• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  CAPE COAST - A.D 2017
  

D. DEGRAFT AIDOO - (Plaintiff/Appellant)

vs.

J. E. EKUBAN & ORS - (Defendants/Respondents)

JUDGMENT

---

SAEED KWAKU GYAN (J.A)

There seems to be an oddity about this case which appears to pose some conundrum in the determination of the appeal. Two Notices of Appeal are found in the record. Both are filed by the same appellant, namely D. De Graft Aidoo, the Plaintiff/Appellant herein.

 

The first Notice of Appeal found in the instant record of appeal appears on page 152 of the record and was filed on 22/11/2006 while the second one, filed on 14/7/2014 can be seen at page 237. Besides, the conduct of the case itself in the Court below equally presents considerable difficulties. Ultimately, it seems even highly problematic to determine whether there was a judgment properly so-called which was validly delivered in the case at the High Court which heard the matter from which the two appeals had emanated

 

D. de Graft Aidoo, Esq. the Plaintiff/Appellant herein, seems to be a firmly established and quite old Legal practitioner who plies his trade in the Central Regional capital of Cape Coast.

 

On 29/6/1990 the Plaintiff sued out a Writ of Summons against the four named Defendants “jointly and severally, and in their capacities as commissioners of the Central Regional Development Commission, and for and on behalf of all the other commissioners of the Central Regional Development Commission”.

 

The Plaintiff indorsed his writ with the following claims, and thus sought the reliefs set out hereunder;

“ a) A declaration that the Plaintiff is entitled to recover the fees he claims which fees are more particularly set out, inter alia, in the Plaintiff’s letter dated 17^th November, 1993 addressed to the 3^rd Defendant.

b) An order compelling the Defendants and all other commissioners of the centre to comply with the declaration so made by the Court; and

c) Interest on the amount declared to be due and owing to the Plaintiff from 12^th August 1993 to the date of judgment”

 

Accompanying the Writ was a rather rambling 44 paragraph statement of claim. The Defendants filed in response a 20 paragraph statement of Defence on 8/9/1994.

 

The case appears to have had quite an unhappy and tortuous journey to trial. Eventually, the trial commenced on 6^th July, 2004 with the Plaintiff beginning his testimony. Subsequently, the trial suffered further hiccups. On 19/11/2004 the trial was adjourned to 30/11/2004 for continuation, in the absence of the Defendants and their Lawyer.

 

On 25/11/2011 when the case was next called the Defendants and their Legal Counsel were again absent.

 

From the record, the trial judge presumably decided to proceed with the hearing, and to allow the Plaintiff to go on further with his testimony.

 

Strangely enough the record does not show that on that occasion the Plaintiff was duly SWORN IN to continue with his evidence.

 

After the Plaintiff’s seemingly unsworn statement had been made to the Court, the Learned trial Judge then asked Plaintiff whether he would call any witnesses and, upon a positive response, the court simply adjourned the case to 15/12/2004 for continuation.

 

No order was made for hearing notice to be served on the absent Defendants or their Counsel.

 

On 15/12/2014 the Plaintiff’s witness was sworn in to testify in the absence of the Defendants and their Lawyer.

 

The Plaintiff had as yet not been cross-examined on his testimony. And the record does not show that the Court took any steps, and for stated reasons, to exclude the Defendants from cross-examining the Plaintiff. Furthermore, the Plaintiff’s witness having concluded his evidence- in-chief on the said 15/12/2004, the Court, without giving any indication with regard to the cross-examination of the Plaintiff’s aforesaid witness, suffered the Plaintiff to purportedly close his case and to proceed to address the Court, which he did in two sentences, whereupon the Judge adjourned the case to 18^th January, 2005 for judgment.

 

There is no indication, on the face of the record, that the Court had decided to close the Defendants’ case for any stated reason by barring them from being heard in their defence.

 

The record shows, however, that the Court’s decision, by way of judgment, was delivered on 26/04/2005 in the manner set out at page 139 of the Record of Appeal as follows:

 

“ BY COURT: Judgment is entered for the Plaintiff. Fullreason would be assigned on 6^th May 2005.

Adjourned accordingly”.

