By Frederick Gurah SAMPSON ESQ
The objective of every party in Civil Proceedings is to obtain a satisfactory judgment in his or her favour. Having a favourable judgment therefore comes with its own joy and excitement, especially when it comes after a long trial. It was the learned George Bernard Shaw[1], who described his judgment for Yaw Asante Agyekum[2] in the Court of Appeal case of Yaw Asante Agyekum v the Republic[3] as ‘orgasmic’ and rightly so. The ‘orgasmic’ feeling after obtaining judgments have in some cases led a number of Execution Creditors qua Execution Creditors or their lawyers to attach properties they ought not to attach. Upon obtaining judgment, the next stage is the execution of same, after the seven-day automatic stay of execution[4].
The execution process starts with the filing of Entry of Judgment in the Circuit Court and Superior Courts[5] or Formal Decree in the District Court[6] as the case may be. Execution of judgment is the steps a victorious party in litigation or judgment creditor takes to realise the fruit of the judgment. There are several modes of execution of judgments or orders, including garnishees, writ of possession, writ of fieri facias (fi.fa) among others. Garnishees usually do not come with high risk of wrongful attachments, but attachment by fieri facias does. In attaching properties, one must be careful in order not to bring upon itself further unintended costs and injuries.
In this paper, the Author examines the law on attachment of properties in execution of judgments in civil litigation, what a Judgment Creditor must do before attachment, wrongful attachments, what happens if a party attaches a wrong property and the remedy available to an aggrieved party (whose property has been attached unlawfully), whether a party who succeeds in an Interpleader is estopped from subsequently commencing an action, the question of whether time runs against the claimant and how is time reckoned in that regard.
The Author will make recommendations and conclude by positing that a successful claimant has a right to commence a fresh action for specific reliefs which were not sought in the Interpleader proceedings, against the Execution Creditor who unlawfully attaches a property without conducting due diligence, this the Author will do by reviewing case law and statutes relevant to the subject matter.
Modes of execution in civil proceedings in Ghana
The law recognizes several modes of execution in Civil Proceedings in Ghana. The High Court (Civil Procedure) Rules, 2004 (C.I 47) provides generally as follows, “Subject to these Rules, a judgment or order for the payment of money, not being a judgment or order for payment of money into court may be enforced by one or more of the following means (a) writ of fieri facias; (b) garnishee proceedings; (c) a charging order; (d) the appointment of receiver; (e) in the case in which rule 5 applies, an order of committal or a writ of sequestration.
[7] Where the judgment or order is for possession of immoveable property, the law provides that, “Subject to these Rules, a judgment or order for the recovery of possession of immoveable property may be enforced by one or more of the following means (a) writ of possession; (b) in a case where rule 5 applies, an order of committal or a writ of sequestration”. These and many other modes of execution are known to the law.
A Judgment Creditor who obtains judgment against another party (Judgment Debtor) is therefore entitled to use any of the means of execution known to law to realise the fruit of the judgment. Depending on the nature of judgment obtained, the appropriate means of execution is selected by the Judgment Creditor/Execution Creditor, except that the law provides that movable properties must of a necessity be attached first before immovables. Order 44 rule 2(3) of the High Court (Civil Procedure) Rules 2004 (C.I 47) provides that, “The immovable property of a judgment debtor shall not be levied in execution if the judgment debtor shows that the judgment debtor has sufficient movable property within the jurisdiction to satisfy the judgment or order and costs.”
It is when the movable properties are not enough to satisfy the judgment debt, that the immovable properties will be levied in execution. The law is that “Where execution is levied against immovable property, there shall be indorsed on the writ of execution a statement that there was not sufficient movable property to satisfy the judgment debt.”[8] For purposes of this paper, the Author elects to discuss modes of challenging fi.fa attachments and garnishees, and the matters that arise as a result.
Challenging Attachments.
Garnishees as a means of Attachments in Execution
In Garnishees, the law allows a third party or any person who has a claim in the sums garnisheed to raise a claim and challenge the attachment. Garnishee proceeding is the process where a Judgment Creditor proceeds against sums standing to the credit of a Judgment Debtor with a third party (Garnishee) usually a bank or any other person for payment of judgment debt.
The rules provide in this regard that, “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 debt or order and the costs of the garnishee proceedings.” For purposes of this paper, the processes for the application for garnishee are not relevant, as same have been dealt with by the Author in a previous article.[9]
The relevant part of the Garnishee proceedings for purposes of this paper, is the part of ‘Dispute of Liability by Garnishee’ and ‘Claims of third Persons’. ‘Dispute of Liability by Garnishee’ implies that the garnishee is not indebted to the judgment debtor and therefore the sums held by the garnishee prima facie cannot be attached in execution, since it is the indebtedness that forms the basis for the proceedings.[10] Order 47 rule 5 of the High Court (Civil Procedure) Rules, 2004 (C.I 47), provides in this regard that, “Where on the further consideration of the matter the garnishee disputes liability to pay the debt due or claimed to be due from the garnishee to the judgment debtor, the Court may summarily determine the question in issue or order that any question necessary for determining the liability of the garnishee be tried in any manner in which any question or issue in an action may be tried.”
The provision in Order 47 rule 5 enables persons who allegedly hold funds on behalf of the Judgment Debtor an opportunity to dispute the liability if any. For instance, if the funds in the possession of the garnishee belong to a third party but same is being held by the judgment debtor in trust, or there is a ‘lien’ over the said funds prior to the judgment. There are even instances where although the funds are held by the garnishee but same has been used as a collateral security for a credit facility with the garnishee.
The rules further provide for ‘Claims by Third Persons’ under Order 47 rule 6 that, “If in garnishee proceedings it is brought to the notice of the Court that some person other than the judgment debtor is or claims to be entitled to the debt sought to be attached or has or claims to have a charge or lien on it, the Court may order that other person to attend before the Court and state the nature of the claim with particulars of it.”
