ACCRA - A.D 2019
PRUDENT EXPORT LIMITED - (Defendant/Respondent)

DATE:  16TH MAY, 2019
SUIT NO:  AB/18/2012


i. Introduction:

[1] Against the backdrop of this Court’s ruling delivered on December 17, 2018 pursuant to the Defendant/Applicant’s application for Stay of Execution and to Set Aside Execution of Judgment, the Plaintiff has brought the instant application for the consideration by the Court. In considering the application for stay of execution and to set aside, the Court relied on Order 7 Rule 5 (1) of C.I. 47 and Section 263 of the Companies Act, Act 179 to set aside the Entry of Judgment filed and served. The Court reasoned that the service of the entry of judgment was not in compliance with the law and the rules of Court. At paragraph 33 of the ruling the Court held that:

“In my view after obtaining the judgment, the Plaintiff and in particular Counsel had a responsibility to ensure that the rules of service are complied with in executing the judgment. If the service of the Entry of Judgment which is the precursor to enforcing the judgment was not proper, all other steps taken are null and void”.


[2] Prior to the Court’s ruling of December 17, 2018 the Plaintiff/Applicant had set in motion the execution process and had some properties of the Defendant attached by the Deputy Sheriff further to the filing of the Entry of Judgment and a Writ of Fieri Facias issued in execution of the judgment of the Court. The Registrar of this Court subsequently levied execution against some properties of the Defendant. By this application the Plaintiff/Applicant is praying the Court for an order of preservation and or detention of those properties pursuant to Order 25 Rule 2 of C.I. 47.


[3] In moving the application Counsel for the Plaintiff relied on the motion paper and the 8- paragraph accompanying affidavit and submitted that “the property which were attached pursuant to the entry of judgment which the Court found to be wrongful should be preserved”. According to Counsel the Court has a duty under Order 1 Rule 2 of the High Court Civil Procedure Rules 2004, C.I. 47 to assist a party to avoid extra expenses and cost. To that extent, Counsel submitted that “this Court has the power to order for the detention and preservation of those properties within the meaning of Order 25 Rule 2 of C.I. 47”. According to Mr. Ofosu-Appiah the Plaintiff/Applicant has now served the Defendant/Judgment Debtor with the entry of judgment so releasing the properties to the Defendant at this stage is not the best option because in Counsel’s view the Applicant shall incur extra costs in going back for the properties. Based on the affidavit in support of the application and the submission Counsel prayed the Court to grant the application.


[4] The Defendant/Respondent is vehemently opposed to the application and has filed an Affidavit in Opposition to same. In opposing the application, Alhaji Farouk Seidu relied on the depositions in the 21 paragraph affidavit of Mr. Ofori Ampofo Acquaye filed on February 20, 2019. At paragraph 9 of the affidavit it is deposed that “That in a ruling dated 17th December 2018, this Honourable Court found and declared that the “execution taken was not in accordance with law”. In other words, the execution was unlawfully done. The Court proceeded to set aside the said execution”. It was further deposed that the Court having set aside the execution the trucks and items seized were supposed to be released to the Defendant.


[5] It was further deposed that a copy of the ruling was sent to the Auctioneer with a cover letter of Counsel to one Adjetey of Access Mart to release the trucks and the items upon the payment of the requisite fees but the said individual insisted on having a letter from the Registrar of the Court. Mr. Ampofo Acquaye further deposed that after a long delay a letter from the Registrar of the Court was sent to the Auctioneer. Copies of the letter from Counsel and that from the Registrar of the Court to the Auctioneer were attached as ExhibitsP1” and “P2”.


[6] The Respondent’s representative also deposed that “I am advised and verily believe same to be true that the Plaintiff cannot take advantage of its own illegality to the detriment of the Defendant”. Also, at paragraph 20 of the affidavit in opposition it is also deposed “That the trucks and the items unlawfully seized were not the subject matter of the suit that culminated into the Judgment in Exhibit GNB1”.


[7] According to Alhaji Farouk Seidu the facts are not in dispute but “Counsel for the Applicant is only in Court to ask the Court to bless the Applicant’s illegality”. Counsel relied on the Court of Appeal case of GENERAL DEVELOPMENT CO. LTD v. RAD FOREST PRODUCTS LTD & ORS [1999-2000] 2 GLR 178 to submit that the conditions to be met for an order of preservation are not met by the Applicant in this case. According to Counsel one of the conditions is that the property to be preserved has to be the subject matter of the suit but in this case the properties the Plaintiff wants the Court to preserve are not the subject matter of the suit. Also, Counsel submitted that in this case the suit has ended and so there is nothing to be preserved.


[8] Responding to the Applicant’s argument that the Applicant shall incur extra costs should the properties be returned to the Defendant/Respondent, Counsel submitted that the Applicant by taking the Defendant’s properties wrongfully the Defendant has incurred costs of the wrongful seizure and therefore the Applicant’s argument is without basis. Further, Counsel submitted that the Court should not endorse the wrongful act of the Applicant because in doing so the Court would be in error. Learned Counsel posed the rhetorical question whether the Plaintiff is asking the Court to preserve the properties so that it will then file a fifa to make the seizure legal?


[9] Finally Counsel submitted that incurring cost should not be part of the analysis at all because the issue ought to be whether the Applicant’s failure to return the seized properties after the December 17, 2018 is legal. Counsel therefore prayed the Court to dismiss the application with cost.


[10] In a quick reply Mr. Ofosu- Appiah submitted that it is indeed good law to say that the property to be preserved must be the subject matter of the suit. In this case Counsel submitted that the seized properties are the subject matter of the suit because the alternative relief (d) the Plaintiff sought from the Court and which was granted was “an order for judicial sale of machinery, equipment and plants purchased by Defendant with funds from the facility”. To that extent Counsel submitted that the submission that the seized goods are not the subject matter suit is untenable.


