The Plaintiff’s case in the instant suit was that sometime in 2003 it was a party to Suit No. Misc.864/2003 entituled Abraham Yeboah & Others v. Karl Wutric (Administrator in Bankruptcy of SWISSAIR) and Swiss International Airlines. As 2^nd Defendant in that suit, it had entered appearance and filed a defence. The 1^st Defendant on the other hand did not enter appearance or cause a defence to be filed on its behalf resulting in the Plaintiff therein taking judgment against 1^st Defendant in default of appearance.

The Plaintiff averred that notwithstanding the fact that judgment had not been taken against it, a garnishee order was drawn up by the Registrar of the Court, i.e. 1^st Defendant in this case, causing its account with 2^nd Defendant to be debited with the amounts of GH¢301,664.06 and US$88,990.44. In view of this, the Plaintiff claimed against the 1^st Defendant as Registrar of the Court, the 2^nd Defendant, its bankers and the 3^rd Defendant as the Government’s Principal Legal Advisor, the sums of GH¢301,664.06 and US$88,990.44 together with interest from 18^th April 2005 at the prevailing commercial bank interest rate. The Plaintiff accused the 1^st Defendant of fraud and the 2^nd Defendant of negligence and breach of duty. The 1^st and 3^rd Defendants in their defence averred that the Plaintiff had no cause of action against them as the 1^st Defendant only drew up the court orders as stated by the presiding judge for service on the 2^nd Defendant. The 2^nd Defendant contended that it acted in obedience to the court’s order for attachment of debts and summons to garnishee issued from the High Court, Accra on 15^th April 2005 and attended court to disclose funds it held to the credit of the Plaintiff.

Afterwards, it was served with an order of garnishee absolute in which it was ordered to pay out to the Plaintiff in the Garnishee summons the sums of GH¢301,664.06 and $88,990.44. The parties were unable to settle their differences at the pretrial settlement conference.

Consequently, 21 issues were settled for trial and were as follows:

1. Whether or not the Plaintiff is a private limited company engaged in the airline industry which was sued in the High Court, Accra as the 2^nd Defendant in the Suit No. Misc. 864/2003 entitled Abraham Yeboah & Ors vs. Karl Wutrick (Administrator in Bankruptcy of Swissair) as the 1^st Defendant and Swiss International Airlines as the 2^nd Defendant?

2. Whether or not the Plaintiff maintained a presence in Ghana with the address which they were served with processes in Suit No. Misc. 864/2003 being Millennium Heights Buildings, Aviation Link, Accra?

3. Whether or not the Plaintiff duly entered appearance and filed a Statement of Defence on the 24^th October as the 2^nd Defendant in the Suit No. Misc. 864/2003?

4. Whether or not judgment was entered in default of appearance against the 1^st Defendant in the Suit No. Misc. 864/2003 when they failed to enter appearance and to file a statement of defence?

5. Whether or not the Court notes in Suit No. Misc. 864/2003 on the 26^th January 2004 specifically states that there is no other judgment entered in the said suit besides the default judgment entered against the 1^st Defendant?

6. Whether or not an amount of GH¢301,664.06 and $88,990.44 were wrongfully withdrawn from the Plaintiff’s account with the 2^nd Defendant?

7. Whether or not subsequent to the said judgment in default being entered against the 1^st Defendant in Suit No. Misc. 864/2003, the Registrar as 1^st Defendant drew up and issued an order of attachment and garnishee summons which was served on the 2^nd Defendant and was heard on the 15^th day of April 2005?

8. Whether or not the Garnishee Order Nisi was made absolute by the High Court, Accra on the 15^th day of April 2005?

9. Whether or not the 1^st Defendant perpetrated acts of fraud on the Plaintiff?

10. Whether or not the 2^nd Defendant gave vague, inaccurate and false evidence to the Court regarding the ownership of the Plaintiff’s Cedi and Dollar accounts?

11. Whether or not the 2^nd Defendants acted negligently and in breach of its duty as Bankers to the Plaintiff to notify the Plaintiff of the service on it of a garnishee order.

12. Whether or not on the admitted facts of the case, there is sufficient nexus between the wrongs allegedly perpetrated by the 1^st, 2^nd and 3^rd Defendants to warrant the claim of joint liability against them?

13. Whether or not the 2^nd Defendant was under any legal duty to inform the Plaintiff of the service on it of Order of Garnishee Nisi to disclose funds they hold to the credit of the Plaintiff?

14. Whether or not at the time of the service of the Order of Garnishee Nisi on the 2^nd Defendant, the Plaintiff had not relocated outside Ghana?

15. Whether or not the Plaintiff notified 2^nd Defendant that it was relocating outside Ghana before it relocated outside Ghana?

16. Whether or not the Plaintiff gave the 2^nd Defendant an address at which it could be contacted on issues affecting its bank accounts when it relocated outside of Ghana?

