ACCRA- A.D 2019

SUIT NO:  AB/18/2012


i. Introduction:

[1] This Court’s judgment of August 18, 2017 is the subject matter of this application. The Defendant/Judgment Debtor/Applicant is first praying the court to set aside the execution of the judgment undertaken by the Plaintiff/Judgement Creditor/Respondent on the grounds that no entry of judgment was served before the Applicant’s properties were attached and also to stay execution of the judgment pending the determination of the appeal against the judgment at the Court of Appeal. The application has been brought on the grounds inter alia that the execution undertaken by the Plaintiff/Respondent was contrary to the Rules of Court and also that the Defendant is dissatisfied with the judgment of this Court and has filed a Notice of Appeal and the appeal raising substantial issues of law with a very bright chance of success.


[2] It recalls that on the 28th October, 2011 the Plaintiff/Respondent (hereafter referred to as the Plaintiff) issued a writ of summons against the Defendant/Applicant, (hereafter referred to as the Defendant) for stated reliefs endorsed on the writ of summons. The Defendant entered appearance and filed a Statement of Defence. This Court after trial, entered judgment in favour of the Plaintiff on August 18, 2017.


ii. The Case of the Parties:

[3] The grounds upon which the instant application is premised are catalogued in the 12 paragraph supporting affidavit sworn on July 11, 2018 by Mr. Ofori Ampofo Acquaye , the Human Resource Manager of the Defendant Company, and a later 10 paragraph supplementary affidavit also sworn on October 17, 2018 by the said Mr Acquaye, to support the application. The thrust of the Defendant’s case is that after the judgment was delivered they filed an appeal at the Court of Appeal but did not file an application for stay of execution because it was waiting on the Plaintiff to serve it with an entry of judgment “for it to appraise itself with the total amount to be settled and to find out whether or not the total judgment debt has been properly and correctly computed”. A copy of the judgment and the Notice of Appeal filed are attached as ExhibitsA” and “B” to the instant application.


[4] According to the Applicant whilst waiting to be served with the Entry of Judgment which never came, the Plaintiff has caused its machinery and heavy duty trucks to be attached and carried away to be auctioned later. According to the Applicant its large parcel of land situate at Bawjiase has also been attached. The Applicant has attached Exhibits “C” and “C1”. The Applicant contends that since it was not served with the Entry of Judgment before the execution was carried out, same was wrong, improper and unlawful. It is also the contention of the Applicant that “the judgment was for the recovery of certain sum of money or in the alternative a judicial sale of machinery, equipment and plants purchased by the Defendant with funds from the facility”. To that extent it is the contention of the Applicant that having attached the trucks and other items purchased with the funds from the facility it is wrong for the Plaintiff to attach its landed property in addition.


[5] The Plaintiff is vehemently opposed to the application. In an affidavit in opposition deposed to by one David Darko it is deposed that the Plaintiff filed an Entry of Judgment on August 31, 2017 and same was duly served on the Applicant. The Plaintiff attached as Exhibit FNSL1” to confirm the service. The Plaintiff has also deposed that by law the Plaintiff can levy execution against movable and immovable properties of the Applicant as a judgment debtor and the only time the Plaintiff cannot do so is “when the Judgment Debtor notifies the Judgment Creditor and establishes that there is sufficient movable properties to satisfy the judgment and costs awarded”.


