– “"Touch not my anointed" (assets) and "do my prophets" (property) no harm! – A warning to execution creditors
By Frederick Gurah SAMPSON ESQ
The goal of each party involved in civil litigation is to secure a favorable ruling. Receiving a positive judgment, therefore, brings a sense of happiness and thrill, particularly when it follows an extended trial.
It was the knowledgeable George Bernard Shaw[1], who explained his decision regarding Yaw Asante Agyekum[2]in the Court of Appeal case of Yaw Asante Agyekum versus the Republic[3] as ‘orgasmic’ and rightly so.
The ‘orgasmic’emotions following the acquisition of judgments have, in certain instances, caused several Execution Creditors, either as Execution Creditors themselves or through their attorneys, to seize assets that they should not have seized. Once a judgment is obtained, the subsequent step is the enforcement of that judgment, following the seven-day automatic stay on enforcement.[4].
The procedure begins with the submission of a Judgment Entry in the Circuit Court and Superior Courts.[5]or Official Order from the District Court[6]as the situation requires. The enforcement of a judgment refers to the actions taken by the winning party in a lawsuit or the judgment creditor to obtain the benefits awarded by the judgment.
There are various methods for enforcing judgments or orders, such as garnishments, writ of possession, writ offieri facias (fi.fa) among others. Usually, garnishees do not carry a high risk of incorrect attachments, but attachment byfieri faciasIndeed, when assigning characteristics, one needs to be cautious to avoid causing additional unforeseen expenses and harms.
In this paper, the Author analyzes the legal provisions regarding the seizure of assets during the enforcement of court decisions in civil cases, the steps a Judgment Creditor must take prior to seizure, improper seizures, what occurs if a party seizes incorrect property, and the remedies accessible to an affected party (whose property has been seized illegally), whether a party who prevails in an Interpleader isestoppedfrom the point of starting a legal proceeding, the issue of whether time works against the person making the claim and how time is calculated in this context.
The writer will offer suggestions and ultimately argue that a successful claimant is entitled to initiate a new lawsuit for particular remedies that were not requested during the interpleader process, against the enforcement creditor who improperly seizes property without performing proper investigation. The writer will achieve this by examining relevant case law and legal provisions related to the topic.
Ways of carrying out legal procedures in Ghana
The legal system in Ghana acknowledges various methods of enforcement within civil procedures. The High Court (Civil Procedure) Rules, 2004 (C.I 47) outlines the following generally: "Subject to these Rules, a judgment or order for the payment of money, excluding a judgment or order for payment into court, may be enforced through one or more of the following means (a) writ of"fieri facias; (b) enforcement proceedings; (c) a charge order; (d) the appointment of a receiver; (e) in cases where rule 5 is applicable, an order for imprisonment or a writ of seizure.[7]
If the judgment or order relates to the possession of immovable property, the law states that, "Provided these Rules are followed, a judgment or order for the recovery of possession of immovable property can be carried out through one or more of the following methods: (a) a writ of possession; (b) in situations where rule 5 is applicable, an order of commitment or a writ of sequestration." These and numerous other forms of enforcement are recognized by the law.
A creditor who secures a judgment against another party (known as the judgment debtor) is therefore allowed to employ any legal methods of enforcement to collect the benefits of the judgment. The appropriate method of enforcement is chosen by the creditor, depending on the type of judgment obtained, with the exception that the law requires movable assets to be seized first before addressing immovable property.
Rule 2(3) of Order 44 in the High Court (Civil Procedure) Rules 2004 (C.I 47) states, “The immovable property of a judgment debtor cannot be seized during enforcement if the judgment debtor demonstrates that there is adequate movable property within the jurisdiction to cover the judgment or order along with the costs.” It is only when the movable assets are insufficient to meet the judgment debt that the immovable property will be subject to seizure.
The law states, "When enforcement is carried out against immovable property, the execution writ must include a note indicating that there was insufficient movable property to cover the judgment debt."[8]For the sake of this paper, the Author chooses to examine methods of contestingfi.faattachments and levies, and the issues that follow.
