EASTERN ALLOYS COMPANY LTD vs NATIONAL INVESTMENT B ANK
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2018
EASTERN ALLOYS COMPANY LTD - (Plaintiffs/Appellant)
NATIONAL INVESTMENT BANK - (Defendant/Respondent)

DATE:  26 TH APRIL, 2018
CIVIL APPEAL NO:  H1/52/2018
JUDGES:  FRANCIS KUSI-APPIAH J.A. (PRESIDING), AVRIL LOVELACE-JOHNSON J.A., HENRY A. KWOFIE J.A.
LAWYERS:  K. O. LARBI FOR THE PLAINTIFF/APPELLANT
BRIGHT OKYERE ADJEKUM FOR THE DEFENDANT/RESPONDENT
JUDGMENT

HENRY KWOFIE  J.A.

On the 21st of December 2016, the High Court, Accra found the defendant/Respondent liable for the wrongful closure of the plaintiff’s factory premises but refused to award the plaintiff any damages. Dissatisfied with the decision of the High Court, the plaintiff mounted this appeal by a Notice of

Appeal dated 21st March 2017 which is at pages 404A – 404B of the Record of Appeal. The grounds of appeal set out in the Notice of appeal were:

a. That the judgment is against the weight of evidence.

b. Further grounds will be filed when the plaintiff receives a copy of the judgement.

 

On the 24th of October 2017, this Court granted the appellant leave to amend its Notice of appeal. The amended notice of appeal was filed by the appellant on 30th October 2017. By the amended notice of appeal, the defendant added an additional ground of appeal that is:

c. The learned trial judge erred in failing to award the plaintiff damages notwithstanding the finding that the closure of plaintiff’s factory by the deputy sheriff under the direction of defendant for 3 years was wrongful and unlawful thereby occasioning a substantial miscarriage of justice.

 

The judgement appealed against is at pages 382 to 404 of the Record of Appeal Vol 1. The relief sought from the Court of Appeal is the reversal of the judgment and all consequential orders and judgment to be entered in favour of the plaintiff.

 

Before dealing with the arguments advanced in support and against this appeal, I will give a background of the case.

 

By an amended Writ of Summons filed on 22nd of June 2015 plaintiff claimed against the defendant the following reliefs:

1. GH¢4,386,000 being damages suffered by the plaintiff as a result of the closure of plaintiff’s factory by the defendant.

2. Interest on the said sum from 6th September 2006 to date of final payment.

3. Removal of the assets seized in execution from the plaintiff’s premises.

4. Damages of GH¢733,630.00 being the value of equipment and accessories stolen from the factory premises during the period of wrongful attachment.

5. Damages of GH¢18,925,200 being total rent claim for the 40 months period of wrongful attachment.

6. Costs.

 

In a 20 paragraph amended statement of claim which accompanied the amended writ of summons, the plaintiff/appellant hereinafter referred to as the plaintiff averred that it is a Company registered under the laws of Ghana and was at all material times carrying on the business of manufacturers of extruded aluminum products billets while the defendant/Respondent (herein after referred to as the defendant) carries on the business of banking. The defendant obtained judgment against the plaintiff herein on the 16th of February 1999 in a suit entitled National Investment Bank Vs. Eastern Alloys Company Ltd and 3 others Suit No. C682/98 in the sum of ¢965,175,043 old cedis. On the 11th of December 2003, the plaintiff paid ¢731,574,000 out of the said amount.

 

It is the further case of the plaintiff that on 27th February 2004 upon an application filed by the plaintiff herein as the 1st defendant in that suit to set aside the process of execution, the High Court presided over by Dzakpasu J in the said Suit No. 682/98 by consent of the parties appointed Eddie Nikoi Consultancy a firm of chartered accountants to go into accounts between the parties. After the conclusion of the reconciliation process, the Court accepted the figure of GH¢1,283,616.00 as the outstanding indebtedness of the plaintiff to the defendant. Pursuant to the said ruling, the defendant filed an Entry of judgment for the sum of GH¢1,283,616 together with interest from 29th November 2006 to date of final payment. Pursuant to the judgment, the defendant herein as the plaintiff/judgment creditor set in motion execution processes by filing a motion on Notice for Reserve Price of the plaintiff’s plant, machinery, office furniture and equipments. The valuation Report described the assets of the plaintiff which were attached and valued which excluded the premises of the plaintiff Company. Subsequently on 9th March 2009 the High Court dismissed the plaintiff’s application to set aside the sale and confirmed the sale which according to the defendant had occurred long before the plaintiff’s application to set aside. It is the further case of the plaintiff that despite the fact that the auction sale was confirmed by the Court, no auction sales account had been filed by the auctioneer and the plaintiff’s assets seized in execution continued to be on the premises.