[6] The Plaintiff through Mr. Darko has also deposed that the Defendant has woefully failed to show/establish that the movable properties are sufficient to satisfy the judgment and costs awarded. To the Plaintiff the instant application is incompetent because it is only seeking to delay the sale of the properties and deny the Plaintiff/Judgment Creditor from enjoying the fruits of its victory.


iii. Rebuttal Affidavits:

[7] Upon the service of the Affidavit in Opposition, Mr. Acquaye filed a Supplementary Affidavit on October 17, 2018 to rebut the depositions of the Plaintiff. He deposed that a search conducted at the registry of this Court indicates that a Notice of Entry of Judgment was filed and served on a certain Offei Awuku at Jei Krodua. He has attached as ExhibitD” a copy of the entry of judgment. According to him whilst he knows the said Offei Awuku as a farm labourer of the Defendant Company the Defendant has no office at Jei Krodua or Kasoa. According to him the Defendant Company’s farm is at Bawjiase but no Court process has been served there. He also deposed that he has been advised by the said Offei Awuku that “he cannot remember being served with any Court process on the farm where he normally works or at Jei Krodua”. The Applicant also contends that even if the said Offei Awuku was served, the said “service cannot pass for proper service since Offei Awuku, a labourer is not a responsible official of the company”.


[8] Taking a page from the book of the Applicant, the Plaintiff has also filed a Supplementary Affidavit of its own. It was filed on October 30, 2018 and same was deposed to by Mr. David Darko. The Plaintiff says the Court bailiff who effected the service says he served Mr. Offei Awuku at the premises of the Defendant’s Company. The Plaintiff attached as Exhibits FNSL2 to 2D” photographs of the said bailiff and a certain man the Plaintiff says is Mr. Offei Awuku to support the service of the Entry of Judgment at Jei Krodua.


iv. Counsel’s Submission:

[9] Further to the direction of the Court Counsel for the parities have filed their legal submissions for the Court’s consideration. Alhaji Farouk Seidu has submitted that the Plaintiff’s execution step was “unlawful action” because execution of a judgment cannot proceed unless the Notice of Entry of Judgment is filed and served on the judgment debtor. Counsel cited and relied on Order 43 Rule 11 of the High Court Civil Procedure Rules, 2004 C.I. 47.


[10] Counsel has argued most profoundly that the critical question is whether based on the facts and the affidavit evidence the service of the Entry of Judgment can be said to be in accordance with law. According to Alhaji Farouk Seidu the bailiff who effected the service, a certain Seth Nubour from the facts set off to effect the process personally on the said Offei Awuku at Jei Krodua even though the process was meant for the Applicant Company which has no office at Jei Krodua but rather at Bawjiase. According to Learned Counsel the process was not meant for the said Offei Awuku but “Prudent Export and Import Limited”. To that extent, it is the submission of Counsel that the process should have been served on the Applicant Company through proper officers allowed by law.


[11] Learned Counsel referred to Order 7 Rule 5(1) of the C.I. 47 and the case of GHANA COMMERCIAL BANK v. TABURY (1997) 1 GLR 329 to submit that since the Defendant is a Limited Liability Company the Entry of Judgment filed should have been served in strict compliance with Section 263 of the Companies Act 1963, Act 179. Not having done so, learned Counsel submitted that the Entry of Judgment was not served since the process was not brought to the attention of the Company. Learned Counsel also referred to the Supreme Court case of BARCLAYS BANK OF GHANA LIMITED v. GHANA CABLE CO, LTD AND OTHERS (1998/99) SCGLR 1.


[12] Assailing the correctness of the Applicant’s position in this matter in regards to the service of the Notice of Entry of Judgment, learned Counsel referred to all of the above provisions of the Rules of Procedure, the judicial decisions and the affidavit evidence to submit that “the service of the Notice of Entry of Judgment was not done in accordance with law and therefore any action taken based on the said service including the seizure of the Applicant’s trucks is also equally unlawful and therefore be set aside”.


[13] The Plaintiff/Respondent on the other hand has submitted that the proof of service attached as exhibit by the Applicant itself has undermined the assertion of the Applicant that it was not served with the Entry of Judgment. Counsel also referred to Order 7 Rule 5 of C.I. 47 and Section 263(1) of Act 179 and such cases as BARCLAYS BANK OF GHANA LIMITED v. GHANA CABLE CO, LTD SUPRA and ZOOMLION GHANA LIMITED (NO.1) v. MERKWORLD CO. LTD (NO.1) [2013-2014] to submit that the mode of service adopted by the Plaintiff was proper.