Challenging Attachments.
Garnishments as a method of enforcing judgments
In Garnishees, the law permits a third party or any individual with a claim on the garnished funds to file a claim and contest the seizure. A Garnishee proceeding refers to the process in which a Judgment Creditor seeks payment of a judgment debt from sums held in the name of a Judgment Debtor by a third party, typically a bank or another person.
The regulations state in this context that, "If an individual mentioned in this Order as 'the judgment creditor' has secured a judgment or order for the payment of money from another person referred to as 'the judgment debtor,' and the judgment or order is not for the payment of money into court, and a different person within the jurisdiction, known as 'the garnishee,' owes money to the judgment debtor, the Court may, subject to the provisions of this Order and any applicable legislation, direct the garnishee to pay the judgment creditor the amount of any debt owed by the garnishee to the judgment debtor, or as much of it as is necessary to cover that judgment debt or order along with the costs of the garnishee proceedings." For the purposes of this paper, the procedures for applying for a garnishee are not relevant, as they have already been addressed by the Author in a previous article.[9]
The portion of the garnishment process that is pertinent to this paper refers to the sections titled 'Dispute of Liability by Garnishee' and 'Claims of Third Parties'. The 'Dispute of Liability by Garnishee' indicates that the garnishee is not obligated to the judgment debtor, and thus the funds held by the garnisheeprima faciecannot be included in the execution process, as it is the debt that serves as the foundation for the legal actions.[10]
Under Order 47, Rule 5 of the High Court (Civil Procedure) Rules, 2004 (C.I 47), it states that, "If, after further review of the case, the garnishee contests the obligation to pay the debt claimed to be owed by the garnishee to the judgment debtor, the Court may quickly resolve the issue or direct that any essential question regarding the garnishee's liability be addressed in the same way as issues in a legal action." This clause in Order 47, Rule 5 gives individuals who are believed to hold money on behalf of the Judgment Debtor a chance to challenge the liability, if applicable.
For example, if the money held by the garnishee belongs to a third party but is being kept by the judgment debtor in trust, or if there is a 'lien’Regarding the mentioned funds before the judgment. There are cases where, despite the funds being held by the garnishee, they have been utilized as collateral for a loan facility with the garnishee.
The regulations also include provisions regarding 'Claims from Third Parties' under Order 47, Rule 6, which states, "If during garnishment proceedings, the Court becomes aware that another individual, apart from the judgment debtor, is or asserts to be entitled to the debt being sought for attachment, or holds or claims to have a charge or lien on it, the Court may direct that individual to appear before the Court and explain the nature of the claim along with specific details."[11]The court will decide if the claim has been filed and, if it has, the garnishee will be freed from the attachment.
Rule 6(2) of Order 47 states that, "Following the hearing of any individual who appears before the Court in accordance with an order under subrule (1), the Court has the authority to quickly resolve the matter at hand between the claimants or issue any order it deems fair, including a directive that any question or issue essential for assessing the validity of another party's claim, as referenced in subrule (1), be addressed in any way that a question or issue in a legal proceeding can be handled."
A statement made by a third party might suggest that, even if the funds intended for seizure are held by the garnishee under the judgment debtor's name, the judgment debtor is merely a nominal party, with the actual ownership resting with a third party who is not the judgment debtor. Alternatively, the funds in question could be in a joint account where the third party is the owner or a co-owner.
Whether a Joint Account can be subject to garnishment also drew the attention of the current Author in a previous publication.[12]and does not need to be repeated, but it is important to highlight that, according to the Author, Joint Accounts can be subject to garnishment and seizure to satisfy a judgment debt, provided there is a chance for a joint account holder who is not the judgment debtor to contest and object to the seizure. In such a scenario, only the portion of the Joint Account that belongs to the judgment debtor is subject to attachment. The above discussion illustrates that courts are concerned with making sure that, even in garnishment proceedings, the funds being seized belong exclusively to the judgment debtor and no other party.