Defendant then caused the premises to be attached and locked up.

 

The plaintiff further averred that as a result of the closure of the factory for three years, they were unable to operate same and orders from Newmont Ghana Ltd to supply core trays could not be fulfilled. Additionally, the closure of the factory caused cracks to the building. By reason of the matters aforesaid, the plaintiff suffered loss and damages which they particularised. The plaintiff further averred that on February 4th 2011, the High Court, Accra presided over by Dzakpasu J in the Suit No. C682/1998 gave an order that the plaintiff’s factory premises which had been wrongfully attached in execution by the defendant be reopened without delay. Consequently bailiffs attached to the High Court went and executed the order to re-open the factory premises and took an inventory of the plant and machinery therein. The certificate of inventory disclosed that several plants and machinery and accessories which were present prior to the attachment of the factory premises by the defendant had been stolen and/or vandalized, thus necessitating the institution of this action.

 

The defendant denied the plaintiff’s claim and asserted that they did not carry out the attachment and or locking up of the plaintiff’s premises but rather these were carried out by the sheriff. Accordingly, they had no liability for the alleged losses suffered by the plaintiff if at all. The defendant contended that they sued out a writ of Summons against the plaintiff Company and its directors in Suit No. C682/98 entitled NIB Vs. Eastern Alloys and 3 others for an order for Judicial Sale of the whole of 1st defendants undertaking and assets together with the chattels described in the Deed of Assignment and General Charge executed and dated 11th June 1998 in favour of the defendant as security for the sum of $355, 704.17 or its cedi equivalent; and a further sum of GH¢11,654,485.97. They sought in the alternative an order for the appointment of a receiver under the provisions of the Mortgage Decree 1972 (NRCD 96) to manage the business undertaking of the 1st defendant Company until the debts of the Company were fully paid. The defendant averred that the plaintiff Company and its Directors did not show interest in the suit but rather filed a notice of admission of liability and notice of settlement out of Court. Pursuant to this, final judgement was entered against the plaintiff on 16th February 1999. The plaintiff and its Directors then filed a motion on notice for stay of execution and review of the judgment. The application was not prosecuted by the plaintiff herein and same was accordingly struck out. The properties of the plaintiff were attached and valued and the defendant applied for a reserve price only for the plaintiff to file another motion on notice for Review, stay of execution and payment by instalments which was subsequently withdrawn. The reserve price for the various attached properties of the plaintiff was fixed by the Court.

 

After the fixing of the reserve price, the plaintiff and its directors filed yet another Motion for Stay of execution and payment of the judgment debt by instalment. That application for payment by instalment was granted by the Court only for the plaintiff to default in the instalment payment and defendant was granted leave to proceed with the execution process.

 

The defendant averred that subsequently the plaintiff and its Directors filed several applications for stay of execution. On the 27th of February 2004, the Court ruled on the motion for stay of execution and ordered the parties to go into detailed accounts. On the basis of the report presented by the auditors, the Court entered judgment in favour of the defendant for GH¢1,283,616 together with interest. After an appeal by the plaintiff against the decision of the High Court to the Court of Appeal was dismissed, the defendant took steps to have the plant and machinery of the plaintiff sold. The subsequent sale of the plaintiff’s plant and machinery came to nought as the purchaser lost interest in the property owing to the numerous applications filed by the plaintiff and the protracted litigation. No account sales was therefore filed and no money was paid by the potential purchaser. The defendant states that all efforts to sell the property have failed as various other entities have also caused the attachment of the same property and are also feverishly trying to sell the same property. The defendant contends that the plaintiff’s agenda has been to clearly frustrate the defendant at every turn to prevent the sale of the factory whilst the judgment debt remains unpaid. It is the further case of the defendant that apart from its suit with plaintiff, the plaintiff was also involved in other suits with other creditors who had also taken judgment against the plaintiff in those cases and the self-same factory of the plaintiff had been attached and in some cases even sold. The defendant state that whatever losses plaintiff might have suffered which are denied cannot be attributed to it. (the defendant).