 

The record of appeal does not disclose the exact nature of the judgment entered for the Plaintiff. This is significant considering the nature of the Plaintiff’s claim as indorsed on the writ of summons. The “full reasons” which were supposed to be “assigned” on 6/5/2005 were never ever given by the Court. The record does not also disclose that an “Entry of judgment” was ever filed by the Plaintiff/Judgment/Creditor, which could have clarified the judgment which the Learned trial High Court Judge had, on 26/4/2005, purportedly “entered for the Plaintiff”.

 

The record reveals, however, that Lawyers for the Defendants, on 6/5/2005, filed a Motion on Notice to set aside the Court’s earlier judgment, dated 26/4/2005, the return date of which was set for 01/06/2005.

 

Incidentally, the Chief Justice on 03/03/2006 transferred the case from E.M. Boateng J, who had had the conduct of the case and who had given the judgment of 26/4/2005, to Erasmus Gyinae, J.

 

On 29/5/2006, Gyinae, J. heard the application to set aside Boateng J’s judgment and adjourned his ruling to 26/6/2006.[see page 151 of the Record of Appeal].

 

The record does not disclose what occurred on 26/2/2006. However, on page 152 of the record can be found a Notice of Appeal filed on 22/11/2006 by the Plaintiff against a Ruling of the Court dated 20/11/2006.

 

Interestingly, paragraph 2 of the Notice of Appeal disclosing “part of the decision complained of” clearly states as follows:

“(a) The part of the ruling, which restrains the Plaintiff/Appellant herein from going into execution, and also makes the Judge appear ‘Judge in his own cause’

(b) The costs awarded are ridiculously low”.

[emphasis provided]

 

The Relief sought in the appeal was stated thus: “ that everything that the trial did or said beyond dismissing the Defendants/Respondents application be set aside and the Plaintiff/Appellant be at liberty to go into execution. (see page 152 and 153.)

 

The Defendants/Judgment/Debtors do not, from the record, appear to have appealed against the alleged Ruling of 20/11/2006, which supposedly restrained the Plaintiff from going into execution.

 

There is no indication whatsoever that the Plaintiff’s said notice of Appeal, filed on 23/11/2006, was either WITHDRAWN or had in any other way been disposed of.

 

Nonetheless, on 2/10/2013 the Plaintiff filed a Motion Ex parte praying for “an order to go into execution against the Central Region Development Commission, (CEDECDM), the Defendant herein…..”

 

(see page 154 of the record)

 

In the affidavit in support of the said Motion Ex parte, Dominic de Graft Aidoo, the Plaintiff himself who swore to the said affidavit failed or otherwise neglected to disclose to the Court that he had appealed against the Court’s earlier Ruling/Decision restraining him from going into execution of the judgment in the case. Instead he deposed in paragraph 6 of the said Affidavit as follows:

 

“That I have been advised that the only way I can get the Defendant herein to pay the judgment debt is to obtain leave from this Honourable Court to go into execution against the Defendant herein”. (see page 155)

 

The Plaintiff equally did not exhibit or annex to his said Affidavit copy of any “Entry of Judgment”, nor did he exhibit any clear evidence of service of any such Entry of Judgment on the Defendants/Judgment/Debtors in the case.

 

The Court Notes, appearing on page 156, dated 22/10/2013 in the Court below, presided over by Ivy Heward-Mills,J state thus:

 

“Plaintiff present in person

 

Defendant absent

 

He has filed a motion for writ of FIFA

 

He moves in terms of the motion paper and the supporting affidavit

 

By Court: Motion for Writ of execution (FIFA) is hereby granted as prayed”.

 

Strangely, on page 157 of the record is apparently a drawn up

 

“order for leave to into execution” in respect of the same suit No. CS/27/1994 but with a different title, namely:

 

Dominic de Graft Aidoo – Plaintiff/Applicant

 

Vrs

 

Central Region Development

 

Commission (Cedecom)-Defendants/Respondent/Debtor

 

The above stated order declares in full as follows:

 

“ORDER FOR LEAVE TO GO INTO EXECUTION

 

UPON READING the Affidavit of Dominic deGraft Aidoo, Esq. the Plaintiff/Applicant herein in support of a motion Ex-Parte for an Order for leave to go into execution.

 

AND UPON HEARING Dominic deGraft Aidoo, Esq. himself;

 

IT IS HEREBY ORDERED that the Application be and is hereby granted as prayed.