Fieri Facias (fi. fa) as a method of Execution and Obstacles to the Attachment
Regarding writ of fieri facias (fi.fa), it refers to the procedure of seizing assets, whether movable or immovable, of a judgment debtor to satisfy a judgment debt. A judgment debtor's vehicle, equipment, and land property, among others, can be seized, a minimum price set, and then sold to settle the judgment debt.
The regulations state that, "A judgment or decree regarding the payment of funds can be executed through a writ of fieri facias."[13]If a writ of fieri facias is issued, it must be carried out by taking and selling the debtor's property enough to cover the judgment debt along with post-judgment interest at the correct rate until the debt is paid, as well as the expenses involved in the execution.[14]
When a property is seized by writ offieri facias, it is taken from the judgment debtor until it is sold or the judgment debt is paid. According to the rules, "Subject to other parts of this Order and to provisions of any other laws, a writ offieri faciasshall come into force (a) concerning any movable property in the control of the judgment debtor through physical seizure; the property being held under the Registrar's care until it is sold;…..(d) concerning immovable property or any interest in such property, whether legally or equitably, by a written order preventing the judgment debtor from transferring the property or any part of it through sale, gift, or any other method, and barring all individuals from acquiring it through purchase, gift, or otherwise; and the Registrar may also, as directed by the Court, take and maintain actual possession of the property.[15]
The law allows an individual who asserts a claim to a property that has been seized in afi. famoving forward to contest the attachment and present their claim within it. The High Court (Civil Procedure) Rules 2004, (C.I 47) outlines two methods for challenging it. These two methods are the Registrar's Interpleader and the Stakeholder's Interpleader, as specified in Order 44 and Order 48 of the High Court (Civil Procedure) Rules. This was recognized in the case of Ebenezer Darkwa and Another v Adonteng Community Bank.[16]to which the writer will return.
According to Order 44, Rule 12 of C.I. 47, it states, "A person who asserts a claim regarding or in connection with property seized under a court order, or property that is to be seized through legal process, or concerning the proceeds or value of such property, must notify the Registrar and include a statement of the individual's address for service in the notice." This allows the person claiming an interest in the property to establish their rights over it. Under the procedures outlined in Order 44, Rule 12, the individual making a claim on the attached property or its proceeds or value (Claimant) may submit a notice of claim detailing the foundation of their interest or claim.
The Claim Notice is delivered to the Enforcement Creditor, who must either accept the claim or challenge it. According to the regulations, "Upon receiving a claim submitted under subrule (1), the Registrar must immediately inform the enforcement creditor, who must notify the Registrar within four days of receiving the notice whether the enforcement creditor accepts or contests the claim."[17]
If the Execution Creditor acknowledges the claim, "...the Registrar must immediately relinquish control of the claimed property and, after doing so, may request the Court to issue an order preventing any legal action against the Registrar concerning the seizure of that property."[18]Once the claim is submitted for approval, the Enforcement creditor will only be responsible to the Registrar for the fees and costs incurred by the Registrar prior to receiving that notice.[19]
If the Enforcement Creditor challenges the claim, the Enforcement Creditor will submit a Notice of Dispute and deliver it to the Claimant. According to the Author's perspective, submitting a Notice of Dispute signifies that disputes have been raised regarding the ownership of the seized property or the validity of the seizure, which the court must resolve. The regulations state that, "An application for relief by the Registrar under this rule shall be"ex parteto the court requesting an order that the claimant and the enforcement creditor must appear before the Court on a date mentioned in the order to resolve their dispute.[20]
In reality, once the Enforcement Creditor submits the Notice of Dispute, the next step involves the Claimant presenting an Affidavit of Interest, detailing and outlining the foundation of their interest along with supporting documents. Following the delivery of the Affidavit of Interest to the Enforcement Creditor, the latter also submits an Affidavit of Dispute, including facts and evidence that challenge the claim or provide a rationale for the attachment, and serves this on the Claimant. After both Affidavits and attached exhibits have been exchanged, the matter is determined regarding the ownership of the property or the validity of the attachment.