 

At the trial, the plaintiff gave evidence through its Accountant Daniel Toku and called 2 witnesses while the defendant bank also gave evidence through its representative but did not call any other witness. At the end of the trial, the trial judge found that the attachment of the plaintiff’s factory building was wrongful but held that on the evidence, the plaintiff was not entitled to the reliefs claimed by way of special damages.

 

In his written submissions, counsel for the plaintiff/appellant abandoned the other grounds of appeal and argued only one ground of appeal that is that the learned trial judge erred in failing to award the plaintiff damages notwithstanding the finding that the closure of plaintiff’s factory by the deputy sheriff under the direction of defendant for 3 years was wrongful and unlawful thereby occasioning a substantial miscarriage of justice.

 

Arguing in support of this sole ground of appeal, counsel for the plaintiff submitted that the basis of the plaintiff’s claims against the defendant was the wrongful closure of its factory premises by the defendant in suit No. C682/1998 entitled National Investment Bank Ltd Vs. Eastern Alloys Company Ltd and 3 others. The wrongfulness of that act by the defendant had already been ruled upon by Dzakpasu J sitting at the High Court, Accra and was affirmed to a large extent by the learned trial judge in the instant matter. Counsel referred to the decision of the trial judge that the issue of the wrongfulness of the attachment by the defendants of the plaintiff’s factory premises had already been determined on 4th February 2011 in a ruling of Dzakpasu J sitting at the High Court Accra. Counsel agreed with the decision of the trial judge that the issue of the wrongful attachment had already been determined but submitted that the trial judge fell short when she decided not to award the plaintiff any damages for the wrongful closure of its factory. Counsel asserted that although Dzakpasu J in his ruling of 4th February 2011 determined that the attachment of the plaintiff’s factory premises was wrongful, his Lordship did not award any compensation in favour of the plaintiff and there was therefore the need for the plaintiff to commence a fresh action and this is exactly what the plaintiff did by mounting this instant action. Referring to the cases of Attorney General Vs. Faroe Alantic Co. Ltd (2005-2006) SCGLR 271 at 290; Delmas Agency Ghana Ltd Vs. Food Distributions Int. Ltd (2007-2008) 2 SCGLR 748 and Yungdong Industries Vs. Roro Services (2005-2006) SCGLR 816 counsel submitted that whilst the trial judge was right in her finding that the plaintiff could not prove its Special damages, the plaintiff nonetheless made out a case which merited the award of general damages in its favour.

 

Counsel also conceded that although the plaintiff did not endorse its amended writ of Summons and amended statement of claim for general damages, he submitted that recent jurisprudence on procedure supports the reasoning that the learned trial judge ought to have awarded the plaintiff general damages for the wrongful closure of its premises by the defendant notwithstanding that same was not endorsed on the writ of Summons. Counsel further submitted that as the plaintiff therein (the defendant herein) in suit No. C682/1998 in its particulars of attachment directed the deputy sheriff to “seal off” the 1st defendant’s (plaintiff herein) factory premises, the Court should take a serious exception to this directive by the defendant. He asserted that the plant and machinery or movables of the plaintiff were attached in execution so also was the factory premises but the fact of the factory premises having been attached did not mean the premises should be closed down or sealed off. The said factory which was a going concern having been closed for almost 3 years at the direction and or instruction of the defendant which was wrongful, it would not be out of place should this court award the plaintiff exemplary damages which counsel estimated to be an amount of Two million Ghana cedis (GH¢2,000,000.00).

 

In reaction to the above arguments, counsel for the respondent submitted that the respondent had appealed against the ruling of Dzakpasu J dated 04/02/2011 and were unable to say why Her Ladyship the trial judge glossed over this Notice of Appeal as it was on record. Counsel continued that if the trial judge had considered the said Notice of Appeal, she would have restrained herself from pronouncing on the alleged wrongful attachment of the properties by the defendant. Relying on the case of NIB Vs. ROM Engineering Ltd (2015-2016) SCGLR 766 counsel submitted that having regard to the position of the law on executions vis-à-vis judgment creditors, their Lordships at the High Court erred in law in saddling the defendant with liability for the attachment of the plaintiff’s property over the period.