 

IT IS FURTHER ORDERED that leave be and is granted to the Applicant herein ie. Dominic deGraft Aidoo to go into execution against the Defendant/Judgment/Debtor ie. CEDECOM.”

 

The record does not show that there had been an application made and granted for the purpose of either amending the title of the original case or otherwise substituting CEDECOM for the original Defendants in the case.

 

Then on page 158 there is another motion Ex parte with the same title as above, filed on 16/1/2014, which prayed for an order directed at various named Banks to pay to the Plaintiff/Applicant the “judgment debt spelt out in the affidavit attached” in respect of money they were respectively holding to the credit of CEDECOM.

 

The affidavit accompanying the said motion ex parte disclosed in paragraph 6 thereof that the judgment debt together with interest totaled GH¢497,960.61 (see page 159)

 

Page 162 shows a drawn up Garnishee order NISI dated 20/01/2014 directed at certain named Banks for the recovery of the total sum of GH¢497,973.61 in respect of suit No./27/94 titled:

 

D. Degraft Aidoo

 

VRS

 

J. E. Ekuban & 3 ors.

 

On 28/2/2014 the Chief State Attorney of the Attorney General’s Department filed a motion of Appointment of Solicitor on behalf of CEDECOM and on the same day also filed a “Motion on Notice to set aside Garnishee order NISI,” with the return date set for 18/03/2014.

 

For the sake of convenience and clarity the Affidavit accompanying the above stated motion and deposed to by Hannah Taylor (Mrs.), Chief State Attorney is set out as follows:

 

“1) That I have the consent of the Applicant to swear to this affidavit on its behalf and on matters within my own personal knowledge

2) That the Respondent purporting to have obtained judgment against the applicant prayed on the Court to issue an order per the attached marked “A” to Garnishee the accounts of the Applicant in the suit number 27/94 title

D. De-GRAFT AIDOO

VRS

J. E. EKUBAN

E. A. TETTEH

FRANCIS NEIZER ARKO

PETER A. KING BADU-PRAH

3) That subsequently the order was drawn again with Suit No. 27/94 titled

DE-GRAFT AIDOO

VRS

CENTRAL REGIONAL DEVELPOMENT COMMISSION (CEDECOM)

 

Per attached marked “B”

4. That the orders so granted is irregular and same ought to be set aside.

5. Wherefore I swear to this Affidavit in support.

(see page 171-172)

 

A search filed on 28/2/2014 by the said chief State Attorney revealed the following results:

“1) Whether Cedecom was substituted for the defendants per an order of the Court? No

2) If yes when? –

 

3) Whether Cedecom was served with the order of substitution and the necessary documents? No

4) If yes when were they served and on whom was it served? –

5) Whether judgment was entered against Cedecom? No. Judgment was entered against the Defendants.

6) If yes date on which judgment was delivered. 26^th April, 2005

7) Whether an entry of judgment was filed? No.

8) If yes when was it filed? –

9) Whether the entry of judgment was served.-

10) If yes on whom was the entry of judgment served? –

11) Whether a certificate of liability was issued by the registrar? No

12) If yes when was it issued and on whom was the certificate of liability served?-

 

DATED AT THE ATTORNEY GENERALS DEPARTMENT, CAPE COAST THIS 28^TH DAY FEBRUARY 2014”.

 

The Chief State Attorney on 11/3/2014 filed a supplementary affidavit in support of her motion to set aside the Garnishee order NISI and attached certain documents, marked Exhibit “A-H”,

(see pages 178 to 196)

 

On 11/3/2014, the Plaintiff filed an Affidavit in opposition to the motion seeking to set aside the Garnishee order NISI. On 13/3/2014 he filed another Affidavit in response to the Chief state Attorney’s supplementary Affidavit. And on 17/3/2014 he filed yet another Affidavit in

“further reply to supplementary affidavit in support” filed on 11^th March 2014”

 

The motion on Notice to set aside the Garnishee Order NISI was hotly contested. The hearing covered several days of legal submissions in Court. The Plaintiff additionally presented an elaborate written address covering fifteen pages of type-written material.

 

On 7/7/2014, Ivy Heward-Mills, J upheld the application and set aside the Garnishee Order Nisi.

 

Her ladyship delivered herself simply in the manner as follows:

 

“RULING:

The High Court by its inherent jurisdiction can suo motu set aside or reviews (sic) its orders if it is in error as in principle by MOSI V. BAGYINA.