17. Whether or not on being served with the Garnishee Order Nisi, the 2^nd Defendant could have refused to pay the sum ordered to be paid in the Order?

18. Whether or not the sum paid out by the 2^nd Defendant upon the Garnishee Order Absolute is GH¢301,664.06 and US$88,990.44 as claimed by the Plaintiff?

19. Whether or not the 1^st Defendant was liable for the attachment and garnishee of the account of the Plaintiff?

20. Whether or not the Plaintiff is entitled to its reliefs it is claiming against the Defendants jointly and severally?

21. Any other issues raised by the pleadings

From the amended processes filed before this court on 19^th April 2018, the 2^nd Defendant raised the issue of limitation in its paragraph 14 when it stated as follows:

14. 2^nd Defendant will say, without prejudice to the foregoing that the Plaintiff’s action is statute barred and offends the Limitations Act of 1972 for tortious actions in negligence.

This would lead to the issue of whether or not the instant action is statute barred?

In paragraph 12 of its Witness Statement, the 2^nd Defendant stated:

Plaintiffs have known about the payment of funds under the Garnishee Order since 18^th April, 2005 and have had their claims for the refund of the monies rejected by the bank as far back as November 2005 and yet only commenced the instant action on the 20^th of April 2011 well outside of the limitation period of three years for the nature of the action brought against the 2^nd Defendant.

Section 3 of the Limitations Act, 1972 (NRCD 54) states:

A person shall not bring an action claiming damages for negligence, nuisance or breach of duty irrespective of how the duty exists, where the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries to a person, after the expiration of three years from the date on which the cause of action accrued.

Since the current action is not in respect of personal injuries to a person, Section 3 would not apply to this case. The relevant section would be Section 6 (1) which states:

A person shall not bring an action after the expiration of six years from the date on which the cause of action accrued, in the case of

(a) An action founded on tort other than an action to which sections 2 and 3 apply

When did the cause of action in this matter accrue? At paragraph 9 of the Plaintiff’s Statement of Claim it is stated:

The Plaintiff discovered in May, 2005 that by a series of ex parte applications of which it had no notice, amounts of GH¢301,664.06 and US$88,990.44 were wrongfully withdrawn from its accounts with the 2^nd Defendants.

The Plaintiff only became aware that its bank account had been debited in May 2005. Time would begin to run from that date. The writ was issued on 14^th April 2011. A period of 6 years from May 2005 would elapse at the end of April 2011. Therefore the writ was within time and not caught by the period of limitation.

The facts of this suit which can be gleaned from the record before this court are that the Plaintiff herein was the 2^nd Defendant in the Suit No. Misc.864/2003 entitled Abraham Yeboah & Others v. Karl Wutrick (Administrator in Bankruptcy of Swissair) and Swiss International Airlines. (See Exhibit B). The 2^nd Defendant filed a Defence to the action on 24^th October 2003. (See Exhibit C). The 1^st Defendant failed to enter appearance and to file a defence. This resulted in the Plaintiffs applying for Judgment in Default of Appearance in accordance with Order 13 r. 2 of CI 47 (See Exhibit E). In paragraphs 9 and 10 of their affidavit in support of the application the Plaintiffs in Suit No. MISC. 864/2003 deposed as follows:

9. That a search conducted by the Plaintiff/Applicants in the Registry of the High Court on the 30^th of June 2004 revealed that to date 2 months after said service, the 1^st Defendant has neglected, failed and/or refused to enter an appearance to this action.

10. That I am advised and verily believe same to be true that in the circumstances the Plaintiff/Applicants can through their Counsel apply to this Honourable Court to enter judgment against the 1^st Defendant in default of appearance.

This application for judgment in default of appearance was to be moved on 13^th July 2004. There are no court notes attached to the witness statement to show if indeed the court was moved as stated on the motion paper. The search report for Suit No. 864/2003 attached to the Plaintiff’s witness statement (Exhibit G1) however has answered the questions posed in the following manner:

Whether or not Judgment in default has been entered against the 1^st Defendant? If so when? The answers to these questions are Yes and 13^th July 2004 respectively. It is inferred that the Plaintiff therein did move its application in default of appearance accordingly on 13^th July 2004. Exhibit F shows that the Court on 14^th March 2005 made an assessment of damages in against the 1^st Defendant in the following words:

Upon this matter coming before me for the assessment of damages payable to the Plaintiffs who recovered judgment against the 1^st Defendant in default of appearance and defence after having been served with substituted service brought the appropriate diplomatic channels and upon having heard the evidence of Miss Abui Kwawukume in proof of the damages, suffered by the plaintiffs in addition to their liquidation claims endorsed on their amended writ of summons filed on the 11^th March 2003, on claims No. 5 entitled to 5 months salary for each year of service rendered to 1^st defendants/respondents. In view of the fact that the 1^st to 20^th Plaintiffs have already received one month’s salary for the said 5 month’s salary for each year service should be reduced by the said one month’s salary to make it 4 months for each year served… (See Exhibit F).