The Court has the option to decide the matter based on the affidavit evidence submitted, or to accept witness statements and question the witnesses in the witness box, where the parties are examined by their respective attorneys or the parties themselves, depending on the situation. Order 44, Rule 13 states that, "If during the hearing of proceedings initiated under an order made under Rule 12(4), all individuals who have adverse claims to the property in dispute, referred to in this rule as 'the claimants,' appear, the Court may (a) quickly resolve the issue between the claimant and the execution creditor and issue an order accordingly on such terms as are fair; or (b) direct that any issue between the claimants and the execution creditor be outlined and tried, and may specify which of them will act as the plaintiff and which as the defendant."
The court will decide the matter during the proceedings following the hearing. If the court rules in favor of the plaintiff, stating that the property belongs to them, the property will be released from seizure. However, if the plaintiff fails to establish their claim, the Notice of Claim will be rejected, and the enforcement process will continue. Any individual affected has fourteen days to submit an appeal.[21]
In the matter of Martin Alamisi Amidu and Others v Attorney-General, Waterville and Anator Holdings,[22]The Plaintiff Martin Alamisi Amidu[23]Judgment was secured against the Defendant. During enforcement, some assets of the Defendant company were seized.
The Supreme Court addressed the extent of Order 44 Rule 12, stating, “Rule 12 mandates that a claimant submit their claim through a notice, and it also obliges the court to assess the claim if the execution creditor contests it. It is logical to argue that the court cannot decide solely based on the claim notice; it necessitates some form of evidence, either by affidavit (if it chooses to hold a summary hearing under rule 13(1)(a)) or oral testimony if it refers the matter to a full trial in complex situations, as outlined in rule 13(1)(b).”
Therefore, the court is obligated to consider both the notice and the affidavit of interest submitted by a claimant when evaluating their claim. Hence, if a claimant does not mention their right or interest in certain property in the notice of claim but does so in the affidavit of interest, it is not considered a critical error or omission….” In this instance, Anator Holding Company Limited and Anator Quarry Company Limited asserted their interest in the properties that were seized during the enforcement of the judgment against Alfred Agbesi Woyome.
The Attorney-General was referred to as the Judgment Creditor and recipient of the judgment that was issued in favor of the Plaintiff in the case of Amidu (No. 3) v Attorney-General; Waterville Holding (BVI) Ltd. & Woyome (No 2)[24]. While attempting to enforce the judgment against Woyome, the party entitled to the judgment seized two properties, specifically house numbers 260 and 267 located in Adjiriganor, which were claimed to belong to the debtor, Woyome.
The attachment also included Plant and Machinery owned by Anator Holding Company and its subsidiary, Anator Quarry Company. Upon learning about the seizure of these assets, UT Bank (In Receivership), who was the Claimant in the case, submitted a claim for interest in certain of the seized properties, specifically House Numbers 260 and 267. In essence, the Claimant, UT Bank (In Receivership), asserted a claim to these properties. In response to this claim, the judgment creditor issued a notice of disagreement.
The Applicant submitted an affidavit of interest, asserting that the two properties numbered 260 and 267 were purchased from the judgment debtor (Woyome), while the remaining properties were pledged by the judgment debtor as security for loans obtained from the Applicant. The Applicant presented the title documents confirming the acquisition of House Numbers 260 and 267 in the transaction with the judgment debtor. The Judgment Creditor challenged this claim, arguing that the Applicant was acting in collusion with the judgment debtor and that the alleged sale of the two properties (House Numbers 260 and 267) was a fraudulent arrangement.
The Court stated that the claimant had the responsibility to establish its claim, after which the obligation would move to the judgment creditor. The Court determined that the foundation of the Claimants' assertion was without merit. Upon examining the affidavit and evidence submitted to the Court, it concluded that they were not acceptable.