Motion is hereby granted as prayed. The Garnishee Order is set aside.”

 

Being dissatisfied with and aggrieved by the above stated decision of the court dated 7/7/2014, the Plaintiff appealed, by way of a Notice of Appeal filed on 14/7/2014, praying the Court of Appeal to set aside Ivy Heward-Mills J’s order which vacated her earlier Garnishee Order Nisi. The Plaintiff/Appellant sought further reliefs to the effect that the Court of Appeal should suo motu make the lower Court’s original Garnishee order Nisi ABSOLUTE and order the relevant Banks to pay to the Plaintiff/Appellant herein all moneys standing to the credit of CEDECOM in satisfaction of the judgment debt.

 

The Grounds of Appeal, which appear on page 238 of the record state in full as follows:

“a) The ruling and/or decision cannot be supported by the affidavit evidence on record and the facts and events that have taken place in this suit.

b) The Judge, Her Ladyship Ivy Heward-Mills (Mrs.) J. misunderstands the law covering the application that came before her and its legal foundation, and the Plaintiff’s written submissions against the said application.

c) The ruling consciously commits the legal fallacy of reductionism

d) Since the Judge, Her Ladyship Ivy Heward-Mills (Mrs.) J, merely stated the decision and/or ruling of the Court and orally sought to explain her decision or ruling, the Plaintiff is unable to fully file all his grounds of appeal. As soon as he receives the copy of the ruling and/or decision he has applied for, the Plaintiff will file any further grounds of appeal that need to e filed”.

 

I have perused the Plaintiff/Appellant’s written submissions filed on 30/9/2016 and come to the conclusion that, as far as the Plaintiff/Appellant is concerned, the appeal which he had chosen to prosecute presently is the one which he filed on 14/7/14 against the Ruling of Ivy Heward-Mills, J, dated 7/7/2014, by which the Learned Judge vacated her previous decision granting Garnishee order Nisi in furtherance of an execution process initiated by the Plaintiff/Appellant herein. This means that the instant appeal process precludes or otherwise excludes the Plaintiff’s previously filed Notice of Appeal, dated 22/11/2006, which was alluded to in the very first paragraph of this judgment.

 

It would seem to me that the Plaintiff/Appellant’s grounds contained in his motion of Appeal filed on 14/7/2014 substantially and significantly fall foul of Rules 8(5) (6) and (7) of the Court of Appeal Rules, 1997, C.I. 19, which state as follows:

 

“5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the appellant intends to rely at the hearing of the appeal without an argument or a narrative and shall be numbered consecutively.

6) A ground which is vague or general in terms or which does not disclose a reasonable ground of appeal is not permitted, except the general ground that the judgment is against the weight of the evidence.

7) A ground of appeal or a part of the appeal which is not permitted under subrule (6) may be struck out by the Court of its own motion or on application by the respondent”.

 

It would be noted that the above stated rules find similar expression in the Supreme Court Rules, 1996, C.I. 16, namely Rule 6 thereof regarding the grounds of appeal.

 

In the case of F.K.A Company Ltd and Anor V. Nii Ayikai Akramah II and 4ors [2016] 101 G.M.J.

186, Akamba, JSC decried of appeal by Counsel.

 

Akamba, JSC lamentably declared as follows:

“ It is important to stress that the adjudication process thrives upon law which defines its scope of operation. It is trite to state for instance that nobody has an inherent right of appeal. The appeal process is the creature of law.

Any initiative within the context of the adjudication process must be guided by the appropriate, relevant provision be it substantive law or procedural law. As Courts, if we fail to enforce compliance with the rule of Court, we would by that lapse be enforcing the failure of the adjudicating process which we have sworn by our judicial oaths to uphold.

 

The matter before this Court presently has been initiated through the appeal process and must therefore be conducted and guided by the Supreme Court Rules (1996), C.I. 16……

 

As Courts by law we administer justice according to law and equity which are strictly guided by laid down rules fashioned out over the centuries to guide our conduct. In Ayikai V Okaidja III (2011) SCGLR 205 this Court did stress the fact that non-compliance with the rules of Court have very fatal consequences for irregularity but raise issues that got to the jurisdiction” [Ref pages 190-191 of the Report].