The court finds from the foregoing facts that the Plaintiff, a private limited company was sued in the High Court, Accra as the 2^nd Defendant in the Suit No. Misc. 864/2003 entitled Abraham Yeboah & Ors vs. Karl Wutrick (Administrator in Bankruptcy of Swissair) as the 1^st Defendant and Swiss International Airlines as the 2^nd Defendant. The court finds further that the Plaintiff as 2^nd Defendant in the said suit duly entered appearance and filed its Statement of Defence. The evidence further shows that judgment was entered in default of appearance against the 1^st Defendant in the Suit No. Misc. 864/2003 i.e. Karl Wutrick Esq. (Administrator in Bankruptcy Swissair) when they failed to enter appearance and to file a statement of defence. Issues, 1, 3 and 5 and 6 are therefore answered in the affirmative.

The 2nd issue set down for trial was whether or not the Plaintiff maintained a presence in Ghana with the address which they were served with processes in Suit No. Misc. 864/2003 being Millennium Heights Buildings, Aviation Link, Accra?

No evidence was led in respect of this matter. The court has no way of making any findings with respect to this issue.

The next issue to be discussed is:

Whether or not subsequent to the said judgment in default being entered against the 1^st Defendant in Suit No. Misc. 864/2003, the Registrar as 1^st Defendant drew up and issued an order of attachment and garnishee summons which was served on the 2^nd Defendant and was heard on the 15^th day of April 2005?

The Registrar did draw up and issue an order for attachment of debts and summons to garnishee on 6^th April 2005. This process was issued against the 2^nd Defendant for judgment said to have been obtained against it on 13th July 2004. The records however show that judgment was never entered against 2^nd Defendant on 13^th July 2004. There is no evidence on record that this process was served on the 2^nd Defendant. Furthermore, Exhibit G indicates  that  the  Plaintiffs  in  Suit  No.  Misc.864/03 had discontinued their suit against the 2^nd Defendants. Although it is not clear from the evidence at this court’s disposal whether or not the court had struck out the suit against the 2^nd Defendant, the search report indicated that the Plaintiff had discontinued its suit against the 2^nd Defendant on 8^th March 2005. If that was indeed the position, how come the 2^nd Defendant’s account was the subject matter of garnishee proceedings on 15^th April 2005?

Whether or not the Garnishee Order Nisi was made absolute by the High Court, Accra on the 15^th day of April 2005?

Exhibit H shows that there was a Motion Ex Parte for Garnishee Nisi before the court on 6^th April 2005. The application which triggered the garnishee proceedings and upon which the court made its ruling was never tendered in evidence. Who was the order nisi made against? The court granted the motion ex parte for garnishee nisi as prayed. What were the contents of this motion?  Was the garnishee order applied for against 1^st or 2^nd

Defendant?  It was not produced in court.  It is only stated on the Exhibit H as follows:

This is a motion Ex parte for Garnishee Nisi. Counsel moves in its terms. The ruling of the court was this:

Motion granted as prayed. Garnishee order to be forthwith served on the Barclays Bank Ghana Ltd, High Street Branch, Accra to show cause why an order absolute shall not forthwith issue.

Whoever the application was made against is not known for certain as the application is not before the court. It can however be inferred that it was made against the 2^nd Defendant (now Plaintiff) since the entire garnishee proceedings were in respect of 2^nd Defendant’s (now Plaintiff’s) accounts with the current 2^nd Defendant Bank. The 1^st Defendant in his witness statement stated at paragraphs 10, 11 and 12 thus:

10. That at the time the garnishee summons was endorsed and the subsequent drawing of the Garnishee order absolute, the then Chief Registrar, S. B. Issaka erred by the endorsement in stating the “Defendants” and not “1^st Defendant” specifically therein as the party whose accounts was to be attached.

11. That the Garnishee Order Absolute had inconsistencies. The first paragraph of the order had as stated “Defendant/Judgment/Debtor” while the third paragraph had as stated “Defendants” whose accounts were to be attached.

12. That any error occasioned was due to the error of the Court.

An examination of Exhibit F shows that the judgment was against 1^st Defendant. Therefore the Garnishee Summons should have been in respect of the 1^st Defendant only and not the 2^nd Defendant and certainly not the Defendants in Suit No. Misc.864/03. The amounts released by the court by the order absolute were ¢3,016,640,643.73 (GH¢301,664.06) and $85,990.44 (See Exhibit L). The 1^st Defendant however drew up the order absolute in the sums of ¢3,016,640,643.73 (GH¢301,664.06) and $88,990.44 instead of $85,990.44. The order nisi was indeed made absolute. But has the Plaintiff been able to prove fraud on the 1^st Defendant’s part? Was the 1^st Defendant’s conduct in drawing up the order of attachment and summons to garnishee fraudulent? These would be considered under the issue of:

Whether or not the 1^st Defendant perpetrated acts of fraud on the Plaintiff?