The Court, among other things, stated, “… I am certain that the Claimant was helping its customers, the judgment debtor in this case, to conceal the identity of his Trassaco Valley properties under the guise of legality by asserting that it had bought them.” The Court further, upon examining the evidence, concluded, “… I am convinced that the ongoing possession of these properties by the judgment debtor and/or his representatives long after the supposed sale was not an isolated action, but rather part of a well-planned scheme between the Claimant and the judgment debtor to use the fabricated sale documents to protect the assets of the judgment debtor…”
The Court stated, “... When all these pieces of evidence are considered together, I am convinced that the judgment debtor never gave up his ownership of, and never sold properties numbered 260 and 267, even though documents were presented as proof of the sale. The Claimant was aware of this and actively and willingly helped the judgment debtor in this scheme…” In the Court's view, the Claimant aimed to deceive the court into thinking that the claimant had a stake in the seized properties.
The Supreme Court[25]Speaking with the commendable legal expertise of Bennin JSC, issuing a warning to claimants similar to those in that case, he stated, “The Court cannot serve as a tool for deception. In one instance, the Bank claims the properties were sold to them by the judgment debtor. In another instance, the judgment debtor asserts that he never pledged the two houses except as security for the loan. Thus, the parties have adopted conflicting statements so that regardless of which account the court accepts, the properties are protected from enforcement.”
However, the court's belief and conviction is that the properties were neither sold nor pledged as security for the loan. The entire arrangement is a fraud." In rejecting the Claimant's claim, the Supreme Court stated, "...In essence, I determine that any properties listed in exhibit 5 and 5i that are proven to be owned by the judgment debtor are free from any encumbrance or charge and can be used to satisfy the judgment against him. I reject the Claimant's application and dismiss it accordingly."
The lesson here is that simply asserting ownership of property seized through legal enforcement does not automatically lead to its release. The person making the claim must provide evidence to show they have a legitimate interest in the property, and this evidence must meet all legal standards set by law. If this is not achieved, the claim will be rejected, as occurred in the case of Martin Alamisi Amidu & Others v Attorney-General, Waterville and Anator Holdings.
The law of improper seizure and interpleader
The body of law related to this topic is abundant with court rulings. There is no scarcity of legal reasoning in this area of the law. The Court has had many opportunities to express opinions on these issues, aiming to clarify the law and convey a clear message to Enforcement Creditors to exercise caution when seizing assets in the execution of judgment debts.
In the matter of Afari v Asante,[26]The renowned Ghanaian lawyer Ollennu J (as he was known at the time) addressed an interpleader action as early as 1961. The circumstances of this case involved a person named Kwame Amponsah Darko, the original owner of a farm that was the focus of the lawsuit, who sold the property to the plaintiff in 1950. A year later, following a judgment obtained against Kwame Amponsah Darko, the farms were seized and auctioned off under a writ.fi.faand acquired by a specific Kwadjo Duku, who subsequently sold it to the Defendant in 1958. The Plaintiff initiated a legal proceeding for a declaration of ownership and for damages before the South Akim-Abuakwa Local Court but was unsuccessful. He then successfully appealed to the High Court, where Ollennu J, as he was then known, ruled among other things that, "a person whose property has been seized during the enforcement of a judgment against another individual is not required to interplead. His failure does not prevent him from taking any future action concerning the property." The lesson from this statement is that, an individual whose property was illegally seized may choose not to act under Order 44 or 48, but after the property has been sold, can sue for the harm done. The person who buys such an item gains almost nothing if the judgment debtor is not the actual owner, and consequently, the property should not have been seized. The legal principle states, "a man cannot give what he does not possess," in Latin,nemo dat quod non habet.His Lordship Ollennu J (as he was then) stated in this context, "a buyer at a sale resulting from a judgment execution acquires no more than the right, title, or interest of the judgment-debtor. In July 1951, Kwame Amponsah Darko, who had sold the farm in December 1950, had no interest that could be sold through execution. Therefore, Kwadjo Duku purchased nothing and sold nothing to the defendant-respondent; the defendant has no claim over the farm." The significance of this statement to the Author is that even without initiating an interpleader, someone whose property was wrongfully seized can bring a legal action against the execution creditor as a tortfeasor. The Author raises the question of whether such an individual might be prevented from claiming their rights due to acquiescence, unless the Claimant or Plaintiff can prove they were unaware of the initial wrongful seizure.