[11] The Court will determine whether the claim is made and if same is made, the garnishee will be released from attachment. Order 47 rule 6(2) provides that, “After hearing any person who attends before the Court in compliance with an order under subrule (1), the Court may summarily determine the question in issue between the claimants or make such order as it considers just, including an order that any question or issue necessary for determining the validity of the claim of the other person as is mentioned in subrule (1) to be tried in any manner in which any question or issue in an action may be tried.”
A claim by a third person may imply that, although the money sought to be attached may be with the garnishee in the name of the judgment debtor, but the judgment debtor is just there in name, the money actually belongs to a third party who is not the judgment debtor, it could also be that the money sought to be attached may be in a joint account in which the third party is the owner or part owner.
The question of whether a Joint Account can be garnisheed or not also engaged the attention of the present Author in an earlier paper[12] and does not need to be rehashed, save to re-emphasize that in the Author’s view, Joint Accounts can be garnisheed and attached in satisfaction of a judgment debt, once an opportunity exists for a joint account holder who is not the judgment debtor to dispute and challenge the attachment. In that case, what is attachable is that part of the Joint Account that belongs to the Judgment Debtor without more. The above shows that the Courts are interested in ensuring that even in Garnishee proceedings, the funds attached are funds that belong to the judgment debtor and no one else.
Fieri Facias (fi. fa) as mode of Execution and Challenges to the Attachment
Regarding writ of fieri facias (fi.fa), it is the process of attaching properties either moveable or immoveable of judgment debtors in satisfaction of judgment debts. A Judgment Debtor’s vehicle, plants and machinery, landed property etc. could be attached, a reserve price obtained and sold in satisfaction of the judgment debt. The rules provide that, “A judgment or order for the payment of money may be enforced by a writ of fieri facias.”
[13] “Where a writ of fieri facias is issued it shall be executed by the seizure and sale of the debtor’s property sufficient to satisfy the amount of the judgment debt together with post-judgment interest at the appropriate rate until payment and the costs of the execution.”[14] When a property is attached by writ of fieri facias, it is seized from the judgment debtor until sale or the repayment of the judgment debt. Under the rules, “Subject to other provisions of this Order and to provisions of any other enactments, a writ of fieri facias shall be put into effect (a) in respect of any movable property in the possession of the judgment debtor by actual seizure; property being kept in the custody of the Registrar until sale;…..(d) in respect of immovable property or any interest in immovable property, whether at law or in equity, by a written order prohibiting the judgment debtor from alienating the property or any interest in the property by sale, gift or in any other way, and prohibiting all persons from receiving it by purchase, gift or otherwise; and the Registrar may also, by direction of the Court, take and retain actual possession of the property.”[15]
The law provides for a person who claims an interest in a property that has been attached in a fi. fa proceeding to challenge the attachment and state their claim therein. The High Court (Civil Procedure) Rules 2004, (C.I 47) provides two modes of challenge. The two modes are the Registrar’s Interpleader and Stakeholder’s Interpleader under Order 44 and Order 48 respectively of the High Court (Civil Procedure) Rules. This fact was acknowledged in the case of Ebenezer Darkwa and Another v Adonteng Community Bank[16] to which the author shall return.
Order 44 rule 12 of C.I. 47 provides that, “A person who makes a claim to or in respect of a property taken in or interested to be taken in execution under a process of the Court, or to the proceeds or value of any such property, shall give notice of the claim to the Registrar and shall include in the notice a statement of the person’s address for service.” This is to enable the person claiming interest in the property to assert his or her rights in the property.
Under Order 44 rule 12 proceedings, the person claiming an interest in the property attached or the proceeds or value of the said property (Claimant) can file a notice of claim stating the basis of the interest or claim. The Notice of Claim is served on the Execution Creditor, who would either admit the claim or dispute the claim.
The rules provide that, “On receipt of a claim made under subrule (1), the Registrar shall forthwith give notice of it to the execution creditor who shall within four days after receiving the notice, give notice to the Registrar informing the Registrar whether the execution creditor admits or disputes the claim.”
[17] Where the Execution Creditor admits the claim, “…the Registrar shall forthwith withdraw from possession of the property claimed and having withdrawn the Registrar may apply to the Court for an order restraining the bringing of an action against the Registrar in respect of the Registrar having taken possession of that property.”[18] Upon filing to admit the claim, the Execution creditor shall only be liable to the Registrar for the fees and expenses incurred by the Registrar before the receipt of that notice.
[19] If the Execution Creditor disputes the claim, the Execution Creditor will file a Notice of Dispute and serve same on the Claimant, the filing of a Notice of Dispute implies that issues are joined in the Author’s view as to the ownership of the property attached or the appropriateness of the attachment, for which the court must make a determination. The rules provide that, “An application for relief by the Registrar under this rule shall be ex parte to the court seeking an order that the claimant and the execution creditor shall appear before the Court on a date specified in the order for the issue between them to be determined.”[20]
In practice, when the Execution Creditor files the Notice of Dispute, the next stage is for the Claimant to file an Affidavit of Interest, deposing to and stating the basis of the interest and the documents in support of the claim. Upon service of the Affidavit of Interest on the Execution Creditor, the Execution Creditor also files an Affidavit of Dispute with the facts and evidence disputing the claim of the Execution Creditor or asserting a justification for the attachment and serves same on the Claimant. After the exchange of the respective Affidavits and exhibits, issues are joined on the ownership of the property or appropriateness of the attachment.
The Court can either determine same on the affidavit evidence filed or take Witness Statement and examine the witnesses in the Witness box, where parties are cross-examined by the respective lawyers or parties as the case may be. Order 44 rule 13 provides that, “Where on the hearing of proceedings pursuant to an order made under rule 12(4) all the persons by whom adverse claims to the property in dispute, in this rule referred to as “the claimants” appear, the Court may (a) summarily determine the question in issue between the claimant and the execution creditor and make an order accordingly on such terms as may be just; or (b) order that any issue between the claimants and the execution creditor be stated and tried and may direct which of them is to be plaintiff and which defendant”.