The Plaintiff in addition to pleading fraud, gave the particulars of fraud as:

i. Wrongfully mis-stating on the face of the order of Attachment and Summons to Garnishee that judgment had been entered against the Plaintiff herein on the 13^th day of July, 2004 when no such judgment had ever been entered.

ii. Wrongfully mis-stating on the face of the order of Garnishee Absolute that an order of Garnishee absolute was made on 15^th day of April, 2004 for an amount of (GH¢301,664.06) and $88,990.44 to be paid out of the account of the Plaintiff herein when the court notes for the 15^th of April 2004 states that an amount of (GH¢301,664.06) and $85,990.44 standing in the dollar and cedi account with 2^nd Defendant herein was to be paid out of the Plaintiff’s herein’s account.

iii. Wrongfully omitting to serve the Plaintiff herein as required by the Rules with the order of attachment and Garnishee Summons.

In cross-examination of the Plaintiff’s Attorney by Counsel for 1^st and 3^rd Defendants on 6^th December 2016, the following was elicited:

Q: What constitutes fraud?

A: The Registrar knows from the docket that the judgment is against the 1^st Defendant and proceeds to draw up the order naming the 2^nd Defendant as the judgment debtor constitutes an act of negligence or fraud.

Q: Is that your understanding of what constitutes fraud?

A. It is an example of conduct that constitutes fraud or conduct that constitutes negligence in the context of this particular case.

The Plaintiff pleaded in paragraph 12 of its Amended Statement of Claim filed on 1^st November 2017 thus:

12. The Plaintiff says that in drawing up the orders of Garnishee Nisi and Garnishee Absolute, the 1^st Defendant perpetrated acts of fraudulent misrepresentation of the facts as they existed as a result of which the sums of GH¢301,664.06 and US$88,990.44 were wrongfully withdrawn from the accounts of the Plaintiff.

The Plaintiff gave the particulars of fraud as:

i. Wrongfully misstating on the face of the order of attachment and summons to garnishee that judgment had been entered against the Plaintiff herein on the 13^th day of July, 2004 when no such judgment had ever been entered.

ii. Wrongfully misstating on the face of the order of Garnishee absolute that an order of Garnishee Absolute was made on the 15^th day of April, 2004 for an amount of GH¢301,664.06 and US$88,990.44 to be paid out of the account of the Plaintiff herein when the Court Notes for the 15^th of April 2004 states that an amount of GH¢301,664.06 and US$85,990.44 standing in the dollar and cedi account with 2^nd Defendant herein was to be paid out of the Plaintiff herein’s account.

iii. Wrongfully omitting to serve the Plaintiff herein, as required by the Rules with the order of attachment and Garnishee Summons

In Derry v. Peek (1889) 14 AC 337 the court held that fraud is proven when it is shown that a false representation has been made (1) knowingly or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false. The court held further that if fraud be proved, the motive of the person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made. When an issue of fraud was raised in Brown v. Quarshigah (2003/2004) SCGLR 930, the court per Twum JSC @p. 946 quoting from Lord Esher in Le Lievre v. Gould (1893) 1 QB 491 @ 498 stated:

“At common law a charge of fraud is such a terrible thing to bring against a man that it cannot be maintained in any court unless it is shown that he had a wicked mind. In Derry v. Peek (1889) 14 App Cas 337, the House of Lords held that an absence of honest belief is essential to constitute fraud. In short, fraud is dishonesty.

Has the Plaintiff been able to establish that in drawing up the Garnishee Order Nisi, the 1^st

Defendant did so with a wicked mind? Did the 1^st Defendant act dishonestly? In the case of Ababio v. Akwasi IV (1994/95) GBR 774 the court said:

The general principle of law is that it is the duty of a Plaintiff to prove his case as he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the Plaintiff led some evidence to prove his claim.

See also Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 where the court held:

It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.

The onus rested on the Plaintiff to prove the allegation of fraud.

In cross-examination of the Plaintiff’s Attorney by 1^st and 3^rd Defendants on 6^th December 2016, the following evidence was elicited:

Q: Do you have any idea about the responsibilities of a Court Registrar?

A. Yes. A Court Registrar has custody of the dockets and a responsibility to ensure in this particular instance that garnishee orders are drawn up properly and where there are two Defendants, to specify which of the defendants is the judgment debtor and in this instance, it appears that at the time the garnishee application was filed, the Plaintiff’s Solicitor had discontinued the action against us, the 2^nd Defendant and this is shown by an exhibit to my witness statement.