 

In the said F.K.A. Co. Ltd case (supra) the Supreme Court proceeded to strike out all but one of the seventeen (17) grounds of appeal as falling foul of the relevant Supreme Court Rules.

 

Having carefully examined the grounds of appeal set out in the present appeal (page 238 of the record) I am satisfied that virtually all the said grounds of appeal do not pass muster of the rules and ought to be struck of. However, though inelegantly drafted, I would save the first ground of appeal and consider it to be cast in the mould of the omnibus ground of appeal, namely, that the judgment/Ruling is against the weight of evidence.

 

The other grounds of appeal, in my respectful view, obviously go against Rules 8(4), (5) and (6) of the Court of Appeal Rules, 1997, C.I.19, in that they either fail to particularize the alleged misdirection or error of law: or that they are argumentative or otherwise vague, general or disclose no reasonable grounds of appeal.

 

Accordingly, I hereby strike out grounds (b),(c) and (d) of the notice of appeal filed on 14/7/2014. (see page 238 of the record).

 

In the circumstances, the only ground of appeal cognisable in the present appeal is, therefore, the first ground of appeal which has been reframed or reconstituted to take the form of the omnibus ground of appeal, namely, that the Judgment/Ruling is against the weight of evidence.

 

Now, in the matter of an appeal, a long established proposition of law which has found statutory support in Rule 8(1) of the Court of Appeal Rules, C.I.19, is that, an appeal shall be by way of rehearing.

 

 

 

It is also trite that when it is contended that a judgment or ruling is against the weight evidence, then not only does the burden of proof lie on the appellant to establish that the impugned judgment has no support in the evidence and material on record but that the said complaint also empowers the Appellate Court to generally review the entire record of the trial and hence to examine the totality of the evidence before the Court in order to determine for itself whether or not the judgment is sustainable in fact and in law.

 

See: F.K.A. Co. Ltd and Anor V. Ayikai Akramah II and ors (2016) 101 GMJ 186: Akuo –Addo V. Catheline (1992) IGLR 377;

Tuakwa V. Bosom (2001-2002) SCGLR 65.

 

Where the appellate Court determines that the conclusions or findings made by the Court below are not supported by the evidence on record or that they are otherwise perverse, the appellate Court may set them aside. [Ref; Achoro and Anor. V. Akanfela (1996-1997) SCGLR 209; Koglex Ltd (N0. 2) V. Field (2000) SCGLR

 

I have examined the record thoroughly and dispassionately. I have examined the almost telegraphic ruling of the Learned trial Judge which has been impugned in the present appeal as well as considered the written submissions of Counsel in the case.

 

I deeply regret to say that the written submissions of the Plaintiff/Appellant herein appears to be rather unorthodox in form, rather rambling and does not conform to the grounds of appeal sought to be relied upon. What I can make of the Plaintiff/Appellants compliant generally though is that it alleges that the learned trial Judge was biased, arbitrary and capricious in her decision and further that the Judge did not exercise her discretion properly in the light of the evidence and material put before her. The learned Plaintiff/Appellant also contended that the Chief State Attorney who presented herself as Lawyer for the Central Region Development Commission (CEDECOM), the Applicant which moved to set aside the lower Courts earlier Garnishee Order Nisi had no locus in that regard.

 

In the present appeal, can it properly and justifiably be said that the appellant had succeeded in demonstrating that the impugned decision/Ruling was wrong either in law or on the facts based on the grounds of appeal filed on this case or that, further or in the alternative, by virtue of Rule 8(8) of the Court of Appeal Rules 1997 (C.I.19) to the effect that the Court may make a determination on the basis of other grounds which the Court itself could raise from the record of appeal.

 

It may well be said that the seemingly telephonic nature of the ruling left much to e desired.

 

The nature of the matter before the Court below, and hence the issue before this Court for determination fall within a rather narrow compass.

 

The simple issue is; was the Court below justified or right in setting aside its own Garnishee order Nisi having regard to all the circumstances of the case before it?

 

First of all I incidentally find the attack launched against the Chief State Attorney by the Plaintiff/Appellant to be misconceived and without merit. Clearly, the evidence on record shows that the Central Region Development Commission (CEDECOM) was at all material times an agency or development oriented entity set up by and operating under the auspices of the Central Regional Administration which falls under the Executive Branch of Government. It is an established fact that CEDECOM was at all times material to the present case an unincorporated body an entity with no power to sue or be sued but which remained an agency of state.