The Court will make a determination in the proceedings after the hearing. If the Court rules in favour of the Claimant that the property belongs to the Claimant, the property is released from attachment. If however the Claimant is unable to prove its claim, the Notice of Claim will be dismissed, and the execution will proceed, any person aggrieved has fourteen days within which to file an appeal.[21]
In the case of Martin Alamisi Amidu & Others v Attorney-General, Waterville and Anator Holdings,[22] The Plaintiff Martin Alamisi Amidu[23] obtained judgment against the Defendant. In the process of execution, certain properties of the Defendant company were attached. The Apex Court pronounced on the scope of Order 44 Rule 12 thus, “Rule 12 requires a claimant to file his claim by way of notice, and it also requires the court to make a determination if the execution creditor disputes the claim.
It is reasonable to say that the court cannot make a determination just by looking at the notice of claim, it requires some form of evidence, by affidavit (if it opts to do a summary hearing under rule 13(1)(a)) or viva voce evidence if it directs a triable issue and thus decides to conduct a full-blown trial in complex cases, under rule 13(1)(b). Consequently, the court is duty bound to have regard to both the notice and affidavit of interest filed by a claimant in making a determination of his claim.
Thus, where a claimant fails to disclose his right to, or interest in, some property in the notice of claim but does so in the affidavit of interest, it is not a fatal mistake or omission….” In this case, Anator Holding Company Limited and Anator Quarry Company Limited claimed interest in the properties attached in the execution of the judgment against Alfred Agbesi Woyome. The Attorney-General was described as the Judgment Creditor and beneficiary of the judgment that had been entered in favour of the Plaintiff in the case of Amidu (No. 3) v Attorney-General; Waterville Holding (BVI) Ltd. & Woyome (No 2)[24]. In seeking to execute the judgment against Woyome the judgment debtor, the Judgment Creditor attached two properties, house numbers 260 and 267 situated at Adjiriganor which were said to belong to the Judgment Debtor, Woyome. Also included in the attachment by the judgment creditor were Plant and Machinery belonging to Anator Holding Company and its subsidiary company, Anator Quarry Company. When the attachment of the properties got to the attention of UT Bank (In Receivership), Claimant therein, it filed a claim of interest in some of the properties attached by the judgment creditor including House Numbers 260 and 267. Essentially, the Claimant, UT Bank (In Receivership) claimed an interest in the said properties. To the claim, the judgment creditor filed a notice of dispute. The Claimant filed its affidavit of interest in which it contended that the two houses 260 and 267 were sold to the Claimant by the judgment debtor (Woyome), while the other properties were used by the judgment debtor as collateral securities for some loans from the Claimant.
The Claimant exhibited the title deeds for the purchase of House Number 260 and 267 as per the sale between the Claimant and the judgment debtor. The Judgment Creditor disputed the claim on the basis that the claimant was in collusion with the judgment debtor, that the purported sale of the two houses (House Numbers 260 and 267) was a sham. The Court said that the burden was on the claimant to prove its claim, after which the burden would shift to the judgment creditor.
The Court found that the basis of the Claimants assertion were unfounded. The court upon reviewing of the affidavit and evidence placed before the Court found same unacceptable. The Court among others stated that, “… I have no doubt in my mind that the Claimant was assisting its customers, the judgment debtor herein, to hide the identity of his Trassaco Valley properties under the cloak or veneer of legality by claiming it had purchased them.” The Court further in review of the evidence reasoned thus, “… I am satisfied that the continued possession by the judgment debtor and/or his agents in these properties long after the purported sale was not an isolated act, but was part of a scheme carefully crafted between the Claimant and the judgment debtor to use the purported sale documents to shield the assets of the judgment debtor…”
The Court continued thus, “…. When all these pieces of evidence are put together, I am satisfied that the judgment debtor never relinquished his title to, and never sold properties numbered 260 and 267, notwithstanding the documents tendered as evidence of the sale. The Claimant was aware of this and directly and willingly aided the judgment debtor in this enterprise…” In the mind of the Court, the Claimant sought to mislead the court into believing that the claimant had an interest in the properties attached.
The Supreme Court[25] speaking through the admirable judicial scholarship of Bennin JSC, sounding caution to claimants like the one in that case, said, “The Court cannot be an instrument of fraud. In one breath, the Bank says the properties have been sold to them by the judgment debtor. In another breath, the judgment debtor says he never encumbered the two houses except releasing them as collateral for the loan. So the parties have taken these contradictory positions so that whichever story the court chooses to believe, the properties are saved from execution.
But what the court believes and is convinced about is that the properties were neither sold nor used as collateral for the loan. The entire scheme is a sham.” In dismissing the claim by the Claimant, the Supreme Court concluded thus, “…In effect, I hold that any of the properties listed in exhibit 5 and 5i that is found to be owned by the judgment debtor is free from any encumbrance or charge and is liable in execution of the judgment against him. I reject the Claimant’s application and dismiss same accordingly.”
The learning in this regard is that, merely laying claim to a property attached in execution does not automatically warrant a release from attachment. The claimant has a burden of proof to establish that it has an interest in the property attached and that proof is subject to all the legal requirements known to law, failing which the claim will be dismissed as was done in the case of Martin Alamisi Amidu & Others v Attorney-General, Waterville and Anator Holdings.
Jurisprudence of wrongful attachment and interpleader
The jurisprudence of this subject is rich in judicial decisions. There is no poverty of legal thought in this aspect of the law. The Court in numerous cases have had the opportunity to make pronouncements on these matters with the view of clarifying the law and sending a clear signal to Execution Creditors to be prudent in attachment of properties in execution of judgment debts.
In the case of Afari v Asante,[26] the celebrated Ghanaian jurist Ollennu J (as he then was) as far back as 1961, had an occasion to deal with an interpleader action. The facts of this case were that a certain Kwame Amponsah Darko, the original owner of a farm, the subject matter of the suit, sold the farm to the Plaintiff in the suit in 1950. A year later in execution of a judgment obtained against Kwame Amponsah Darko, the farms were attached and sold at a public auction under a writ fi.fa and bought by a certain Kwadjo Duku, who in turn sold it to the Defendant in 1958. The Plaintiff commenced an action for a declaration of title and for damages before the South Akim-Abuakwa Local Court but lost.