According to the Author, if the property has been sold at auction, the Claimant may be eligible to recover the sale proceeds. The Author holds this opinion because Order 44 rule 12 addresses not only the property itself but also “… the proceeds or value of any such property.” In the Author's opinion, this implies that even if the property was disposed of due to an unlawful attachment, once the claimant wins their case, they would be entitled to reclaim the sale proceeds from the execution creditor, without affecting any other legal remedies that might be available. This perspective received judicial approval in the case of BF Petroleum Limited v Bluesoil Limited, with Bayport Savings and Loans Plc as the Claimant.[27], where Dr. Ernest Owusu Dapaa J.A. echoes the collective voice of the Court of Appeal[28]had this to say, “…Regarding the Hyundai Elantra, if it has indeed been sold, the Appellant will be eligible to seek its remedies, including a right to any proceeds from that sale or such additional relief against the Respondent as may be suitable under the law…” (emphasis added by the author)
In Mabsout v Jos Hansen Soehne (Ghana) Limited,[29]The defendants attached two vehicles as part of enforcing a judgment debt against a company named Wabtraco. The Plaintiff filed an interpleader and requested a declaration of ownership over the two cars along with damages for the wrongful attachment. After reviewing the plaintiff's documents, the defendants agreed to release the vehicles, leading to a judgment against them for the claims made, except for the damages, which the trial judge decided to address in a separate action. The Plaintiff then initiated this current lawsuit, seeking damages for the wrongful seizure of the vehicles. The defendant, through its legal representative, argued that prior to the seizure, the defendants conducted inquiries confirming that the vehicles belonged to Wabtraco and were registered under their name. The defendant further claimed that by not registering the vehicles in his name, the plaintiff had implied through actions that the vehicles belonged to and remained under the name of Wabtraco, thereby preventing the plaintiff from objecting to the attachment, a stance the plaintiff contested. The court rejected the estoppel argument and ruled that, “…In this case, the defendants' actions seemed to have been influenced by the plaintiff's conduct, and the defense of estoppel based on conduct would have benefited them. However, they were prevented from using this defense due to their own admission that the seizure was wrongful, and a judgment had already been issued against them on that basis. Since this judgment was still in effect, it was not possible for them to re-litigate the issue of the seizure's wrongfulness.”
In the instance of The Big Boys Company Ltd versus Access Bank Ghana[30]Access Bank Limited initiated a prior legal action against Rockshell International Limited and secured a judgment against Rockshell. Following the judgment, Access Bank seized certain assets that it wrongly believed belonged to Rockshell International Limited. Big Boys Company Limited submitted a Notice of Claim regarding the Crane, which was the subject of the lawsuit in Big Boys Limited v Access Bank. The Honorable Court, after examining the procedures and evidence, ruled in favor of Big Boys Company Limited, resulting in the release and discharge of the Crane from the attachment. After winning the interpleader proceedings, Big Boys Company Limited filed a lawsuit against Access Bank Company Limited, among other things, seeking (a) Special Damages of USD25,000 per day, from May 12, 2016, until the release date on Wednesday, 15thIn March 2017, during the period when the crane was under attachment, the Plaintiff was unable to generate fees as per the contract. (b) Compensation for any damage incurred by the crane due to its non-use during the attachment period. In the case of Big Boys v Access Bank, it appears that the Court handling the Interpleader did not grant the damages sought by Big Boys, which prompted them to initiate a separate lawsuit. The trial High Court ruled in favor of Big Boys and rejected Access Bank's counterclaim. The trial Court directed Big Boys to recover the amount of USD25,000.00 per day from 12thMarch 2016 to the 15ththIn March 2017, special damages were claimed, along with a cost of GHS80,000.00 against the Defendant. The trial court determined that the attachment of the mobile crane was unjustified, as the defendant did not exercise proper care.