 

Article 88 of the Constitution of the Republic of Ghana, 1992 provides as follows:

“ (1) There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal Legal adviser to the Government

(5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the state; and all civil proceedings against the state shall be instituted against the Attorney-General as Defendant.

(6) The Attorney-General shall have audience in all Courts in Ghana”.

 

It is beyond doubt that the Chief State Attorney is the Attorney Generals representative.

 

Now, what was the nature of the application before the Court.

 

 

The Plaintiff had in his original suit sued certain named persons jointly and severally alleged in the capacity as Commissioners of non-incorporated entity known as Central Region Development Commission (CEDECOM). He sued them purportedly as representing the Board of Commissioners of CEDECOM for a claim connected with the alleged non-payment of professional legal fees for work he had purportedly done for or on behalf of CEDECOM.

 

The Plaintiff eventually obtained some kind of judgment in which the trial Judge merely declared that “Judgment is entered for the Plaintiff”, without more, and promised to assign :full reason: later. That never happened, as noted earlier on in this judgment.

 

As pointed out previously in this judgment the Plaintiff subsequently applied for and obtained a Garnishee order Nisi by which he sought to attach monies standing to the credit of CEDECOM in various Banks.

 

The Attorney General Department intervened on behalf of CEDECOM by way of an application to set aside the Garnishee order Nisi. It was the contention of the Chief State Attorney that CEDECOM was not judgment/debtor by which its accounts in the cited Banks could be attached through Garnishee proceedings. It was further contended that the process which originated the Garnishee proceedings was irregular and improper to the extent that CEDECOM was directly set out in the title of that process as the “Defendant/Judgment/Debtor” (see page 158 of the record)

 

It may at this point just be observed in passing that a critical examination of the record, as outlined earlier on in this judgment, does suggest that the proceedings leading to Boateng J’s purported judgment entered on 26/4/2005 raised very grave difficulties and seem to be fraught with apparently fundamentally irregularities. But that obviously is not the immediate issue for determination in the present appeal. Accordingly, I do not feel called upon to make a definite determination of that matter, on the merits, in the present appeal in this judgment, except for its “remote” and tangential relevance to the execution process leading to the present appeal.

 

For instance, the aforesaid purported judgment of 26/4/2005 provides no clarity in relation to the supposed judgment debt which the Plaintiff sought to enforce by way of the execution processes he set in motion culminating in the present appeal.

 

Additionally, it was in the attempt by the Defendants to set aside the said “judgment” which led to Gyinaye, J’s decision 20/11/2006 clogging any attempt by the Plaintiff to enforce Boateng, J’s judgment of 24/4/2004 until the full reasons for the said judgment had been delivered and which in turn led to the Plaintiff’s first appeal in this case filed on 22/11/2006. (See page 152 of the record). As noted previously, that appeal is yet to be prosecuted by the Plaintiff. And so it remains, apparently, pending to date.

 

And now, turning to the merits of the instant appeal. Was Ivy Heward-Mills, J’s decision of 7/7/2014 to vacate her earlier garnishee order Nisi sustainable in law and justified in the circumstances disclosed by the record?

 

I believe there is more than ample justification for her decision.

 

The steps taken by the Plaintiff/Appellant herein in obtaining that garnishee order Nisi are so obviously tainted with such fundamental irregularities and improprieties as to have rendered the impugned garnishee order Nisi null and void.

 

To begin with, as pointed out above, Gyinaye, J’s ruling of 20/11/2006 effectively restrained the Plaintiff from enforcing Boateng, J’s decision of 20/4/2005 until the reasons for his said judgment had been “assigned”. Until that decision was set aside and the impediment imposed by the decision accordingly removed, the processes filed to enforce the judgment of 24/4/2005 were premature and fundamentally improper and hence irregular. Any decision given on the back of such premature step would be rendered null and void for want of jurisdiction.

 

Additionally, the search results at page 193 of the record establish that no leave was granted to amend the writ and substitute CEDECOM for the original Defendants in the suit who technically-speaking were the judgment/debtors. To unilaterally commence Garnishee proceedings under the guise or umbrella of a new title which now made the Central Region Development Commission (CEDECOM) the “Defendant/Judgment/Debtor” (page 158) bordered on fraudulent misrepresentation and accordingly constituted a very gross irregularity which rendered the said process null and void.