He successfully appealed to the High Court, Ollennu J, as he then was held inter alia that, “a person whose property has been attached in execution of a decree against another person is not obliged to interplead. His failure is not a bar to any future action he may decide to take in relation to the property.” The learning from this dictum is that, a person whose property has been unlawfully attached can decide not to proceed either under Order 44 or 48, but after the property is disposed of can sue for the wrong done.
The person who purchases such an item obtains virtually nothing if the judgment debtor is not the owner of the property and by extension the property ought not to have been attached. The principle of law is that, “a man cannot give what he does not have”, in latin, nemo dat quod non habet. His Lordship Ollennu J (as he then was) in that regard delivered himself thus, “a purchaser at a sale in execution of a judgment acquires no more than the right, title or interest of the judgment-debtor.
In July, 1951, Kwame Amponsah Darko having sold the farm in December 1950, had no interest which could be sold in execution. Kwadjo Duku therefore bought nothing and he sold nothing to the defendant-respondent; the defendant has no claim to the farm.” The import of this dictum to the mind of the Author is that even without interpleading, a person whose property has been unlawfully attached can maintain an action against the execution creditor as a tortfeasor. The Author questions whether such a person will not be caught by acquiescence, unless the Claimant or Plaintiff is able to show that he or she was not aware of the initial wrongful attachment.
In the Author’s view, if the property has been auctioned, the Claimant could be entitled to recover the sales proceeds. The Author takes that view because Order 44 rule 12 does not deal with only the property but also “…. The proceeds or value of any such property”, this to the Author’s mind, means that even if the property has been disposed of as a result of the unlawful attachment, once the claimant succeeds, he or she will be entitled to recover the sales proceeds from the execution creditor without prejudice to any other remedy available and known to law.
This position was given judicial blessing in the case of BF Petroleum Limited v Bluesoil Limited, Bayport Savings and Loans Plc as Claimant[27], where Dr. Ernest Owusu Dapaa J.A echoing the unanimous voice of the Court of Appeal[28] had this to say, “…In respect of the Hyundai Elantra, if it has indeed been sold, the Appellant shall be entitled to pursue its remedies including an entitlement to any proceeds from that sale or such further relief against the Respondent as may be appropriate under the law…” (emphasis the author’s)
In Mabsout v Jos Hansen Soehne (Ghana) Limited,[29] the defendants attached two vehicles in execution of a judgment debt against a company called Wabtraco. The Plaintiff interpleaded and sought for a declaration of title to the two cars and damages for wrongful attachment. After inspecting plaintiff’s documents, the defendants agreed to release the vehicles whereupon judgment was entered against the defendants for the reliefs claimed, save damages which the trial judge reserved for determination in a fresh action. The Plaintiff then commenced this instant suit and claimed damages for wrongful seizure of the vehicles.
Defendant through its counsel submitted at the hearing that before the seizure, the defendants made enquiries which confirmed that the vehicles belonged to Wabtraco and registered in their name. Defendant further contended that in failing to register the vehicles in his name, the plaintiff had represented by conduct that the vehicles belonged to and remained in the name of Wabtraco, and so plaintiff was estopped from complaining of the attachment, a position the plaintiff disagreed. The court dismissed the estoppel argument and held that, “…In the instant vase the defendants’ act appeared to have been conduced to by the conduct of the plaintiff and the defence of estoppel by conduct would have operated in their favour but they were estopped from raising such a defence because of their admission that the seizure was wrongful and judgment having been given against them on that basis. Since that judgment was still subsisting it was not open to them to relitigate the wrongfulness of the seizure.”
In the case of The Big Boys Company Ltd v Access Bank Ghana[30]Access Bank Limited instituted an earlier action against Rockshell International Limited and obtained judgment against Rockshell. Upon entry of judgment, Access Bank attached certain properties that Access Bank perceived erroneously to belong to Rockshell International Limited. Big Boys Company Limited filed a Notice of Claim relative to the Craine the subject matter of the suit in Big Boys Limited v Access Bank.
The Honourable Court upon review of the processes and evidence ruled in favour of Big Boys Company Limited and the Crane was released and discharged from attachment. Having succeeded in the interpleader proceedings, Big Boys Company Limited commenced an action against Access Bank Company Limited for inter alia, (a) Special Damages of USD25,000 per day, from May 12, 2016, to the release date Wednesday 15th March 2017 of the Crane (when the crane was under attachment) and the Plaintiff could not earn fees under the contract. (b) Payment for the cost of any damage caused to the crane as a result of its non-usage during the period of attachment.
In the case of Big Boys v Access Bank, the Court before whom the Interpleader was conducted it seems did not award the damages claimed by Big Boys leading them to commence an action. The trial High Court entered judgment for Big Boys and dismissed the counterclaim of Access Bank. The trial Court ordered Big Boys to recover the sum of USD25,000.00 per day from 12th March 2016 to the 15th March 2017 as special damages, as well as cost of GHS80,000.00 against the Defendant. The trial Court held that the attachment of the mobile crane was wrongful as the latter acted without due diligence.
The Defendant (Access Bank) aggrieved by the High Court judgment appealed to the Court of Appeal. In the considered view of the Court of Appeal, though the attachment was wrong, the Plaintiff failed to prove its claim to special damages. The Court of Appeal set aside the special damages and in place awarded the Cedis equivalent of USD200,000.00 as general damages and reduced the costs from GHS80,000.00 to GHS20,000.00. On a further appeal and cross appeal to the Supreme Court, their Lordships, held that, “It is a fact that at the heart of this appeal and cross-appeal is the attachment of the Plaintiff’s 450 ton mobile crane and the award of damages to the latter.
Rightly for that matter, both lower courts concluded that the said attachment of the Plaintiff’s crane by the Defendant, in satisfaction of the judgment debt owed the latter by Rockshell International Ltd was unlawful – the reason being that the crane belonged to the Plaintiff. As rightly put by the trial judge, the Defendant acted without due diligence in relation to the transaction between it and Rockshell International.” The Court in this case therefore awarded damages to the Claimant after the interpleader when the Claimant commenced an action against the Defendant for wrongful attachment.
