Agricultural Development Bank Vrs Amartey (76/2003.) [2004] GHACA 1 (12 November 2004);

Flynote: 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL SITTING ON THE

12TH DAY OF NOVEMBER, 2004 BEFORE

OWUSU, JA, PIESARE AND ANIN-YEBOAH, JJA.

 

CM. 76/2003.

 

AGRICULTURAL  DEVELOPMENT BANK   …   PLT/J/C/RESPT.

                V E R S U S

LEONEL A. AMARTEY                                       …    J/D/RESPT

                 AND

PEACE ESSINU KLUDJESON                         …    CLAIMANT/APPT/APPL’T

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                                                    R  U  L  I  N  G

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ANIN-YEBOAH, JA:-  The plaintiff/Judgment-Creditor/Respondent {hereinafter called the Respondent} granted a facility to the Defendant/Judgment-Debtor/Respondent {hereinafter called the Judgment-Debtor}.  It appears from the records in this application that the Judgment-Debtor failed to repay the loan granted to him by the Respondent.

An action was commenced against the Judgment Debtor at the instance of the Respondent for the recovery of the outstanding balance which stood at ¢99,608,413.66.  The facts show that the facility was secured with a property at Accra described as H/No. C. 204/3 Osofo Street, Asylum Down, Adabraka.

         Judgment was entered against the Judgment-Debtor for the recovery of ¢99,608,418,66.  As the judgment debt was not satisfied, the Respondent as judgment-creditor proceeded to levy execution against the security described above.  Upon the attachment of the said property, the Claimant/appellant/Applicant {hereinafter referred as the Applicant} interpleaded.  The interpleader summons was listed before Mrs. Justice Akoto Bamfo at the High Court, Accra for directions after the claim of the Applicant had been disputed on the grounds that she had no interest in the property, the subject matter of the execution.  When the summons came before the judge, she made an order on 18/1/99 directing the parties in the summons to file their ‘respective documents and other documents appertaining to the issue within ten days.’

          As could be seen from the ruling of the court on 3/5/99, this order expired without the Applicant filing anything in the trial court to demonstrate that she had interest in the attached property.

According to the ruling of 3/5/99 two adjournments were granted by the court to enable the Applicant to file her documents of title; but nothing was filed till the judge proceeded to give her ruling on 3/5/99.  The trial judge proceeded to make the formal order which was the subject of complaint in this application as follows:- 

                   “I do not therefore feel able to grant the application.  Having failed

                    to comply with the order of the court made after appearance, it is

                    ordered that the Claimant and all persons claiming under her be forever

                    barred against the judgment-Creditor.”

       In effect this order paved way for execution to proceed accordingly.  However, execution could not proceed as expected as a motion for stay of execution was filed and listed before Ofoe J, at the High Court, Accra. The court on 20/2/01 after hearing arguments dismissed the application for stay of execution.  The Applicant repeated her application before this court.  The various exhibits for consideration in this application show that several motions for relistment were filed by the Applicant upon striking out of the motions.  To appreciate the reasons for this ruling one must know what exactly the applicant is praying this court for.  The body of the motion before this court states as follows:-

              “……….for an order for a stay of execution of the trial judgment of

                             the High Court, Accra, herein dated the 2nd day of September

                            1998 pending the hearing and determination of the Claimant’s

                            appeal herein filed on the 11th day of May 1999 against the

                            Ruling dated the 3rd day of May 1999 dismissing her interpleader

                            Claim herein.”

             It appears, however, from the records, to be precise Exhibit “PEKI” exhibited by the Applicant herself that the ruling in the interpleader suit against which the appeal was lodged by the Applicant, was delivered by Mrs. Justice Akoto-Bamfo on Monday 5th of May 1999; which is contrary to what is stated in the motion paper.  Since there is only one appeal lodged against the interpleader suit, the discrepancies in the date is not material for the determination of this application.  The ruling of Justice Akoto-Bamfo was indeed delivered on 3rd of May 1999 and not the 5th of May 1999 as stated in the Notice of Appeal.