The Defendant (Access Bank), dissatisfied with the High Court's ruling, filed an appeal with the Court of Appeal. In the opinion of the Court of Appeal, although the attachment was incorrect, the Plaintiff did not establish sufficient evidence to support its claim for special damages. Consequently, the Court of Appeal overturned the special damages and instead awarded the equivalent of USD200,000.00 in Cedis as general damages, while reducing the costs from GHS80,000.00 to GHS20,000.00. On a subsequent appeal and cross-appeal to the Supreme Court, their Lordships determined that, "It is evident that the central issue in this appeal and cross-appeal revolves around the attachment of the Plaintiff’s 450-ton mobile crane and the subsequent award of damages to the Plaintiff. Both lower courts correctly concluded that the Defendant's attachment of the Plaintiff’s crane to satisfy the judgment debt owed by Rockshell International Ltd was unlawful—this was because the crane belonged to the Plaintiff. As accurately noted by the trial judge, the Defendant failed to exercise due diligence in its dealings with Rockshell International." Therefore, the Court awarded damages to the Claimant following the interpleader, after the Claimant initiated legal action against the Defendant for wrongful attachment.
In the instance of Ebenezer Darkwa and Another v Adonteng Community Bank[31]their Lordships in the Supreme Court[32]had the chance to comment on incorrect attachment. In that case, the Appellant filed a lawsuit against the 1stThe respondent and two other individuals at the High Court in Koforidua, who were being sued, jointly and individually claimed a certain amount of money along with interest. The appellant secured a summary judgment, which allowed the appellant to seize the Engen Petrol Station, including its pumps, the Toyota Tacoma vehicle with license plate GH 7635-Y, and another property not mentioned on the writ of attachment.fi.fa. The Respondents dissatisfied with the attachments submitted a Notice of Claim under Order 44 rules 12 and 13, leading to a hearing of arguments. After considering the arguments, the Court released the properties from the attachments. The Respondents, upset by the improper attachment, issued a writ against the respondents, seeking, among other things, special damages. The Appellant filed a defense arguing that the Respondents were prevented from initiating the lawsuit because the issue of property ownership had already been decided in the interpleader case. The trial court mistakenly agreed that the matter had been resolved in the interpleader proceedings. The trial judge ruled, among other things, that the law disapproves of fragmented litigation and that the Respondents should have presented their entire case before the court (during the interpleader proceedings) for final resolution, including requesting special damages. The Respondent appealed the High Court's decision to the Court of Appeal, which supported their appeal and overturned the High Court's judgment.
In the latest case of BF Petroleum versus Bluesoil Limited, Bayport Savings and Loans Plc served as the plaintiff[33], BF Petroleum as Plaintiff had filed a lawsuit against Bluesoil Limited and secured a default judgment. While trying to enforce the judgment, BF Petroleum wrongfully seized two vehicles that belonged to Bayport Savings and Loans Plc. It is important to mention that Bayport was not involved in the case at the lower court and only learned about the seizure later. As a responsible owner, Bayport sent a letter to BF Petroleum asserting its claim over the seized assets, which was denied by BF Petroleum, leading to a full hearing. Bayport Savings and Loans, as the Claimant, submitted an Affidavit of interest, and BF Petroleum also did so. After several exchanges, the matter was ready for trial. On the day of the hearing, even though the Execution Creditor informed the Court that the property was still with the auctioneer, the court dismissed the Claimant’s claim in the following words, “Secondly, regarding the other vehicle that is said to still be under attachment and is currently with the auctioneer, the Claimant did not act promptly enough to assert his rights. An attachment carried out in October 2021, which is nearly two years old, raises some suspicion that I cannot clearly identify. Therefore, I will also reject the application in this regard. In the given circumstances, I will dismiss the affidavit of interest submitted by the claimant, and it is hereby dismissed. No order regarding costs.after which the Claimant submitted a successful appeal to the Court of Appeal.