In the case of Ebenezer Darkwa and Another v Adonteng Community Bank[31] their Lordships at the Supreme Court[32] had the opportunity in pronouncing on wrongful attachment. In that case the Appellant sued the 1st Respondent and two others at the High Court Koforidua, claiming against them, jointly and severally a sum of money and interest. Appellant obtained summary judgment pursuant to which Appellant proceeded to attach the Engen Petrol Filling Station with its pumps, Toyota Tacoma vehicle GH 7635-Y and another property not listed on the writ of fi.fa. The Respondents unhappy with the attachments filed a Notice of Claim under Order 44 rules 12 and 13 which resulted in a hearing of arguments.
The Court after hearing the arguments released the properties from attachments. The Respondents aggrieved by the wrongful attachment issued a writ against the respondents claiming among others special damages. The Appellant filed a defence contending that the Respondents were estopped from bringing the suit since the issue of ownership of the properties were determined in the interpleader suit. The trial court erroneously agreed that the issue was determined in the interpleader proceedings.
The trial judge ruled inter alia that the law frowns on piece-meal litigation and that the Respondent should have brought their whole case before the court (during the interpleader proceedings) for determination – once and for all including seeking special damages. The Respondent appealed against the High Cour’s judgment to the Court of Appeal, which upheld their appeal and set aside the judgment of the High Court.
In the recent case of BF Petroleum v Bluesoil Limited, Bayport Savings and Loans Plc as Claimant[33], BF Petroleum as Plaintiff had sued Bluesoil Limited and obtained a default judgment. In attempting to execute the said judgment, BF Petroleum wrongfully attached two vehicles that belonged to Bayport Savings and Loans Plc.
It is imperative to note that Bayport was not a party to the suit at the court below and so it got to know of the attachment afterwards. Bayport as a diligent owner wrote to BF Petroleum stating its interest in the properties attached, which was disputed by BF Petroleum which occasioned a full hearing. Bayport Savings and Loans as Claimant filed its Affidavit of interest and BF Petroleum also did and after a few exchanges the matter was ripe for hearing.
On the day of the hearing even though the Execution Creditor informed the Court that the property was still with the auctioneer yet the court dismissed the Claimant’s claim in the following words, “Secondly, in respect of the other vehicle which is alleged to be still under attachment, and which is in the hands of the auctioneer, the Claimant was not diligent enough to claim his right timeously. An attachment done somewhere October 2021 and which is almost two (2) years raises a suspicion I am unable to put a finger on, I will therefore decline the grant of the application on that aspect too. In the circumstances I will dismiss the affidavit of interest filed by the claimant and it is hereby dismissed. No order as to cost” whereupon the Claimant filed a successful appeal to the Court of Appeal.
The learned Court of Appeal reversed the judgment of the High Court and held inter alia that the learned High Court was wrong in dismissing the Appellant’s notice of claim. The Court of Appeal concluded thus, “Having considered all the ground of appeal we find that the learned trial Judge erred in law and in fact in dismissing the Appellant’s Notice of Claim. The Court below was not functus officio regarding the Hyundai Elantra.
It was obligated to determine whether the Appellant could at least be awarded the proceeds or declared rightful owner if the sale was indeed carried out without due regard. Similarly, the Court below erred in holding that the Appellant did not act timeously concerning the Jeep Compass……” Their Lordships continued thus, “The ruling of the High Court dated 19th July 2023 is hereby set aside. It is declared that the attachment of the Hyundai Elantra (GN 5214-19) and the Jeep Compass (GN 3889-19) in execution of the judgment against Bluesoil Investment was wrongful and unlawful”… The judgment of the high court was accordingly set aside.
What must a Judgment Creditor do before attachment?
Due Diligence
When a judgment is obtained against a party, it is against that party that the execution creditor must proceed. Care must be taken to ensure that, in seeking to execute, another person’s property is not prejudiced. The Court in Big Boys v Access Bank among others said, “…Rightly for that matter, both lower courts concluded that the said attachment of Plaintiff’s crane by the Defendant, in satisfaction of the debt owed the latter by Rockshell International Ltd was unlawful- the reason being that the crane belonged to the Plaintiff. As rightly put by the trial judge, the Defendant acted without due diligence in relation to the transaction between it and Rockshell International. The Court of Appeal even rightly stated that the attachment of the mobile crane constituted a tort against the Plaintiff”. The Supreme Court further stated, “…But more importantly, the Defendant did not do due diligence in attaching the crane and both trial court and the Court of Appeal made findings to this effect which findings are clearly supported by the evidence on record.”
In underscoring the importance of due diligence before attachment of properties in execution, the trial court in the Big Boys Limited v Access Bank case, on its part had this to say, “… I must observe that the conduct of the Defendant in relation to the transaction between it and Rockshell International was done haphazardly and without due diligence. If the Defendant had conducted a proper enquiry from the appropriate sources, coupled with some form of vigilance, it would have been clear to them that the crane did not belong to Rockshell International Ltd and would not have attached same.” The trial judge went further to state thus, “There was no legal basis for such an attachment of the crane. For the foregoing reasons, I find that the attachment of the crane was unlawful…”
In her book, The Handbook on Civil Procedure and Practice in Ghana, (2023), the learned Author Francisca Serwaa Boateng[34], in discussing what an execution creditor must consider before attaching property said thus, “In executing a judgment by way of fi.fa, the judgment creditor must pay attention to these three issues, namely, whose property should be seized, what property is to be seized and how much of the property must be seized”…. In discussing the first point the learned Serwaa Boateng continued thus, “(a) Whose property is to be seized: It is the judgment debtor’s property that must be attached and sold in satisfaction of the judgment debt. If the property belongs to the judgment debtor but it is in the possession or custody of a third party, the bailiff can also seize it in execution.”