Q: Do you know what goes into the drawing up of a Garnishee Order?

A. Yes. My Lord. Accurate facts based on a court’s docket and in the instant case even if Mr. Logan had put 2^nd Defendant’s account, the Registrar should have refrained from proceeding to draw up the order as if the 2^nd Defendant was the judgment debtor.

Q. Per paragraph 12 of your amended statement of claim, you stated that the Defendant in drawing up the garnishee order perpetrated an act of fraud; is that correct?

A: Yes, My Lord.

Q: What constitutes fraud?

A: The Registrar knows from the docket that the judgment is against the 1^st Defendant and proceeds to draw up the order naming the 2^nd Defendant as the Judgment Debtor constitutes an act of negligence or fraud.

Q: Is this your understanding of what constitutes fraud?

A. It is an example of conduct that constitutes fraud or conduct that constitutes negligence in the context of this particular case. ….

Q. … please take a look at Exhibit H1 of your witness statement. Can you please read the last paragraph?

A: Witness reads same in open court.

Q. … I am putting it to you that it was the Judge’s order that led to the drawing up of this garnishee order against the Defendants.

A. … first of all there was only one Defendant who was the judgment debtor and we were not the Judgment-Debtors and the Registrar as custodian of the dockets knew or should have known. So he has a responsibility in respect of this exhibit H1.

Q: … you will agree with me that per Exhibit H1, the order was against the Defendants.

A. That is the wording in Exhibit H1 but it was served on the bank as a follow up of the garnishee order nisi Exhibit H which referred to us as the Judgment debtor wrongly.

Q. I am putting it to you that by the reading of Exhibit H1 and L, the Registrar just reproduced the order the judge had made.

A. My Lord, if he did, he abdicated his responsibility of checking the docket and drawing the judge’s attention to the gross error of describing our accounts as the accounts of the Judgment-Debtor.

Q:… I am putting it to you that the Registrar did not make any misstatement. He only followed the orders of the court.

A. … I disagree with the suggestion. The Registrar had the responsibility to draw the Judge’s attention to the fact that the Judgment was against the 1^st Defendant and not the 2^nd Defendant.

Exhibit H1 is the Garnishee Order Absolute in which the Court after hearing the representative of the 2^nd Defendant issued. The order was to the effect that the amounts of ¢3,016,640,643.73 (GH¢301,664.06) and US$88,990.44 were to be paid over to the Applicant/Judgment-Creditor in part satisfaction of the Judgment Debt.

The court notes for the day were tendered in evidence as Exhibit L. It stated as follows:

By Court: Upon hearing Godfried Balamey representing Barclays Bank Gh. Ltd and upon hearing Counsel for the Plaintiff/creditor/applicants it is hereby ordered that an Order Absolute be forthwith made for the accounts variously standing to the credit of the defendant/judgment/debtor both cedis and dollar account amounting to¢3,016,640,643.73 (GH¢301,664.06) and US$85,990.44 be part satisfaction of the judgment debt recovered against the defendants herein. Ordered accordingly.

It could be inferred from the evidence that the Registrar drew up the order from the court notes at his disposal. In the case of Nyame v. Tarzan Transport (1973) 1 GLR 8 CA, the court held:

“There is a distinction between pure conjecture and reasonable inference. A conjecture may be plausible but it is of no legal value for its essence is that it is a mere guess. An inference in the legal sense on the other hand, is a deduction from the evidence and if it is a reasonable deduction, it may have the validity of legal proof. The attribution is always a matter of inference.”

See also Section 18(2) of the Evidence Act, 1975 NRCD 323 which states:

“An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action.”

The 1^st Defendant has also prayed in aid section 3 of the Judicial Service Regulations, 1963

LI 319 which states:

A Registrar or an officer or a person authorized in that behalf by the Registrar shall not be liable to be sued for any bona fide act or omission in the execution of any process.

So could 1^st Defendant be accused of fraud when he had merely drawn up the order given by a court of competent jurisdiction? In the case of Osei-Ansong & Passion International School v. Ghana Airports Company Ltd (2013/2014) SCGLR 25 @ 35, the Court referred to Kerr on Frauds and Mistakes (7^th edition) stating that fraud in all cases implies a willful act on the part of anyone, whereby another is sought to be deprived of what he was entitled to. The Plaintiff herein has not shown that the 1^st Defendant had deliberately set out to garnishee the Plaintiff’s account. The 1^st Defendant only reproduced the court’s order detailing that the order absolute had been issued.   The question that remains outstanding is how did the 2^nd Defendant’s account come to be garnisheed if no judgment had been taken against it? How come the court proceeded against its account?