[14] It is the case of the Plaintiff that the Applicant has admitted that the service was effected on Offei Awuku, whom the Applicant says is a labourer and the service was at Jei Krodua. Learned Counsel referred to Section 37 of the Evidence Act, 1975 (NRCD 323) to say that though there is the presumption that an official duty performed has been regularly performed, in this case according to Counsel the Applicant’s lamentation is of no moment because Exhibits FNSL1 and FNSL 2 – 2D confirm the service on Offei Awuku who is a worker of the Applicant and therefore it is the case of the Plaintiff that “the Respondent satisfied the mode of service under section 263 (1) of Act 179”.


[15] The Plaintiff’s Counsel further submitted that the Applicant failed to rebut the presumption of the service with any cogent evidence. Counsel says the Applicant for instance “failed to provide any such cogent evidence to the contrary. It has failed to provide any official document showing it registered place of business and its claim that Offei Awuku is not a proper person to be served is misplaced since Applicant admits he is its worker”.


[16] Counsel has also submitted that the Applicant’s contention that the Plaintiff cannot attach both its movable and landed property is without basis because according Counsel by Order 44 Rule 2(3) it is the Applicant which has to show that as a judgment debtor it has sufficient movable property within the jurisdiction to satisfy the judgment and not the other way round. Learned Counsel relied on the Supreme Court case of ACKAH v. GHANA COMMERCIAL BANK [2013-2014] 2 SCGLR 1157 to submit that by Order 44 Rules 3 and 4, it is the judgment/execution debtor must demonstrate that he has sufficient movables which ought to be attached first before resort to immovable properties. Based on the above submissions and other arguments advanced learned Counsel submitted that the Applicant has not demonstrated any special circumstances to warrant the grant of the application. To learned Counsel the present application is incompetent because it is a “ruse seeking to delay the sale of the properties and deny the Respondent from enjoying the fruit of the sound judgment given by this Honourable Court”.


v. Analysis & Opinion of the court:

[17] The venerable Taylor JSC in REPUBLIC v COURT OF APPEAL, EX PARTE SIDI (1987-88) 2 GLR 170 at 176 opined that stay of execution. “simply means the suspension of any process or procedure that would post date the judgment. If an applicant asks for such stay pending the hearing and determination of his appeal, then what he is in effect asking is that all processes that can be taken after judgment for the purpose, no doubt of satisfying the judgment should be stayed until the appeal is finally heard and a decision on it given.”


[18] I approach the problem in this instant application by posing a single fundamental question, namely:

a)  Has the Applicant herein a demonstrable and exceptional circumstances to warrant a grant of what it seeks -


[19] The overarching rule is that a victorious party in any civil suit has the right to enforce the judgment of the Court of law in his/her favour unless the adversary succeeds subsequently in asking the Court to stay the execution of the judgment pending the result of an appeal if the orders are executable. In other words, an application for stay of execution is an exception to the rule if granted by the court and it ought to be made in respect of an executable judgment of a court.


[20] It bears emphasizing that in all cases, the decision to grant or refuse an application for stay of execution involves the exercise of judicial discretion, which is exercised by balancing the competing legal rights of the parties in the application. It is trite that discretion ought to be exercised judiciously and therefore the exercise of discretion is fettered if the decision maker’s decision is perverse or unreasonable on the face of the evidence. This is because it should not be assumed that a grant of discretion is an invitation to exercise personal prejudice, as it is well established in our jurisprudence that discretion in every instance must be exercised judicially and in conformity with the objectives and standards of the law.


[21] I also hold the view that in matters where the Court is exercising discretion there is no binding precedent. The Court looks at the peculiar circumstances of each case and determines the appropriate order. This is because each case has to be determined on its own merits although it is equally true to say that the court may take into account general established legal reasons or principles as stated above. Hence while the court is responsive to the exigencies of each case, the court’s approach is not arbitrary but rather, structured by law.