 

Counsel further asserted that the evidence was clear that any losses suffered by the plaintiff in respect of the attachment of the plaintiff’s factory premises is attributable to another entity and not the defendant hence the defendant cannot answer for those alleged losses. He submitted that the plaintiff has not satisfied the judgment debt and the strategy it has adopted now is to take the fight to its creditors by trumping up all manner of similar charges against them in the hope that it can earn some millions of Ghana cedis off the back of one of them.

 

It is established by Rule 8(1) of the Court of Appeal Rules, 1997 (C.I.19) that an appeal is by way of re-hearing. Thus, in considering the appeal, this Court is under an obligation to examine the entire record to ascertain if a party’s case is reasonably probable than not. Also the primary duty of an appellate Court in respect of a judgment based on findings of facts is to examine the record of proceedings to satisfy itself that the said findings are supported by the evidence on record. See the cases of Koglex No. 2 Vrs Field (2000) SCGLR 175 at 185 and Oppong Kofi Vs. Attibrukusu III (2011) 1 SCGLR 176.

 

Also in the case of Akunor Vs. Okai (1977) 1 GLR at 177 Kingsley Nyinah J.A. summarised the basic duty imposed on an appellant where he stated that in order to succeed an appellant must demonstrate that;

i) There was an error of law on the part of the trial judge or

ii) There was some misappreciation by him of the facts and salient issues.

 

Thus an appellant assumed the burden of showing the exact error of law committed by the trial judge as well as pointing to relevant pieces of evidence on record which if properly considered or given the right weight would have resulted in a different outcome favourable to him.

 

The record of appeal and the evidence shows that the plaintiffs case at the trial was based or had its foundation in the ruling of Dzakpasu J in suit No. C682/1998 dated 04/02/2011 wherein His Lordship stated as follows:

“I have observed that the products mentioned above were not considered in the Valuation Report aforementioned. That one callous act was detrimental enough to the applicant’s business. It seems to me in my examination and analysis of the evidence before me that the Respondent bank did not wear any human face at all in the attachment of the applicant’s properties and went far into excesses. It is for these reasons that I find the instant application plausible. In consequence, I shall grant the application and order that the respondent forthwith release to the applicant its factory building wrongfully attached in execution”.

 

Although the defendant/respondent filed a Notice of appeal against the said ruling of Dzarkpasu J on 18/02/2011, the trial judge obviously due to an oversight glossed over this Notice of Appeal and stated in her judgment that no appeal was filed against the ruling of Dzakpasu J. The said Notice of appeal was tendered during the trial as Exhibit 8 (see page 198 of the Record of Appeal Vol.1) Although an appeal was filed, the said appeal has not been heard and is still pending. The trial judge therefore took the view that she was bound by Dzakpasu J’s decision that the attachment of the plaintiff’s factory building by the defendant was wrongful. She stated in her judgement as follows at page 393 of the Record of Appeal Vol 1:

“The Court’s ruling was that the factory building had been wrongfully attached.

The ruling was delivered on 4th February 2011. There is no appeal against it. In the case of Punjabi Vs. Namih (1962) 2 GLR 46 per Adumua -Bossman JSC it was held as follows regarding the effects of judgments of Superior Court of Judicature “The law seems to be clearly enough settled that so long as a judgement of a Superior Court remains undischarged and of full force and effect, it is not competent for another court of co-ordinate jurisdiction to pronounce against its validity, however erroneous it appears to be.

 

Also in the case of Fatal Vrs. Fatal (1999-2000) 1 GLR 331. It was held that:

“ An order of a Court of competent jurisdiction remained valid and unequivocally binding until set aside or reviewed by a judge or Court which made the order or altered by an appellate Court. Furthermore, as a general rule of law, a judge of co-ordinate jurisdiction should not entertain an application which had been personally dealt with by another judge unless

a) as envisaged under the rules, the judgment and orders might have to be reviewed by a differently constituted Court and

b) a new situation had been created which justified recourse to the Courts”. Since the exceptions to the rule do not pertain in this case, this Court then cannot sit in judgement over a decision of a Court of co-ordinate jurisdiction. I will therefore not be drawn in making a decision on issue (g) being whether or not the attachment of the plaintiff’s factory was wrongful. That has been determined”.