Risk in failing to do due diligence or wrongful attachment
When an Execution Creditor allows the orgasmic feeling to lead him or her to levy execution wrongfully, it has dire consequences which would come back to harm them. It is submitted that wrongful execution is wrongful ipso facto. It is also trespassing to a person’s property.
When an Interpleader claim under Order 44 or Order 48 of the High Court Civil Procedure succeeds, the person who succeeds is entitled to compensation, damages and costs for the proceedings. Before contemplating attaching a property, one must appreciate that he or she owes a duty of care to the owner of the property. One must conduct due diligence to know that the property being attached belongs to the Judgment Debtor before proceeding to attach. As the Court said in the case of Big Boys v Access Bank, Due diligence simply means the “reasonable steps taken by a person in order to satisfy a legal requirement or comprehensive appraisal of business undertaken by a person in a business transaction. In other words, it is the investigation or exercise of care that a reasonable person or business is expected to take before entering into any business transaction or contract.”
In the context of execution, the Author suggests, due diligence is the reasonable steps taken by a prudent Judgment Creditor regarding the ownership of a property on which he or she seeks to levy execution to ascertain that the subject property belonged to the Judgment Debtor and no other third party. If property is unlawfully attached and the Claimant suffers special damages, if a suit is commenced and special damages are pleaded, particularized and proved, the Court would award that to the Claimant.
Rights of a Person who has suffered wrongful execution
A party whose property has been wrongfully attached after successful challenge can mount an action against the Execution Creditor for wrongful attachment. The authorities in Staveley & Co. Motors[35], Agyekum v Alawiye[36] are to the effect that where there is wrongful execution, an action could lie against the person who has wrongfully attached another’s property. Wrongful attachment is actionable per se in the Author’s view, it is trespass to the Claimant’s property for which an action could be successfully commenced against the Execution Creditor.
The attachment of a person’s property without basis causes injuries and harm to the owner of the property. The doctrine of equity is that, equity will not suffer a wrong to be without remedy. It is submitted by the author with fortification in the authorities that, an action can be commenced for the award of damages. In the case of BF Petroleum v Bluesoil Limited, Bayport Savings and Loans Plc as Claimant[37] where the Respondent wrongfully attached the Appellant’s vehicles, the Court of Appeal speaking through Dr. Ernest Owusu Dapaa had this to say in conclusion of the dictum of the Court of Appeal, “…. Regarding damages and other remedies, we make no pronouncement as Appellant forthwith may commence fresh proceedings for damages if it so elects…” This suggests that the law recognizes the right of the Claimant to proceed against the Execution Creditor for wrongful attachment.
Is an Aggrieved Party after Order 44 and 48 Proceedings estopped from further suits?
A successful action in an interpleader, whether under Order 44 or 48 does not bar the Claimant from proceeding against the Execution Creditor. In the case of Mabsout v Jos Hansen and Soehne (Ghana) Limited[38], the defendant contended that the plaintiff was estopped but that contention was not successful before the Court. In Ebenezer Darkwa v Adonteng Community Bank Limited the court rejected the estoppel argument when their Lordships delivered themselves thus, “…In our view, the instant suit which followed the interpleader proceedings under Order 44 rules 12 and 13 did not seek a relief that ought to have been sought in the said interpleader proceedings and interpleader proceedings being interlocutory could not have resolved or taken care of the issue of special damages.
It is our candid opinion that a perusal of the record of appeal indicates that the proceedings and judgment which followed was not a final judgment and the issues are not the same. The instant proceedings cannot by any stretch of imagination be described as piecemeal litigation and the issue of damages was not res judicata to constitute issue estoppel. Moreover, where there is wrong execution, an action could lie against same”
Does time run against the Claimant?
In interpleader proceedings either under Order 44 or 48, it is usually possible that the Claimant may not be a party to the suit between the Plaintiff and Defendants. By the time the Execution Creditor would be attaching a property, the Claimant or third party may not be aware. Therein lies the question on ‘when does time start running for a Claimant to be accused of not acting timeously?’. In the case of BF Petroleum v Bluesoil Limited, Bayport Savings and Loans Plc as Claimant, the Claimant took steps the moment it got wind of the attachments of its assets.
It wrote a letter to the Execution Creditor and in the same month filed a Notice of Claim. The learned judge at the trial court held erroneously in the view of the Author, that Bayport did not act timeously. The Court of Appeal in reversing the erroneous decision of the court below spoke through Owusu-Dapaa JA thus, “The learned trial judge also found that, regarding the Jeep Compass, the Appellant had failed to act timeously. The record shows, however, that the Appellant was not a party to the main suit and only became aware of the attachment in or around April 2022, when its customers reported the problem.
The Appellant, upon receiving that information, wrote letters to the Court Registry and promptly filed its Notice of Claim on 8th April 2022, that is, roughly one month or less from discovering the attachment. The trial Judge’s conclusion that there was a two-year delay from the alleged time of attachment (October 2021) until the filing of the Notice of Claim (April 2022) is simply not borne by the record. Even if the property was attached in October 2021, the difference is about six months, not two years and the Appellant showed by affidavit that it had no prior notice. We have noted from the Record of Appeal that the Respondent in its Affidavit in Dispute did not dispute the disposition of the Claimant/Appellant that it filed its Notice of Claim just as it became aware of the execution steps taken by Respondents. Consequently, we find nothing wrong with the Notice of Claim filed by Appellant to assert its interest in the properties targeted by the Execution-Creditor/Respondent.” His Lordship on the question of whether time runs against a Claimant said thus, “Furthermore, it is trite law that, so far as a party is not aware of the attachment, the clock cannot begin to run against that party in the context of an execution they are not party to……..The rightful owner should not be penalized for delay if the circumstances show it was ignorant of the attachment. We conclude that the learned trial judge improperly disregard the evidence showing the Appellant’s promptness in filing its Notice of Claim upon discovering the attachment…. ”
Are Interpleader proceedings Final or Interlocutory
This question is essential to determine because of inter alia the issue of appeal and when same can be filed. The matter is final if it finally determines the rights of the parties. If it does not fully determine the rights of the parties, then it is interlocutory. Georgina Wood CJ in the case of Republic v High Court (Fast Track Division) Accra; Ex parte State Housing Co. Ltd (No. 2) (Koranteng Amoako Interested Party)[39] delivered herself as follows on this subject, “In our view….an interlocutory order has also been defined in Halsbury’s Laws of England (4th ed.), Vol 26 paragraph 560 as: “An order which does not deal with the final rights of the parties, but either (1) is made before judgment and gives no final decision on the matter in dispute but is merely on a matter of procedure; or (2) is made after judgment, and merely directs how the declarations of rights already given in the final judgment are to be worked out, is termed ‘interlocutory”. In the case of Network Computer System Ltd v Intelsat Global Sales and Marketing Limited[40] also settled that proceedings as determined by the trial court were interlocutory which did not finally dispose of the rights of the parties.” In Agoti v Agbenoku[41] the Court of Appeal declared that a decision on an interpleader summons is interlocutory since it arises out of some other matter.” Further in Ebenezer Darkwa and Another v Adonteng Community Bank, the apex court held thus, “…Moreover, a ruling, having arisen out of proceedings relating to an execution process can only be interlocutory. While interpleader proceedings may determine the rights of the parties in relation to the ownership of the items seized in execution, such proceedings have been held to be interlocutory.”