           It is clear from the body of the motion under consideration that the Applicant is asking for a stay of execution of the judgment of the trial court dated 2nd day of September 1998.  The various exhibits annexed by both parties to this application does not show that the Applicant lodged an appeal against the judgment of the trial court, delivered on the 2nd day of September 1998, which judgment adjudged the Respondent bank to recover the amount of ¢99,608,413.66 from the alleged husband of the Applicant one LEONEL AMANOR AMARTEY.  She indeed did not demonstrate that she has ever filed an appeal against that judgment in the case of which she was not a party.  In course of arguing the motion, learned counsel for the Applicant out of candour conceded that no appeal was lodged by the Applicant in the suit which adjudged the Respondent Bank to recover the ¢99,608,413.66.  It is also clear that the suit was not joined by the Applicant.  It was only after judgment and in course of execution that the Applicant interpleaded.  The appeal which was filed by the applicant was against the interpleader proceedings and not the substantive suit which culminated in the interpleader proceedings.  The question is this:  Can the Applicant who has not lodged any appeal against a judgment of which he was not a party pray the Court of Appeal to stay execution of the said judgment?  I think that the Applicant cannot do so.  The applicant can only apply for stay of execution before this court if she had filed an appeal against the decision of the trial court and filed a motion for stay of execution before the trial court and upon refusal of the motion by the trial court she can repeat the application for stay in this court. Such repeated application would be a fresh application.  See REPUBLIC V. COMMITTEE OF INQUUIRY (R.T. BRISCOE (GH) LTD; EX PARTE R.T. BRISCOE (GH) [1976] 1 GLR 166 CA and JOSEPH V. JEBELLE [1963] 1 GLR 387 SC.  The situation in this matter is, however, different.  The Applicant filed an appeal against the ruling of Mrs. Justice Akoto-Bamfo who had struck out the interpleader proceedings.  She appealed against the ruling.  The mere filing of an interpleader stays execution of the judgment by operation of law.  The rights of the claimant in any interpleader proceeding must be determined before execution could proceed.  A short passage from Halsburys Laws of England [4th edition] page 273 states the position of the law is follows:

                          “An order for an interpleader issue has the effect of a stay….”

 

 

Against this proposition of law are listed the cases of ANGELL V. BADDELEY [877] 3 Ex D 49 CA  and RE FORD, EX PARTE FORD [1886] 18 QBD 369 as authorities for the above proposition of law.  In my opinion, the pendency of the interpleader before the High Court stayed execution of the judgment adjudging the Respondent to recover the judgment debt of ¢99,608,413.66 from Leonel Amanor Amartey, even though the Applicant herein was never a party to the suit but a claimant only.  However, the Applicant was ordered by the trial court in the interpleader proceedings to file all documents relating to her interest in the property which was the subject of the interpleader.  This she refused to do so despite the fact that the trial judge adjourned the proceedings on two occasions at her instance even though the time limited for filing the documents had already ran out.  I think the conduct of the Applicant compelled the trial judge to strike out the interpleader and made a consequential order which to me was nothing more than the exercise of her jurisdiction under Order 57 Rule 10 of the Supreme [High] Court Civil Procedure Rules LN 140 A of 194.

          As said earlier, Applicant’s appeal against the ruling in the interlocutory proceedings was followed with a motion for stay of execution before Ofoe J.  The motion for stay was dismissed and this application is in my view a fresh application even though she is repeating same before this Appellate Court.  In my opinion, as the trial judge never had the opportunity to go into the merits of the interpleader proceedings by virtue of the striking out of same for non-compliance with her orders by the applicant, the Applicant's attack of the ruling ought to have been on the exercise of the trial judge's discretion.

           Before us, no effort was made to demonstrate that the judge’s discretion was unfair and that it was not warranted by the circumstances of the occasion.  The procedure  under which the learned trial judge dealt with the interpleader proceedings was not questioned by the Applicant before us at the Appellate Court.

As no attempt was made to show that there was the possibility of the appeal succeeding or that the special circumstances of the case warrant stay or that the appeal would be rendered nugatory should this application be refused, this court ought to dismiss the application to pave way for execution of the judgment dated 2nd day of September 1998    to  proceed accordingly.  The motion is therefore dismissed. 

 

 

                                                                                                     ANIN-YEBOAH

                                                                                                 JUSTICE OF APPEAL

 

 

 

I agree.                                                                                                      E.K. PIESARE

                                                                                                 JUSTICE OF APPEAL

 

 

I also agree.                                                                                    R.C. OWUSU 

                                                                                                  JUSTICE OF APPEAL      

 

                   

COUNSEL  -  W.A.N. ADUMUA BOSSMAN FOR APPLICANT.

                         S.N. KUDJOE FOR RESPONDENT.

                         S.M. ASANTE FOR J/DEBTOR/RESPONDENT.

 

 

 

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