 

The trial judge in effect found that the attachment of the plaintiff’s factory premises was wrongful and the defendant as execution creditor was liable for the wrongful execution.

 

Although the trial judge eventually found that the plaintiffs were unable to prove that they suffered losses as a result of the said wrongful execution, this case raises the issue of who is liable for losses arising out of an attachment of property in execution of a judgment debt. The correct statement of the law was set out by the Supreme Court recently in the case of National Investment Bank and 1 other Vs. Rom Engineering Ltd (2015-2016) 1 SCGLR 766.

 

That was a case in which just like the present case NIB had obtained a judgment against Rom Engineering Ltd. Execution was levied against Rom Engineering and its factory situate in Tema was attached and sealed off. Thereafter NIB contracted Westec Security to provide Security Services at the factory. Rom Engineering, claiming to have suffered loss of business and loss of some materials at the factory on the basis that the execution was unlawful, sued NIB and Westec Security. Both the High Court and the Court of Appeal delivered judgment in favour of Rom Engineering. The Supreme Court however disagreed with the 2 lower Courts and unanimously upheld the appeal of NIB and Westec. In the judgment, the Court held in holding 1 per Gbadegbe J.S.C. as follows at page 767-768 of the Report:

“(1) as the attachment had been carried out at the instance of the Sheriff of the High Court, no liability would attach to either defendant by virtue only of the attachment. However, the Justices of the Court of Appeal thought that the execution had been directed by the first defendant NIB and not the Registrar of the High Court. The conduct of the first defendant NIB did not add to or derogate from the responsibility of the Registrar of the High Court at law and was not sufficient to ground liability in the first defendant on the mere ground that the second defendant had been brought on to the land by the first defendant to keep other persons away from the property. With the attachment, the property was placed in the custody of the law for the benefit of those entitled thereto with a special property to the goods being in the sheriff; a right that would enable him to maintain an action for trespass or conversion against any person who took them away. Further, from the admitted evidence, the second defendant Westec Security could not be said to be a servant of the first defendant NIB but was an independent contractor engaged to provide services to the latter. It being so, the first defendant NIB could not be vicariously liable for wrongs committed by the second defendant Westec Security and/or its employees. That was not to say that the second defendant, for that matter, was liable for the loss of earnings. The seizure was an act of the Sheriff of the High Court for which at law none of the defenants was legally answerable. Union Bank of London Vs. Lennanton (1878) 3 CPD 243; Wibraham Vs. Snow (1670) 2 Wms Saund 47; Tinseltine Vs. Robert, Davies, Derbyshire County Council, Welsh Assembly Government [2011] EWHC 1199; and In re Clarke [1898] 1 Ch 336 at 339 cited.

Per curiam: We think that although the first defendant had engaged the second defendant to keep watch over the attached property, that did not create a liability in it for any wrong occasioned by the tort of the security company. The authorities are settled that the mere engagement by one person of another to render services for him without more is not sufficient to make him vicariously liable for his tortious acts”.

 

Having stated the legal position with regard to responsibility for levying executions, I now turn my attention to the evidence in this case. I have read and examined the record of appeal thoroughly and dispassionately and considered the judgment of the trial Court as well as the arguments contained in the written submissions of the parties. Like the trial judge, I am not persuaded that the appellant had sufficiently or adequately discharged the burden cast upon it and shown a proper cause why this Court should intervene and set aside the impugned judgment. In the case of Bisi Vs Tabiri alias Asare (1984-86) GLR 282, Adade JSC delivered himself thus:

“As a judge of fact, it is his peculiar province, listening to the evidence before him, to weigh the several statements on each issue and decide which to believe and which to reject. So long as his conclusion can find support from the record, it is not open to an appellate tribunal, except for just and compelling reasons to dismiss the findings made and the conclusions arrived at by the trial Court”.