As stated earlier, the application made to the court for an order nisi was not tendered in evidence. It however seems that the said application was made in respect of the then 2^nd Defendant’s account rather than the 1^st Defendant’s account. The court had been misled by an application made to it in respect of the 2^nd Defendant’s (now Plaintiff’s) account. Consequently it was misled in making the order against the then 2^nd Defendant (now Plaintiff). In Okudzeto Ablakwa (No. 2) v. Attorney General & Another (2012) 2 SCGLR 845, the Court held at p. 867:

if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17(b) which emphasizes on the party on whom lies the duty to start leading evidence.

The Plaintiff has not been able to prove its allegation of fraud against the 1^st Defendant.

The 1^st Defendant as Registrar could not be held liable when he proceeded to draw up the order the Court had made by making reference to the court notes. The only error the Registrar made was to draw up the order for $88,990.44 instead of $85,990.44 as stated in the court notes. The following issues are in respect of 2^nd Defendant’s duties in a banker-customer relationship. These are:

Whether or not the 2^nd Defendants acted negligently and in breach of its duty as Bankers to the Plaintiff to notify the Plaintiff of the service on it of a garnishee order.

Whether or not the 2^nd Defendant was under any legal duty to inform the Plaintiff of the service on it of Order of Garnishee Nisi to disclose funds they hold to the credit of the Plaintiff?

The Plaintiff’s complaint is that if the 2^nd Defendant had informed it of the garnishee order nisi, it would have been put on notice that its account had been garnisheed and would have given it the opportunity to inform the bank that judgment had not been entered against them. The 2^nd Defendant has said it had no such duty to the Plaintiff. So was the 2^nd Defendant bound to inform the Plaintiff of the service of the garnishee order nisi on it? The Plaintiff has given particulars of negligence against 2^nd Defendant as follows:

i. In relation to Suit No. MISC 864/2003, Defendant failed to notify the Plaintiff of the service on it of the Garnishee Order Nisi contrary to what pertains in a banker customer relationship as a result of which the Plaintiff was prevented from informing the 2^nd Defendant that no judgment had been entered against it and from being heard on the application before the court.

ii. 2^nd Defendant through its representative gave vague, inaccurate and false evidence to the court regarding ownership of the Plaintiff’s Cedi and Dollar accounts with the 2^nd Defendant, in response to a Garnishee Nisi summons thereby making it possible for the wrongful withdrawals to be ordered by the court.

iii. 2^nd Defendant failed to put itself on enquiry despite the various inconsistencies on the face of the Garnishee nisi summons as to the identity of the judgment debtor.

The Plaintiff has referred to the case of Plunkett v. Barclays Bank Ltd (1936) 2 KB 107 where the court held at p. 119 thus:

Some time must elapse before the making of the garnishee order nisi and the hearing of the application for the payment of the debt to the judgment creditor. … I think it right to say however, that apart from the duty of the garnishee to inform the Court of the nature of the account, it is the manifest duty of a bank, as the Defendants in this case recognized, to inform the customer at once of the service of the order and of the fact that cheques on that account cannot be honoured.

This authority is an English case and is of foreign origin. What is the position in Ghana and under the High Court Civil Procedure Rules, 2004 (CI 47)? Order 47 of CI 47 which deals with Garnishee Proceedings is as follows:

Order 47 r. 1

(1) Where a person in this Order referred to as "the judgment creditor" has obtained a judgment or order for the payment of money by some other person referred to as "the judgment debtor" and the judgment or order is not for the payment of money into court, and another person within the jurisdiction, referred to as "the garnishee" is indebted to the judgment debtor, the Court may, subject to the provisions of this order and of any enactment, order the garnishee to pay the judgment creditor the amount of any debt due or accruing to the judgment debtor from the garnishee, or as much of it as is sufficient to satisfy that judgment or order and the costs of the garnishee proceedings.

(2) An order under this rule shall in the first instance be an order to show cause, and shall specify the time and place for further consideration of the matter, and in the mean time attach such debt as is mentioned in subrule (1), or as much of it as may be specified in the order, to satisfy the judgment or order mentioned in that subrule and the costs of the proceedings.

Order 47 r. 2

An application for an order under rule 1 shall be made ex-parte supported by an affidavit that

(a) identifies the judgment or order to be enforced and states the amount remaining unpaid under it at the time of the application; and

(b) states that to the best of the information or belief of the deponent, the garnishee is within the jurisdiction and is indebted to the judgment debtor and states the sources of the deponent's information or the grounds for the deponent's belief.

Order 47 r. 3

(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.