 

Worse still, the said Garnishee application filed on 16/1/14 (page 158) was obviously filed pursuant to or rested on the back of the Plaintiff’s previous ex parte application for leave to go into execution filed on 2/10/2013 which was made under the original title, namely, Dominic de Graft Aidooo V. J.E. Ekuban and 3 others. (see page 154). But even with regard to this particular process, the Plaintiff clearly smuggled in the following into the title in relation to the Defendants; “All as and in the capacity of Commissioners of the Central Region Development Commission (CEDECOM)”. Compare this with the original title of the case filed on 29/6/94 which can be found on page 1, for the Writ, and page 2, of the record, for the Statement of Claim.

 

Strangely, the order purportedly drawn up in furtherance of the leave to go into execution comes under the case titled: Suit No. CS/27/1994- Dominic de Graft Aidoo (Plaintiff/Appellant) vrs Central Region Development Commission (CEDECOM) (Defendant/Respondent/Debtor).

 

Besides, whereas the Plaintiff declared in paragraph 3 of the Supporting Affidavit that he had served “entry of judgment and cost” in respect of a judgment which had on 26/4/1995 been entered in his favour, he failed or otherwise neglected to exhibit copy of the alleged entry of judgment as well as evidence of due service of the alleged entry of judgment on all the Defendants, they having been sued jointly and severally. (See page 155).

 

Page 139 of the record clearly establishes that Boateng, J entered judgment in favour of the Plaintiff on 26/4/2005 and not 26/4/1995 as sworn to by the Plaintiff.

 

Furthermore, in contrast, and clearly contradicting the above deposition by the Plaintiff, is the result of search dated 28/2/14 (page 193) which establishes that no entry of judgment was filed or served.

 

Equally significant, and even more important, in relation to the Plaintiff’s ex parte application for leave to go into execution of the judgment entered in his favour was the signal failure by the Plaintiff to disclose in the Supporting Affidavit, sworn to by himself, that Gyinaye, J had in fact by his ruling dated 24/10/2006 in connection with an earlier application to set aside Boateng, J’s judgment dated 26/4/2005 restrained the parties from acting on the said judgment until Boateng, J had delivered the reasons for his judgment; and that, being aggrieved he had appealed against Gyinaye, J’s aforesaid restraining order which was still pending.

 

The failure to disclose such a material fact in that ex parte application was sufficient ground to nullify the outcome/decision of the said application which was based on an undoubted exercise of the Court’s discretionary power. See; Republic v. High Court, Accra; Ex parte Salloum and ors (Senyo Coker Interested party) [2011]SCGLR 574; R V. Kensington Income Tax Commissioner; Ex parte Princess Edmond de Polignac [1917] 1 KB 486; CA.

 

It is also worthy of note that the Affidavit in Support of the Plaintiff’s ex parte motion praying for leave to go into execution did not specify or disclose the exact amount constituting the judgment debt for which an order of the court was being sought to enforce same (see page 155).

 

It is obvious that Boateng, J’s judgment of 26/4/2005 equally did not disclose or specify any definite amount of money for which he had entered judgment in favour of the Plaintiff. Indeed, it is difficult to classify the Plaintiff’s action as a clear liquidated claim in view of the reliefs sought and indorsed on the Plaintiff’s Writ. (see page 186 of the record).

 

Additionally, it is not so apparent, from the record, whether or not the Plaintiff’s claim/action, being purportedly one for the recovery of legal fees, did comply with the procedural requirements of the Legal Profession Act.

 

Despite the above factors, the Plaintiff still felt emboldened (and in fact doing so for the first time) to lay a claim for the specific sum of GH¢ 497,960.61 which he declared to be the “judgment debt and interest” for which he sought payment by way of Garnishee proceedings (see paragraph 6 of the Affidavit in support of his motion ex parte filed on 16/1/2014 – page 159 of the record).

 

How the specific sum of GH¢ 497,960.61 came to constitute the judgment debt and interest is not apparent from the record of appeal.

