IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2019
DR ARCHIBALD FREDERICK MCKENZIE BADOE - (Plaintiff)
GOLD COAST FUND MANAGEMENT LTD - (Defendant)
DATE: 7TH JUNE, 2019
SUIT NO: OCC 25/2019
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
MANSUWA KPENTEY DONGOTEY FOR MARIAM AGYEMAN GYASI JAWHARY FOR THE PLAINTIFF
EMMANUEL AMOAH FOR THE DEFENDANT/JUDGMENT DEBTOR
This ruling is in respect of a garnishee proceeding commenced in this court on the 14th February, 2019.
On 22nd October, 2018, the Plaintiff filed a writ against the defendant for the following reliefs:
a. An order for the payment of the total sums GHC328, 127.43 (Three Hundred and Twenty-Eight Thousand, One Hundred and twenty-seven Ghana Cedis, forty-three pesewas) being the principal sum placed by the Plaintiff with the Defendant as a structured finance investment and which investment matured on 5th September 2018 and ought to have been paid to him at the said date of 6th September 2018 but which sum the Defendant has failed to pay despite repeated demand since 10th September 2018.
b. An order for the payment of all sums due the Plaintiff from the Defendant on the sum of GHC328,127.43 (Three Hundred and Twenty-Eight Thousand, One Hundred and twenty-seven Ghana Cedis, forty-three pesewas) stated I relief (a) supra since 6th September 2018.
c. An order for the payment of the sum of GH50,000.00 (Fifty Thousand Ghana Cedis) and accrued interest thereon invested by the Plaintiff with the Defendant on 24th August 2018 till date of final judgment.
d. / Hundred and Twenty-Eight Thousand, One Hundred and twenty-seven Ghana Cedis, forty-three pesewas) at the prevailing commercial bank lending rate at the date of the judgment or in the alternative at the rate of 27% being the rate of interest the Defendant was paying to the Plaintiff on his structured investment with the Defendant.
e. Cost including legal fees.
On 13th December, 2018 final judgment was entered in favour of the plaintiff/applicant in respect of reliefs (a) to (d) of the claim. Costs of GHc 40,000.00 was awarded against the Defendant.
The plaintiff/judgment creditor/applicant herein went into execution of the judgment and on 6th February, 2019 the court, upon an application by the applicant herein granted a Garnishee Nissi order against the Managing Director or any designated officer of GN Savings and Loans (formerly GN Bank) to appear before the court on 14th February, 2019 to show cause why monies held by them in the account and to the credit of Gold Coast Fund Management Limited, the Defendant/Judgment Debtor herein shall not be used to satisfy the judgment debt entered by the court on 13th December, 2018 in favour of the applicant herein.
When the representative of the garnishee bank, Seyram Komla Kpokpo testified, he told the court that the judgment debtor herein has an account with the garnishee bank and that as at 6th February, 2019 the balance on the account was GHC 29,984.24. He also told the court that the garnishee order was served on his bank on 8th February, 2019. When he was asked by the court to show cause why this amount cannot be used to settle part of the debt of judgment debtor owed the judgment creditor, he responded as follows:
“Gold Coast is in the process of paying all clients whatever is due them. However, there have been delays due to debt owed by the Government of Ghana and other debtors.”
Upon an application by counsel for the applicant, the representative of the garnishee was ordered by the court to produce the bank statement of the judgment debtor from the period when the account was opened to the date of the order (14th February, 2019). The garnishee’s representative subsequently produced the bank statements and the same were tendered in evidence through him. Counsel for the applicant subjected the garnishee’s representative to extensive cross examination on the bank statement.
A garnishee proceeding is a process whereby money due to a judgment debtor from a third party, the garnishee, is seized and paid over to the judgment creditor in satisfaction of the judgment debt. See Order 47 rule 1 (1) of the High Court (Civil Procedure) Rules, 2004 (CI 47). The judgment to be enforced by garnishee must be for payment of money.
In her written submission, learned counsel for the applicant has among other charges stated that the garnishee has presented to the court a bank statement which cannot be described as credible. Counsel has therefore invited the court to make an order directed at the garnishee to pay the judgment creditor all the sums due him.
I have examined the bank statements submitted by the garnishee and it is apparent on the face of the record that as at 6th February, 2019 the balance on the judgment debtor’s account stood at GHC 29,984.24. At the time the garnishee order was served on the garnishee the balance on the account stood at GHC 20,545.19.It was also discovered during cross examination of the garnishee’s representative that the judgment debtor applied to open new bank accounts with the garnishee. This is evident by Exhibits D, E and F. On the face of the exhibits, the account numbers were captured in ink and these numbers were confirmed by the garnishee’s representative, as account numbers belonging to the judgment debtor. However, statements relating to the said account numbers are not in evidence for the court to ascertain whether the garnishee holds more money on behalf of the judgment debtor. In fact, the applicant never requested for the production of the said bank statements. Thus, the garnishee’s evidence that it held GHC 29,984.24for the judgment debtor when the Garnishee Nissi order was issued and the balance on the account when the order was served still hold sway. Having established from the evidence on record that the garnishee does not hold money belonging to the judgment debtor which amount to the total debt owed to the judgment creditor/applicant by the judgment debtor, it would be unfair to order the garnishee to pay the judgment creditor all the amount due him. The garnishee and judgment debtor are two separate entities. Based on the evidence before me, I am unable to conclude that there is mutual liability between them. Therefore, the garnishee cannot absorb all the debt of the judgment debtor. Per Order 47 rule 1 (1) of CI 47, the garnishee can only pay to the judgment creditor money belonging to the judgment debtor.
The garnishee has not shown cause why the money held by them to the credit of the judgment debtor cannot be used to settle part of the indebtedness of the latter owed the judgment creditor. Consequently, the Garnishee Nissi order dated 6th February, 2019 is made absolute. The garnishee is hereby ordered to pay an amount of GHC 20,545.19 to the judgment creditor forthwith.