 

In her judgment, the trial judge stated at page 392 of the Record of Appeal Vol 1 as follows:

“Regarding plaintiff’s relief for the removal from the premises of the assets seized in execution, it is my view that since plaintiffs themselves said in Exhibit 17 that is the statement of claim and Exhibit 18 the statement of defence in Suit No. AB 34/2014 that the movables in the factory have been destroyed and damaged by GCB following their attachment of it and sale to World Prayer Centre, there is no basis then for the relief sought against defendant herein. I will refuse same."

 

The basis of the plaintiff’s claim against the defendant as stated earlier was that following the attachment of their factory, plant and machinery and the closure of the factory premises by the defendant several plant, machinery and accessories which were present prior to the attachment of the factory premises had been stolen and or vandalized. And yet as the trial judge rightly found, that assertion by the plaintiff was untrue. The evidence on record shows that apart from the defendants, other parties and judgment creditors had access to the factory and had indeed attached the self-same plant, machinery and accessories which the plaintiff claimed had been stolen and or vandalised. The evidence clearly shows that whilst this instant suit was pending at the trial Court, the plaintiff/appellant instituted another action against Ghana Commercial Bank on 27th November 2013 in Suit No. AB 34/2012 entitled: Eastern Alloys Company Ltd Vrs. Ghana Commercial Bank Ltd. The writ of Summons, the statement of claim and statement of defence in that suit was tendered in this suit by the defendant as Exhibits 17 and 18. In the said action, the plaintiff claimed against GCB the recovery of the sum of Seventy-Six Million, Four Hundred and Fifty-Two Thousand Dollars ($76,452,000) with interest from February 2012 to the date of final payment. The statement of claim in that case was very revealing. In paragraphs 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 thereof, the plaintiffs pleaded as follows:

“3 The plaintiff says that on the 24th day of May 2006 upon an action brought by the defendant against the plaintiffs, the defendant obtained judgment for the recovery of various sums together with interest

4. Plaintiff says that after obtaining judgement, the defendant caused the plaintiffs factory facility situate at plot Nos. 34A & B Tema Industrial Area to be attached in execution of the said judgment per writ of Fieri facias and subsequently sold same

5. The plaintiffs further say that although it had movable assets the value of which were substantial to settle the judgment debt, the defendant in utter disregard of the rules of this honourable Court, caused the immovable property of the plaintiff which is the factory facility at Tema to be sold.

6. The plaintiff says that upon an application to declare the sale of its immovable property illegal, the same was granted on the 28th day of May 2012 by this honorable Court

7. The plaintiff says despite the setting aside of the unlawful attachment and subsequent sale of its immovable property by this honourable Court, the alleged purchaser of the property at the instance of the defendant refused to vacate the property

8. Further to paragraph 7 supra, the plaintiff thus instituted an action on the 27th of June 2012 for inter alia an order of eviction directed at the buyer of the property, World Prayer Centre

10. The plaintiff contends that pursuant to the unlawful attachment, and subsequent sale of its immovable property, the defendant caused the purchaser to substantially damage its factory facility therein by removing its plant and machinery

11. Plaintiff says as a result of the unlawful and unwarranted acts of the defendant, it has thus suffered severe loss and damage in its operations

12. Upon recovering possession of its factory facility, the plaintiff says the nature and structure of its factory facility had materially changed as a result of the actions of the defendant and it has become impossible to conduct normal operations unlike previously until its facilities, plant and equipment are restored

14 The plaintiff says in a detailed report presented to it by the Risk Clearing House Limited on the 25th day of October 2013, the estimated total costs for the restoration of the factory to its pre-loss state to enable the plaintiff commence normal operations was quoted at Seventy-Six Million Four Hundred and Fifty-Two Thousand United States Dollars ($76,452,000)

15. The plaintiff says the report presented by the Risking Clearing House Ltd sufficiently contains the particulars and basis for the amount estimated to be the costs of restoration of the factory facility”.

 

The similarity between the reliefs claimed in that suit No. AB34/2012 by the plaintiff against Ghana Commercial Bank and that against the defendant that has culminated in this appeal is so striking that it cannot be lost on anyone.

 

The pleadings in the Ghana Commercial Bank suit shows clearly show the modus operandi of the plaintiff herein. It also shows clearly that the plant, machinery and accessories which the plaintiff claim were destroyed by the defendant/appellant are also the subject of the suit against Ghana Commercial Bank. The record also shows that Ghana Commercial Bank attached the said properties and sold them to World Prayer Centre who took possession and went into occupation.