[22] The authorities agree that an Applicant for stay of execution ought to demonstrate that there are exceptional circumstances for same to be granted. See NANA KWASI AGYEMAN VII AND OTHERS v. NANA HIMA DEKYI XIII AND OTHERS [1982-83] GLR 453-463. Other factors outlined in such cases as NDK FINANCIAL SERVICES LTD. v YIADOM CONSTRUCTION AND ELECTRICAL WORKS LTD (2007-2008) SCGLR 39 and DJOKOTO & AMISSAH v. BBC INDUSTRIAL CO (GHANA) LTD. & CITY EXPRESS BUS SERVICES LTD [2011] 2 SCGLR 825 are usually considered by the Court.


[23] In my opinion, the Court in assessing the exceptional circumstances ought to look at the affidavit evidence, and the ground of appeal filed vis–à–vis the judgment/ruling intended to be stayed.


[24] The facts as presented in the application to my mind speaks more to the circumstances leading to the attachment of the Applicant’s properties than an application for stay of execution in the strict sense of it. It is also clear that apart from a single deposition in regards to the attachment of the immovable property the Applicant did not advance any argument in regards to the grant of the stay of execution. I shall therefore focus on whether or not the Plaintiff served the Entry of Judgment filed on August 31, 2017.


[25] In my respectful opinion both Counsel referred to the relevant provisions of the law. It is the application of same to the facts that they seem to have taken different paths. And so who is right?


[26] To plumb the full depths of the law and leave no one in doubt, I hereby produce in extenso Order 7 Rule 5 (1) of C.I. 47 and Section 263 of the Companies Act, Act 179.

Service on particular persons

5. (1) Service of a document on a body corporate may, in cases for which provision is not otherwise made by any enactment, be effected by serving it on the chairman, president, or other head of the body, or on the managing director, secretary, treasurer or other similar officer of it.


[27] Section 263—Service of Documents on Company.

(1) A document may be served on a company by leaving it at, or sending it by post to, the registered office of the company or the latest office registered by the Registrar as the registered address of the company.

(2) Any document to be served by post on a company shall be posted in such time as to admit of its being delivered in due course of delivery within the time, if any, prescribed for the service thereof; and in proving service it shall be sufficient to prove that a letter containing such document was properly addressed prepaid and posted, whether or not by registered post.

(3) If a company has no registered office, service upon any director of the company or, if the company has no director or if no director can be traced in Ghana, upon any member of the company, shall be deemed good and effectual service upon such company.

(4) If it shall be proved that any document was in fact received by the board of directors, managing director or secretary of a company such document shall be deemed to have been served on the company notwithstanding that service may not have been effected in accordance with the foregoing subsections of this section.

(5) Nothing in this section shall derogate from any provision in this Code relating to the service of any document, or from the power of any court to direct how service shall be effected of any document relating to legal proceedings before that court.


[28] It bears emphasizing that the parties are in agreement as to who was served with the entry of judgment filed on August 31, 2017. From the facts the service was effected on one Offei Awuku, a person the Defendant Company says is a labourer at its Bawjiase site. The Defendant contends that the service was not proper because it was not in accordance with the law. The Plaintiff disagrees on the grounds that the Defendant concedes that the said Offei Awuku is its worker.


[29] By Order 7 Rule 5 a document on a body corporate should be effected by serving it on the chairman, president, or other head of the body, or on the managing director, secretary, treasurer or other similar officer. Section 263 of the Companies Act, Act 179 uses similar language as subsection 4 provides that a document to be served on a Company shall be deemed proper service in fact if received “by the board of directors, managing director or secretary of a company” even if the service had not been effected in accordance with the other modes as stipulated under Section 263 of Act 179.