 

Curiously, whereas the Affidavit Supporting the motion ex parte in relation to the original Garnishee proceedings filed on 16/01/2014 only deposed to the total sum of GH¢ 497,960.61 as the whole amount constituting the alleged judgment debt together with interest, the drawn up order of attachment of funds in respect of the said application dated 20/01/2014, found on page 162 of the record, shows a breakdown which is captured by the drawn-up order in the manner as follows;

“IT IS HEREBY ORDERED that all monies standing to the above-named Judgment-Debtors in the sum of GH¢ 497,960.61 be attached to answer a Judgment in this Court dated the 26^th April 1995 for the sum of GH¢ 298,980.00 and interest of GH¢198,980.00 together with the cost of the Garnishee proceedings being GH¢ 13.00 which sum of GH¢497,960.61 remains due and unpaid”. (See page 162 of the record).

 

Significantly, the Judgment/Debtors named in the above stated process, as shown in the title of the suit are:

 

J. E. Ekuban

 

E. A. Tetteh

 

Francis Neizer Arkor

 

Peter A. King Badu-Prah

 

Strangely enough, the Court process which sought to give notice for the Garnishee to appear before the Court to show cause does not establish, on the face of the record, ( page 163) that it was recorded to be served on the above Four(4) referred to Judgment/Debtors

 

Contrary to order 47 rule 3(1) which provides as follows:

“ 1) An order under rule 1 to show cause shall, at least seven days before the time appointed for the further consideration of the matter, be served on the

a) Garnishee personally; and

b) Judgment debtor unless the court otherwise directs”

 

Such non-service tends to nullify the process: See R v High Court, Accra, Ex parte: Salloum and ors (2011) SCGLR 574

 

It is also worthy of note that Order 41 rule 6 provides that, subject to the exceptions specified in rule 6(2), every order of the Court “ shall be drawn up unless the Court otherwise directs”.

 

And, Order 41 rule 7(1) requires that a party seeking to have a judgment entered shall draw up the judgment and present it to the Registrar for entry.

 

Order 41 ruled 7(3) also provides that an “order required to be drawn up shall be drawn up by the party in whose favour the order is made….” (within 7 days after being made).

 

It is obvious from the record that the Plaintiff neglected to file an entry of judgment before embarking upon his effort to enforce the judgment in his favour.

 

In the light of all the above factors and considerations, it is clear that the Plaintiff’s process/application by which he sought to obtain the Garnishee order Nisi, which directly and detrimentally affected CEDECOM, the Applicant/Respondent herein, was fundamentally flawed and primarily and patently irregular. The Garnishee order Nisi which was obtained by the Plaintiff/Appellant herein through such a flawed process was accordingly rendered null and void.

 

CEDECOM, as an entity which was to be detrimentally affected by the said Garnishee proceedings, which sought to attach its credit holdings in the various banks, was eminently entitled to take the steps it took to set aside the said Garnishee Order Nisi.

 

In the case of NCS LTD. V. INTELSAT GLOBAL SALES AND MARKETING LTD [2012] SCGLR 218 at PAGE 229-230,

 

Atuguba, JSC is reported to have pointedly declared as follows:

 

“ It is now trite law that a Court which makes a void order or a superior court can set aside such a void order no matter

 how the void order is brought to its notice” [emphasis provided].

 

See also: Agyemang (substituted by) BANAHENE V. ANANE [2013-2014] SCGLR 241 @ 250 per Wood, CJ.

 

Indeed, it is fair to affirm in all the circumstances of this case, as outlined above in this judgment, that the Plaintiff/Appellant’s conduct or action, particularly with respect to the processes seeking to enforce the judgment of Boateng, J dated 26/4/2005 could properly be classified as an egregious abuse of process. See: Sasu V. Amua Sekyi and Anor [2003-2004] SCGLR 742 per Date-Bah, JSC.

 

The process leading to and the decision touching upon the Garnishee Order Nisi having clearly been tainted by the mark and stamp of gross irregularity, the Learned trial Judge, Ivy Heward-Mills, J was

 

fully within her right and power to make her decision of 7^th July, 2014 by which she duly set aside, as void, her previous or earlier decision granting the Garnishee Order Nisi dated 20/01/2014 and 27/02/2014, her attention having been drawn to all the salient matters that tendered to render her aforesaid decisions void.

 

In the event, the Plaintiff’s appeal is bound to fail and it is consequently dismissed as being wholly without merit.

 

Accordingly, the decision of Ivy Heward-Mills, J sitting at the High Court, Cape Coast, and dated 7^th July, 2014 is hereby affirmed.