 

Under cross examination Daniel Toku the plaintiff’s representative was asked at page 271of the

Record:

Q. After Ghana Commercial Bank obtained judgment against Eastern Alloys, G.C.B. had your factory premises at Tema attached in execution is that not true.

A. It wasn’t true, we were paying them what we owe them.

Q. Was execution levied against Eastern Alloys pursuant to the judgment Ghana Commercial Bank obtained against Eastern Alloys.

A. Because we were paying them, they did not go further until NIB had our factory closed.

Q. I am putting it to you that you are being untruthful to the Court.

A. What you are saying is not correct.

Q. Not only was your factory premises attached, your factory was sold pursuant to that attachment by G.C.B.

A. It is never so.

Q. The factory was sold to an entity by name World Prayer Center is that not the case.

A. It was when NIB closed our factory that GCB whom we owed at that time also attached the factory building which of course was wrongful and sold it to World Prayer Centre.

 

Further on the plaintiff’s representative was asked at page 272 of the

 

Record of Appeal:

Q. After the sale of the property to World Prayer Centre, World Prayer Centre took over the factory premises and entered possession is that not true

A. That is true. But the sale was wrongful.

 

As the trial judge rightly found, the plaintiff’s representative was not truthful when he sought initially to deny that GBC attached the factory premises, the plant and accessories and sold same to World Prayer Centre who took over the factory premises and entered possession. The fact that World Prayer Center took possession of the factory premises was also confirmed by the 2nd plaintiff’s witness the Engineer Festus Quansah - See page 288 of the Record of Appeal Vol 1. The record also shows that another judgment-creditor of the plaintiff Rana Motors and Metal Works also attached the same factory facility, accessories and plant in execution of a judgment it obtained against the plaintiff/appellant on 20th January 2009 in Suit No. AC 127/08 entitled Rana Motors & Metal Company Ltd Vrs. Eastern Alloys Company Ltd.

 

The writ of Fifa issued by Rana Motors, the order for Reserve price and the Notice of Sale by Public Auction of the said property was tendered by the defendant in the trial as Exhibits 6, 7 and 11 (see page 38 to 44 of the Record of Appeal.

 

The Record of appeal further shows that the plaintiff’s contention that as a result of the attachment of the factory they had no access to the factory was untrue. This is because inspite of the alleged sealing off of the factory, the plaintiffs took a valuer to the factory to revalue the plant, machinery etc. on 1st May 2008. This is borne out by a Valuation Report (Exhibit 16) attached to plaintiff’s affidavit in opposition to Motion on Notice for Reserve Price. The Valuation Report Exhibit 16 is at pages 64 to 71 of Vol 2 of the Record of Appeal.  At page 1 of the Valuation Report Exhibit 16 (page 68 of the Record of Appeal Vol 2) the Report stated: “The items were examined on 1st May 2008 in the presence of an accredited representative of the Company who in addition to identifying the plants and machinery provided information on their operation status”. As the trial judge rightly found “this suggests that the plaintiff had access to the factory after it was sealed off. Praecipe for writ of Fifa had been issued on 13th December 2006 as per Exhibit 3” - See page 400 of the Record of Appeal Vol 1.

 

The record of appeal shows that the plaintiff Company has still not paid its indebtedness to the defendant Company and G.C.B. In my view the plaintiff company is a chronic debtor. Instead of paying these just debts owed its creditors, the plaintiff mounted actions against these 2 judgment creditors G.C.B. and the defendant herein claiming what is substantially the same reliefs.

 

As counsel for the defendant aptly put it in his written submission, “the strategy it has adopted now is to take the fight to its creditors by trumping up all manner of similar charges against them in the hope that it can earn some millions of Ghana cedis off the back of one of them”. This Court will not lend its support to the plaintiff in this unworthy enterprise.

 

In my view, the plaintiff Company was unable to discharge the evidential burden cast upon it on the balance of probalities - See section 11(4) and 12 of the Evidence Decree 1975 (NRCD 323) and the case of Adwubeng Vs. Domfeh (1996-97) SCGLR 660

 

On the whole, this appeal has no merit whatsoever and is accordingly dismissed. The judgment of the trial Court is hereby affirmed.

 

 

 

SGD

 

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