Earlier in the same case, the Court of Appeal had taken a position thus, “the proceedings which took place in the interpleader proceedings did not end up in the trial of an issue between the parties; it remained an application for relief brought by the Registrar, although the ownership of the attached goods was pronounced upon when counsel for the Appellant declared himself to be satisfied that the properties did not belong to the judgment debtor but to the Respondent…”
For purposes of appeals from the High Court, the timelines for appeals in interlocutory matters differ from the time for appeal in final judgments. In interlocutory matters, the law allows twenty-one days to appeal[42], while for final judgments the law allows three months[43]. It is worthy of note that while with final appeals, there is the opportunity to seek an extension of time within which to appeal, save that the application for extension must be filed within the first three months,[44] there is no opportunity for extension of time in interlocutory appeals.
Appeals are creatures of statute and hence to enjoy the benefit of same, one must comply with the requirements of the statute creating the said appeals.[45]
Having established that interpleader proceedings are interlocutory in nature, one can take notice that the time for appeal cannot be three months since it is not a final judgment. The Author suggests that the time for appeal in interpleader actions although interlocutory is also not twenty-one days. Oder 44 rule 13(5) provides that the number of days within which to appeal under that rule shall be fourteen days. The law is that where there is a general rule and a specific rule on a matter, it is the specific rule that applies. This position is expressed in the latin term specialibus generalia non derogant is trite learning and has been applied in several decisions including the case of Bonney & 4174 Others v GPHA[46].
The Roles of Lawyers in Execution
It is not for nothing that parties engage the services of Counsel in their litigation. Counsel must provide guidance on the law and sometimes the fact in proceeding to execution. Lawyers before proceeding to levy execution against properties must also be sure that due diligence has been conducted to ascertain the true ownership of the property. Before a client tells a lawyer to attach a property, the lawyer must ask before proceeding whether the property being proposed for attachment is attachable. Among others, whether the property belongs to the judgment debtor against whom the victorious party is proceeding, whether there is anything that prohibits the attachment of the property, if the property is subject to registration whether same has been done. All these are signals that should weigh on the mind of counsel. For instance, it is not all property of a person that can be attached.
The law prohibits the attachments of certain nature of properties like pension funds. The National Pension Authority Act 2008 provides in this regard that, “The accrued benefits of a member in an occupational pension shall not be attached in execution of a judgment debt or be used as a charge, pledge, lien, or be transferred, assigned or alienated by or on behalf of any of the member.”[47] Any such is contrary to law and therefore void and of no effect whatsoever.[48]
Lawyers it is submitted must provide guidance and counsel to where to ascertain the true ownership of the properties that ought to be attached. This is part of the due diligence required by law. To ascertain ownership of vehicles, it would be appropriate to conduct searches at the Driver Vehicle and Licences Authority to ascertain the current owner. The Form C which is captioned, “Driver and Vehicle Licensing Authority (DVLA) Ghana Application Form to Transfer Ownership of Motor Vehicle” provides a source of ascertaining ownership of a vehicle. In the case of Big Boys Limited v Access Bank, the Court said in this regard thus, “I must say that in our jurisdiction, the best and surest way to establish ownership of a vehicle of whatever nature is the production of registration documents.” For Landed properties one could conduct a search at the Lands Commission to ascertain who is the owner and whether same is encumbered.
Lands Commission is the body that keeps the records of all ownership details of landed properties. To ascertain whether there are encumbrances on some properties, regard may also be had to the Office of the Registrar of Companies under the Companies Act, 2019 (Act 992) and/or the Collateral Registry under the Borrowers and Lenders Act, 2020 (Act 1052), where charges created on properties are required to be registered by law, for encumbrances to be noted.
Role of their Lordships
When matters under Order 44 and 48 are conducted and the Claimant succeeds, the Author suggests that the Court should be able to appreciate that in addition to the cost in prosecuting the claim, the Claimant might have suffered some losses. Usually, the costs the courts award after the proceedings are not enough even to cater for the legal fees of Counsel with the conduct of the case. In the case of BF Petroleum v Blue Soil, Bayport Savings and Loans Plc as Claimant, the Court of Appeal awarded costs of GHS10,000.00 to the Claimant/Appellant. That cost is far below what the Claimant spent in prosecuting the claim before the court below, much more the appeal. Obviously to recover the costs incurred in addition to damage and compensation, the Claimant may consider commencing a fresh action as happened in the case of Big Boys v Access Bank, Mabsout v Joe Hansen as indicated in BF Petroleum v Bluesoil Limited and Bayport Savings and Loans PLC.
Most, if not all judges have been practitioners before, and so cannot be impervious and oblivious to what goes into the prosecution of such claims. Their Lordships it is submitted have reasonable idea of the costs, damages and compensation that these proceedings warrant, which may go a long way to avoid multiplicity of suits, which is one of the fundamental guidelines of the rules of Court.