[30] In BARCLAYS BANK OF GHANA LIMITED v. GHANA CABLE CO, LTD SUPRA the Supreme Court confirm the statutory rule and also gave the policy rationale which underpins the rule when it held at Holding one per Acquah JSC that:

“Thus although Section 263 (1) of Act 179 talks of “leaving it at” the registered office or address of the Company, the bailiff must obviously leave it with someone who is in a position to bring the document to the attention of the Company…In Ghana, one can take a cue from Sections 263(3) and (4) of Act 179 and comfortably hold that a document left with a director or the managing director, or the secretary or a member of the company at the registered office or address, should be sufficient service on the company within the expression “leaving it at” in section 263 (1) of Act 179”.


iv. Conclusion & Disposition:

[31] Applying myself to the law in regards to service enunciated supra to the facts of the case I hold the respectful view that the service of the Entry of Judgment filed on August 31, 2017 was not in accordance with the law. A look at the string of officers who should be served with a Company’s document are clearly set out unambiguously to my mind. They include “Chairman, President, Head of the Body, Managing Director, Secretary, Treasurer or other similar Officer’. Including a labourer, notwithstanding the importance of his/her work to the operations of the organisation, under the guise that he is a worker of the Company clearly will do violence to the language of the Rule of Procedure and/or the Statute, in this case Act 179.


[32] My position above is fortified when one looks at the canon of interpretation known as Ejusdem Generis rule. His Lordship Dennis Dominic Adjei JA posits that rule simply means in construing statute and documents, the Courts should have regard to the general words used as well as the words of the same class preceding it and the meaning of the preceding words should be limited by the general words used[1]. Justice Adjei further quoted the distinguished legal scholar Aharon Barak, the author of the book ‘Purposive Interpretation in Law’ to the effect that “Similarly, if a legal text contains a string of details followed by a general phrase – like a statute about “trucks, buses, private cars, or other vehicles” – one can assume that the general phrase, “other vehicles”, includes additional items of the same type (vehicles that move on land, not ships and airplanes); ejusdem generis” See also the case of ASARE v ATTORNEY-GENERL [2003-2004] 2SCGLR 823 and the opinion of Prof Kludze JSC in construing Article 60 (8) of the 1992 Republican Constitution.


[33] To my mind it is disingenuous for the Plaintiff to take the position that the service on any worker of the Defendant constitutes proper service based on the law. 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. The error committed is grave in my view and therefore this Court cannot cure same by exercising its inherent jurisdiction under the guise of doing substantial justice. Courts only enjoy relative autonomy in doing justice in accordance with the law and within the appropriate rules.


[34] I think this is a proper case to re-echo the wise words of Her Ladyship, Vida Akoto Bamfo JSC, in her introduction to the decision in the case of KLAH v. PHOENIX INSURANCE CO. LTD. [2012] 2SCGLR 1139 @ 1144. Her Ladyship stated:

“It is important to stress that the efficient conduct of a case includes the drafting of proper pleadings, the marshaling and adducing of the relevant evidence during the trial and the invocation of the correct principles of law. These are well-known basics. If counsel falls short in any of these areas, it may lead to failure of the action he or she has initiated; or, correspondingly, success of an action he or she is defending. In such a situation, it is no use for counsel to turn around and blame the court for allowing technicalities to frustrate its primary function of doing justice. Courts do justice according to law”.


[35] Even though this is a post-judgment step taken by the Plaintiff/Judgment Creditor, in my view the above words are still applicable because clearly this application is being granted at this stage on the sole ground that the execution taken was not in accordance with law. Based on all of the above and having exercised the inherent power to scrutinize all the processes filed and guided by the law as stated above I grant the application by setting aside the execution of the judgment of this Court undertaken by the Plaintiff/Judgment Creditor on the grounds that the Entry of Judgment filed on August 31, 2017 was not served on the Defendant Company before the Movable and Immovable Properties of the Defendant Company were attached. The attachment was therefore illegal and I shall refuse to grant the imprimatur of this Court to same. No order as to Cost