The Court’s Opinion & Analysis:

[11] I wish to start my analysis from the reply submission above and wish to say that contrary to the submission by Counsel that the Court granted the alternative relief, the Court’s statement at the concluding part of the judgment at paragraph 38 was that “The alternative relief “D” is granted should the Plaintiff wish to apply same in lieu of the above reliefs “. To that extent, Counsel’s submission with respect was not factually correct.


[12] With the above out of the way, I hereby deal with the main merits or otherwise of the application. In GENERAL DEVELOPMENT CO. LTD v. RAD FOREST PRODUCTS LTD & ORS SUPRA, the Court of Appeal considered an interim preservation appeal after the Sekondi High Court had made an order preserving certain equipment which became the subject matter of a consolidated suit. Benin JA (as he then was) analysed the old Order 50, Rule 5 of the High Court Rules under LN I40 A, the wording of which is same as Order 25 Rule 2 of C.I. 47 and reiterated the rule which provided that:

“It shall be lawful for the Court or a Judge, upon the application of any party to a cause or matter, and upon such terms as may be just, to make any order for the detention, preservation, or inspection of any property or thing, being the subject of such cause or matter, or as to which any question may arise therein, and for all or any of the purposes aforesaid, to authorise any persons to enter upon or into the land or building in the possession of any party to such cause or matter, and for all or any of the purposes aforesaid to authorise any sample to be taken, or any observation to be made or experiments to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence”.


The Court reasoned that in granting such an application the

(a) “order must be made against the person in possession or custody of the property in dispute. See also WILDER v. WILDER (1912). 56 S.J. 571”.

(b) The property must be the subject-matter of the suit.


[13] In applying the law as provided for under Order 25 Rule 2 which has received judicial blessing of the Court of Appeal and as I understand the instant application, the Plaintiff is asking the Court to preserve properties for which execution was levied few months ago. From the evidence this Court set aside the Entry of Judgment which was a precursor to the said execution. The question is based on this Court’s ruling of December 17, 2018 is the instant application answerable based on the law by the Court?


[14] The law is settled that generally, a judgment or order of a competent Court of jurisdiction is fruitless unless it can be enforced against the person ordered to do or abstain from the act specified in the judgment or order. After a court delivers a judgment or ruling, the successful party is entitled to proceed to enforce or execute the judgment or order, unless the execution of the judgment is stayed by an order of an appropriate court.


[15] Per the rules of Court, the method for enforcing a judgment or ruling is by execution. In order to enforce the judgment, the judgment creditor must first file in the Registry of the Court an entry of judgment and serve same on the judgment debtor. By the rules of procedure there are various modes of enforcement of a court order or judgment. The mode to be used to enforce the judgment depends on the nature of the judgment or order. These include writ of fieri facias, sequestration, possession and delivery and these are generally termed writ of execution. Other modes are garnishee order, charging and stop orders and committal.


[16] From the above analysis it is clear that by the rules of procedure an entry of judgment must first be filed and served on the judgment debtor before execution can take place. I agree with Counsel for the Defendant/Respondent that the Applicant is putting the cart before the horse. As a general rule, where a procedure was laid down by law for which an act, relief or remedy was to be exercised it was that procedure alone which ought to be followed. See HEWARD MILLS v. HEWARD MILLS (1992-93) GLR Pt. 1, p.239 and BOYEFIO v NTHC PROPERTIES (1997-98) 1 GLR 768 SC.


[17] In my respectful opinion, the issue here is not that the entry of judgment has now been filed and served. The properties were attached pursuant to an entry of judgment this Court found to be defective, to that extent granting this application would amount to affirming the very act the Court found to be defective and did set aside. The process of execution of a judgment starts when it is brought to the attention of the Judgment/Debtor by way of filing of Entry of Judgment after which the Judgment/Creditor adopts one of the above execution methods and not otherwise.


[18] Indeed, if the Court were to accept the Plaintiff’s argument, it would open the flood gates and give Judgment Creditors a field day to attach properties of Judgment Debtors even before an entry of judgment is filed and served and then use same to argue that releasing such properties and going back to re-attach would be costly. The rules of Court provide the road map to execution of a judgment of the Courts. This court therefore declines the invitation by the Plaintiff to preserve properties which as it is were seized before the filing and serving of an entry of judgment as an execution process and thereby re-write the rules of Court regarding the preservation of property.


[19] Although the Court has the wide discretionary power to make orders, as a matter of law, the discretion ought to be exercised judiciously and in clear cases and in compliance with the law. In the considered opinion of this court even though the arguments of the Plaintiff/Applicant’s Counsel are very innovative, bold and appear superficially attractive, the legal basis is undermined by the absence of any of the rules of procedure of this Court to back it. There is no legal basis for me to make any such order to preserve properties attached pursuant to a process I set aside as defective and void and not voidable as submitted by Applicant’s Counsel. In our adversarial legal system, if a Plaintiff initiates a suit and obtains a judgment he/she is to follow the law and apply the rules to the later, certainly he/she cannot expect the assistance of Court when the rules are not complied with by invoking Order 1 Rule 2 of C.I. 47 under the guise of doing substantial justice. The Court do justice in accordance with the rules.


[20] Based on all of the above and having carefully considered the application and the arguments of counsel and the evidence as contained in the affidavits for and against the application, I have come to the conclusion that the application ought to be dismissed and it is DISMISSED as unmeritorious. The Registrar is to ensure that the auctioneer releases the properties which were attached based on the writ of fi.fa filed pursuant to the Entry of Judgment this Court set aside on December 17, 2018.



Cases referred to;


2. HEWARD MILLS v. HEWARD MILLS (1992-93) GLR Pt. 1, p.239