Recommendations
- The rules of Court Committee can look at the rules and allow for Claimants to be able to prove damages after the proceedings in Order 44 or Order 48 are over. Practitioners and other stakeholders cannot be oblivious of the fact that in prosecuting claims in this manner, expenses (filing fees, legal fees etc) are made, feelings are injured for which compensation must be given
- Their Lordships can also suo moto consider awarding damages to the Claimant after successful claim if proved. Once the Claimant is awarded damages that caters for his or her losses, there would be no need to commence a fresh action. Order 1(1)(2) of the High Court Civil Procedure Rules provides that, “These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expenses, and ensure that as far as possible, all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.”It is suggested by the author that even without amending the rules to accommodate provisions for the award of damages, a bold construction of the rules can allow a party, if the party is able to prove by credible evidence. Indeed the rules provide under the Powers of the Court in these proceedings that,…..the Court may order that any issue between the claimants and execution creditor be stated and tried and may direct which of them is to be plaintiff and which defendant.”[49] This implies that if the issue of damages become an issue in dispute, the court can make a determination.
Conclusion
In conclusion, it is suggested that at all cost, Judgment or Execution Creditors must be excited about their judgments, but in doing so one must not be in that orgasmic mode as to lose control of oneself to levy execution against a property of a third party who had nothing to the suit. One must be careful to exercise due diligence to proceed against the Judgment Debtor, ensure that the property being attached in execution belongs to the judgment debtor without more.
[1] George Bernard Shaw is a Ghanaian lawyer known for his work in civil rights and litigation, particularly his representation of Yaw Asante Agyekum, a man wrongfully imprisoned for years
[2] https://www.instagram.com/reel/DKhcSp3qj5G/
[3] Suit No. H2/05/2021 Judgment dated 5th June 2025 coram Janapare Bartels Kodwo J.A. Presiding, Stephen Oppong, Aboagye Tandoh J.J.A
[4] Rule 27 of the Court of Appeal Rules, 1997 (C.I. 19) as amended.
[5] Order 41 (7) of the High Court (Civil Procedure) Rules, 2004 (C.I 47)
[6] Order 28 (4) sub rules (1) and (2) of the District Court Rules, 2009 (C.I 59)
[7] Order 43 rule 1(1) of the High Court (Civil Procedure) Rules 2004 (C.I 47)
[8] Order 44 rule (2)(4) of the High Court (Civil Procedure) Rules, 2004 (C.I 47)
[9] https://ghanalawhub.com/understanding-the-ghanaian-law-on-garnishees/
[10] Order 47 (1) of the High Court (Civil Procedure) Rules, 2004 (C.I 47)
[11] Order 47 rule 6(1) C.I 47
[12] https://www.gurahsampsonlaw.com/garnisheeing-joint-bank-accounts-the-ghanaian-law-perspective/
[13] Order 45(1)(1) of the High Court (Civil Procedure) Rules 2004 (C.I 47)
[14] Order 45(1)(2) of the High Court (Civil Procedure) Rules 2004 (C.I 47)
[15] Order 45 (4)(1) of the High Court Civil Procedure Rules 2004 (C.I 47)
[16] [2022] 177 G.M.J 495 SC
[17] Order 44 rule 12(2) of the High Court Civil Procedure Rules, 2004 (C.I 47)
[18] Order 44 rule 12(5) of the High Court (Civil Procedure Rules), 2004 (C.I 47)
[19] Order 44 rule 12 (7) of the High Court (Civil Procedure Rules), 2004 (C.I 47)
[20] Order 44 rule 12 (4) of the High Court (Civil Procedure) Rules), 2004 (C.I 47)
[21] Order 44 rule 13(5) of the High Court (Civil Procedure) Rules, 2004, (C.I. 47)
[22] Civil Motion J8/03/2018 judgment delivered on
[23] Former Deputy Attorney General, Former and the First Special Prosecutor, a man known and celebrated for his Citizen Vigilante role
[24] (2013-2014) 1 SCGLR 506.
[25] Coram Benin JSC as a single judge
[26] [1961] GLR 599
[27] TLP-CA-2025-04. Suit No. H1/215/2024 judgment delivered on 19th June 2025
[28] Coram Suurbaareh J.A (Presiding), Aryene Mrs J.A and Owusu-Dapaa J.A.
[29] [1968] GLR 30
[30] [2022] 177 G.M.J 1 SC
[31] 2022] 177 G.M.J 495 SC
[32] Coram Pwamang JSC (Presiding), Dordzie (Mrs) JSC, Torkornoo (Mrs) JSC, Honyenuga JSC, Kulendi JSC
[33] TLP/CA/2025/04 Court of Appeal, coram Suurbaareh J.A (Presiding), Aryene (Mrs) JA, Owusu-Dapaa JA.
[34] Francisca Serwaa Boateng is a senior lawyer in Ghana and a prolific author
[35] [1968] GLR 114
[36] [1987-88] GLR 1
[37] TLP/CA/2025/04 Court of Appeal, coram Suurbaareh J.A (Presiding), Aryene (Mrs) JA, Owusu-Dapaa JA
[38] [1968] GLR 30
[39] [2009] SCGLR 185
[40] [2012] 1 SCGLR 218 @ 226
[41] [1978] GLR CA
[42] Rules 9 (1)(a) of the Court of Appeal Rules, 1997 (C.I 19)
[43] Rule 9(a)(b) of the Court of Appeal Rules 1997 (C.I 19)
[44] Rule 9(4) of the Court of Appeal Rules 1997 (CI 19)
[45] Frimpong v Poku [1963] 2GLR 1 SC
[46] [2014] 75 G.M.J 76 SC
[47] Section 102 (1) of the National Pensions Authority Act, 2008 (Act 766)
[48] Section 102 (2) of the National Pensions Authority Act, 2008 (Act 766)
[49] Order 44 rule 13(1)(b) of C.I 47
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