From the above, the application is made to the court ex parte. It is the duty of the applicant who has applied for a garnishee order nisi to have same served on the garnishee personally and on the judgment debtor for further consideration of the matter. The Plaintiff has not led evidence to prove that the law in Ghana as it stands makes it mandatory for the garnishee to inform its customer that an order nisi had been served on it. While, the 2^nd Defendant could have informed its customer that its account had been attached, it was under no legal duty to inform the Plaintiff that it had been served with an Order of Garnishee Nisi to disclose funds they held to the Plaintiff’s credit. It was for the Plaintiffs/Judgment-Creditors/Applicants who had applied for the garnishee order to notify both the garnishee and the Judgment-Debtor of the garnishee order nisi and of the return date of the hearing of the garnishee summons.

The following issues were not addressed at the trial and since no evidence was led on them, the court declines to answer them. These are:

·         Whether or not at the time of the service of the Order of Garnishee Nisi on the 2^nd Defendant, the Plaintiff had not relocated outside Ghana?

·         Whether or not the Plaintiff notified 2^nd Defendant that it was relocating outside Ghana before it relocated outside Ghana?

·         Whether or not the Plaintiff gave the 2^nd Defendant an address at which it could be contacted on issues affecting its bank accounts when it relocated outside of Ghana?

The court will now consider the issue: Whether or not the 2^nd Defendant gave vague, inaccurate and false evidence to the Court regarding the ownership of the Plaintiff’s Cedi and Dollar accounts?

The Garnishee Order Nisi ordered the 2^nd Defendant herein, (Barclays Bank) to attend the High Court on Thursday 14^th April 2005 to show cause why it should not pay over to the said 2^nd Defendant the sum of over ¢3 billion (old cedis) and $48,000 or some other sum to answer a judgment recovered in the court by Plaintiff against 2^nd Defendant. In response to this, the 2^nd Defendant herein sent a representative to court who gave the following evidence which has been captured in Exhibit L:

I work at the Barclays Bank Head Office legal Department. …. I know the defendants in this case. They are our customers. The defendants have both the United States Dollars and Cedi accounts at our High Street Branch. I have a document in proof of the existence of the said accounts at the High Street Branch of our Bank. I wish to tender same in evidence. “A”. In the case of the dollar account, we have sufficient money to satisfy the amounts but as regards the cedi accounts there is a shortfall.

The evidence given as regards the 2^nd Defendant’s account was not vague and misleading. He gave evidence referring to the Defendants in the plural. However, for all intents and purposes, the evidence showed that there the 2^nd Defendant held 2 accounts with the Garnishee, a cedi and a dollar account. The garnishee ostensibly also provided documents which showed the amounts both in dollar and cedi terms standing to 2^nd Defendant’s credit.

The Order for Attachment of Debts and Summons to Garnishee stated:

ABRAHAM YEBOAH & 24 ORS                                                              Plaintiff

And

1. KARL WUTRICK ESQUIRE

2. SWISS INTERNATIONAL AIRLINES                                                 Defendant

In the matter of BARCLAYS BANK GH. LTD, HIGH STREET                Garnishee

The above-named Garnishee, is hereby prohibited from paying to 2^nd Defendant And is prohibited from receiving all debts due and accruing due from the said BARCLAYS BANK GH. LTD to 2^ND DEFENDANTS AND THE SAID BARCLAYS BANK GH. LTD is hereby ordered to attend the Court at HIGH COURT 12 on THURSDAY THE 14^TH DAY OF APRIL 2005 AT 9.00 to show cause why he should not pay over to the said 2^ND DEFENDANT ….. or some other sum to answer a judgment recovered in the Court by PLAINTIFF.

Although there were errors in the Garnishee Order Nisi served on the Bank,  in that the Bank was to show cause why they should not pay over to the 2^nd Defendant certain sums of money, the penultimate paragraph in Exhibit H stated: … to answer a judgment recovered in the court by Plaintiff against 2^nd Defendant.  The import of the garnishee summons was to prohibit the Garnishee from paying out money to the 2^nd Defendant.            It also further required the Bank to show cause why funds belonging to the 2^nd Defendant and which was in their custody should not be applied in satisfaction of the judgment debt given in favour of the Plaintiff in the suit between Abraham Yeboah & 24 others v. Karl Wutrick and Swiss International Airlines. From the Order Nisi, it was 2^nd Defendant which had been named as the Judgment Debtor. In cross-examination of the Plaintiff’s Attorney on by 2^nd Defendant on 7^th November 2016 the following information was elicited at pp 4 and 7 respectively:

Q: … I suggest to you that Exhibit H only directed execution at the 2^nd Defendant’s account.

A: It did so and did so wrongly because there was no judgment against the 2^nd Defendant…..

Q: … in essence the crux of your complaint in this suit is that the levying of execution against 2^nd Defendant’s account because no judgment was taken obtained against them by the Plaintiffs?

A: … In Exhibit L, the proceedings of the 15^th day of April when the representative of the bank gave evidence…..this was misleading to the court because it gave the impression or states that we have a joint account with the judgment debtor… I say this was misleading evidence ….

