right to apply anything like a relation back theory to invalidate them. I was then not informed on what date the appeal had been filed and when the writ of fi. fa. was in fact taken out.
On the same date, namely, 16 December 1964, as I said, T.W. Lomnicky and Co., Ltd., applied to me by counsel to grant leave to attach the sum of £G1,284 13s. 3d. due to Kwame Kwakye from the Bank of West Africa Ltd. and Barclays Bank to satisfy a judgment debt and costs obtained by that company
against Kwame Kwakye on 18 November 1964. I declined to grant that application. I said then that the moneys now standing to the credit of Kwame Kwakye in the two banks were part of the stolen money and properly belonged to Akande. That sum was in fact insufficient to meet the payment of the sum owed to Akande and I thought that although I was obliged by the mandatory provisions of rule 51 of the Supreme Court Rules, 1962, to suspend the payment of this money to Akande, it would not be equitable to grant the company’s application for garnishee order nisi. I therefore refused it.
On 10 February this year, both respondents applied to me by counsel to review that part of my order of 16 December 1964 in which I declined to release the properties from attachment. On the hearing of the motion, counsel then pointed out to me for the first time, that an appeal against my judgment was filed on 22 October 1964 and that operated by the force of rule 51 of the Supreme Court Rules to suspend my judgment and order of 16 October. It was also brought to my attention then that the application for fi. fa. was not applied for until 17 November. I therefore thought that at the date the fi. fa. was issued there was no operative judgment on which it could lawfully be issued. I held therefore that the attachments were illegal and accordingly reviewed my order of 16 December and ordered the properties then in the hands of the deputy sheriff to be released from attachment. I gather that that has since been done. I said in my ruling of 10 February, that my order releasing the properties from attachment was not intended to prejudice any application that the applicant Akande might be advised to bring under the Criminal Procedure Code (Amendment) (No. 2) Act, 1964. I saw no reason to change my mind about the view I held regarding the application of Lomnicky & Co., Ltd. for a garnishee order nisi. It would seem, however, that both the applicant Akande and the Lomnicky & Co. Ltd., found inspiration from my ruling of 10 February, and accordingly brought the two motions seeking the respective orders I have mentioned.
With regard to the first prayer of Akande’s motion seeking an order restraining persons in possession of money belonging to the respondents from disposing or parting with them, I think it can properly be granted under the provisions of the Act in question. In my opinion, it is a prayer that ought in the special circumstances of this case, to be granted. But this motion has one great procedural flaw. As counsel for the applicant well knows, the only persons who are in possession of moneys belonging to the respondents, are the Ghana Housing Corporation, Barclays Bank and Ghana Commercial Bank, Oda, the Bank of West Africa, Oda, and the Ghana Commercial Bank, Kade. These are the persons who will ordinarily be affected by the order and ought clearly to be given an opportunity of arguing against it. Counsel did not see fit to serve them with copies of this motion and in my opinion, it would not be right to grant this motion without their being served with this application. It seems counsel felt himself obliged to act expeditiously and the desirability of serving these persons with the motion may have escaped him. I propose therefore to withhold making any order on this prayer until this motion has been served on all the parties likely to be affected by the order.
In my opinion, there is no basis for granting the second limb of the prayer in the applicant Akande’s motion. I am not aware of any property that has been transferred by the respondents since the commission of the offences. The applicant did not depose in his affidavit as to any properties known by him to belong to the respondents and transferred by them to any person since March 1964. Clearly I cannot make an order in respect of unspecified property to bind unknown or undisclosed entities and this limb of the prayer ought to be and is refused.
That brings me to Lomnicky’s application. As I understand the argument, Mr. Franklin submitted that his clients are not affected by the suspension which was statutorily imposed on the judgment in favour of Akande by rule 51 of the Supreme Court Rules.5 Although it may be a hard case for the applicant, he
contended that there being no legal bar to his clients recovering their money, they were entitled to the order sought. He also said, I think, that although Act 254 was designed to provide a remedy like the one sought by the applicant, rule 51 stands in his way. Mr. Adjetey’s contrary reply was to the effect that if
there be conflict between Act 254 and rule 51 of the Supreme Court Rules, the former prevailed, the latter being merely a species of delegated legislation.
I can see no conflict at all between Act 254 and rule 51, and in my opinion, the determination of this motion does not depend on any such principle as is contended for on behalf of Akande. The short ground on which I refused to grant the order nisi in favour of Lomnicky on 16 December 1964 was that it
would be inequitable in the special circumstances of this case. I thought then as I still do, that the money sought to be attached was part of the money stolen from Akande. These sums were paid into the bank a day or two after the theft. In view of the conviction of Kwakye, Akande was entitled to recover that money. Indeed I made an order in his favour for the recovery of that sum before Lomnicky issued their writ of summons on 24 October 1964. Akande’s right to that money was not extinguished but merely temporarily suspended by rule 51. To allow Lomnicky to take advantage of the legal bar imposed on
Akande to attach that money for a later judgment, would in effect, permit Akande to be stabbed while his hands are tied behind his back. It struck me as so unjust that I thought the motion should be refused. In dismissing Lomnicky’s application on that ground, I acted entirely on my own motion without recourse to authority. I now find that the view I took of this matter is in fact supported by authority.
It was decided by the English Court of Appeal in 1881 in Roberts v. Death6 that a garnishee order nisi obtained by a judgment creditor to attach money owing to a judgment debtor, ought not to be made absolute if there is reasonable ground for believing that the money sought to be attached is trust money and not really the money of the judgment debtor. This principle was followed and indeed extended by the same court in 1906 in the case of Martin v Nadel7 where it was held that as the making of a garnishee order is discretionary, it ought to be refused if the making of it would be inequitable. Accordingly, the applicants Lomnicky & Co., Ltd. have not only failed to persuade me that my order of 16 December refusing the making of a garnishee order nisi was wrong, but I am entirely satisfied that it was the right
order to make in the circumstances. Accordingly, I have no alternative but to reiterate my refusal of that application.
I have dealt with this motion more fully than I would ordinarily have done because it seems to me that Mr. Franklin has strong feelings on this matter and he will now be enabled, should he think fit, to have this matter considered by a higher court.
In all the circumstances, each party should bear his own costs.
DECISION
Orders accordingly.
J. D.