The Garnishee Bank at that point would have had no way of knowing that Judgment had not been entered against 2^nd Defendant. The order nisi on its face referred to the 2^nd Defendant as the party against whom the judgment had been entered against. The 2^nd Defendant in the instant case did not act negligently and in breach of its duty as Bankers to the Plaintiff as it was not legally bound to inform the Plaintiff of the service on it of a garnishee order.

Based on the evidence contained in Exhibit L, the court made the Order Absolute. On being served with the Garnishee Order Absolute, 2^nd Defendant herein could not have refused to pay the sum disclosed to be paid out as per the Order. These sums paid out by the 2^nd Defendant upon the Garnishee Order Absolute were GH¢301,664.06 and US$88,990.44.

The rest of the issues which are:

·         Whether or not on the admitted facts of the case, there is sufficient nexus between the wrongs allegedly perpetrated by the 1^st, 2^nd and 3^rd Defendants to warrant the claim of joint liability against them and

·         Whether or not the 1^st Defendant was liable for the attachment and garnishee of the account of the Plaintiff could be subsumed under the following issue:

Whether or not the Plaintiff is entitled to its reliefs it is claiming against the Defendants jointly and severally?

In Re Ashalley Botwe Lands: Adjetey Agbosu & Others v. Ebenezer Nikoi Kotey & Others (2003/2004) 1 SCGLR 420 @ 444 the court held as follows:

It is trite learning that by the statutory provisions of the Evidence Decree, 1975 (NRCD 323), the burden of producing evidence in any given case is not fixed but shifts from party to party at various stages of the trial depending on the issue(s) asserted or denied.

In the case of Fosua & Adu-Poku v. Dufie (deceased) and Adu-Poku Mensah (2009) SCGLR 316, the court held that Section 11(4) of the Evidence Act, 1975 NRCD 323 put the obligation in civil proceedings of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. It is well established that the call for proof on the preponderance of probabilities does not require an inflexible proof either beyond reasonable doubt or with mathematical exactitude or precision as would fit a jigsaw puzzle. Preponderance of probability connoted an element of doubt or uncertainty and recognized that where there were two choices it was sufficient if the choice selected was more probable than the choice rejected. (See Bisi v. Tabiri alias Asare (1987/88) GLR 360).

The obligation on parties invoking the jurisdiction of the court is neatly captured in Sections 10(1), 11(1) and 11(4) of the Evidence Act (1975) NRCD 323:

Section 10(1)

For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

Section 11(1)

For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

Section 11(4)

In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.

In the case of Takoradi Flour Mills v. Samir Faris (2005/2006) SCGLR 882 at 900 the court said:

in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant, must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.

In this court’s considered opinion, the Plaintiff has sued the wrong persons. When it discovered that its account had been emptied when it had filed a Statement of Defence and was awaiting trial, it should have sued the persons who had made the various applications before the court. It was their actions which resulted in the garnishee proceedings. Abraham Yeboah and Others, the Plaintiffs in Suit No. MISC. 864/2003 were the proper parties to be sued. It was their applications which triggered the whole matter. This is because they and their Counsel knew or ought to have known that they had sued 2 Defendants in the said suit. They and their Counsel knew or ought to have known that they had taken judgment against 1^st Defendant and not 2^nd Defendant in that suit. They and their Counsel also knew or ought to have known that they had discontinued their suit against 2^nd Defendant. They and their Counsel therefore should not have proceeded to garnishee 2^nd Defendant’s account. In spite of this, they and their Counsel made the trial court believe that they had obtained judgment against the 2^nd Defendant by filing an application for an order nisi against 2nd Defendant’s account. Consequently they succeeded in obtaining an order absolute against the 2^nd Defendant without serving the 2^nd Defendant with the order nisi to enable it appear in court to be heard on the matter. From Exhibit M, they had previously targeted this account resulting in proceedings before the Court of Appeal in which Plaintiff’s account with the 2^nd Defendant was released to it.

(See Exhibit M).

Much as this is an unfortunate situation, the current Defendants before the court are not the proper parties before court as they were not the beneficiaries of the money which the Plaintiff has been deprived of. They did not initiate the processes which resulted in the depletion of Plaintiff’s accounts. They were not responsible for the averments made which triggered off the garnishee proceedings. They were only the unwitting tools used by the Applicants in Suit No. MISC.864/2003. The said Applicants in Suit No. MISC/864/2003 should never have proceeded against the 2^nd Defendants in the first instance. Any wrongdoing should not be laid at the steps of the current Defendants. It was the Applicants and their Counsel who manipulated the court system to levy execution on the account of a party which they knew they never had obtained judgment against.

In these extenuating circumstances, each party is to bear its own costs.

(SGD)

JENNIFER A. DODOO

JUSTICE OF THE HIGH COURT