The Court of Appeal, which is an expert judicial body, overturned the decision made by the High Court and specifically ruled that the High Court was incorrect in rejecting the Appellant's notice of claim. The Court of Appeal concluded as follows: "After reviewing all the points of appeal, we find that the trial Judge made a legal and factual error in dismissing the Appellant's Notice of Claim. The lower court was not finished with its duties regarding the Hyundai Elantra. It had a responsibility to assess whether the Appellant could at least be given the proceeds or recognized as the rightful owner if the sale took place without proper consideration. Likewise, the lower court made a mistake in stating that the Appellant did not act promptly concerning the Jeep Compass……" Their Lordships added further, "The judgment issued by the High Court on 19"thThe month of July 2023 is now designated as a separate period. It has been stated that the seizure of the Hyundai Elantra (GN 5214-19) and the Jeep Compass (GN 3889-19) during the enforcement of the judgment against Bluesoil Investment was improper and illegal."... The high court's ruling was therefore overturned.
What steps must a Judgment Creditor take prior to attachment?
Due Diligence
Once a judgment is issued against a party, the enforcement creditor must target that specific party. It is essential to be cautious to avoid harming another person's property while attempting to enforce the judgment. In the case of Big Boys v Access Bank, among others, the Court stated, “…It was correct for both lower courts to conclude that the attachment of the Plaintiff’s crane by the Defendant, to settle the debt owed by Rockshell International Ltd, was illegal—the reason being that the crane belonged to the Plaintiff. As accurately noted by the trial judge, the Defendant failed to exercise proper care in the transaction with Rockshell International. The Court of Appeal also correctly pointed out that the attachment of the mobile crane amounted to a tort against the Plaintiff.” The Supreme Court further remarked, “…More importantly, the Defendant did not perform adequate due diligence in attaching the crane, and both the trial court and the Court of Appeal reached this conclusion, which is clearly supported by the evidence available.”
Emphasizing the significance of thorough investigation prior to seizing assets during enforcement, the trial court in the Big Boys Limited v Access Bank case remarked, “… I must note that the Defendant's actions concerning the deal with Rockshell International were careless and lacked proper due diligence. If the Defendant had carried out a comprehensive inquiry through the right channels, along with some level of caution, it would have become evident that the crane did not belong to Rockshell International Ltd, and they would not have seized it.” The trial judge added further, “There was no legal justification for the seizure of the crane. For the reasons stated above, I conclude that the seizure of the crane was unlawful…”
In her publication, The Handbook on Civil Procedure and Practice in Ghana, (2023), the esteemed Author Francisca Serwaa Boateng[34], in discussing what an execution creditor needs to take into account before seizing property stated as follows, “When enforcing a judgment through fi.fa, the judgment creditor must focus on these three matters, namely, whose property should be taken, what property is to be taken and how much of the property needs to be taken”…. In addressing the first point, the respected Serwaa Boateng added, “(a) Whose property is to be seized: It is the property of the judgment debtor that should be attached and sold to settle the judgment debt. If the property belongs to the judgment debtor but is held by a third party, the bailiff can also seize it during execution.”
Risk of not conducting proper due diligence or improper attachment
If an Execution Creditor lets the pleasurable sensation guide them into enforcing execution improperly, it results in serious consequences that will ultimately cause them harm. It is argued that improper execution is indeed improper.ipso facto. It is also entering someone's property without permission.
If an Interpleader claim under Order 44 or Order 48 of the High Court Civil Procedure is successful, the person who wins the claim is eligible for compensation, damages, and costs related to the legal proceedings. Before considering the attachment of property, it is important to recognize that one has a responsibility to the owner of the property. It is necessary to perform due diligence to confirm that the property being attached belongs to the Judgment Debtor prior to proceeding with the attachment. As the Court stated in the case of Big Boys v Access Bank, due diligence refers to "the reasonable steps taken by a person to meet a legal requirement or a thorough evaluation of a business undertaken by a person in a business transaction." In other words, it is the investigation or exercise of care that a reasonable individual or business is expected to carry out before engaging in any business deal or contract. Within the context of enforcement, the Author suggests that due diligence involves the reasonable actions taken by a careful Judgment Creditor concerning the ownership of a property where he or she intends to enforce execution, in order to verify that the property in question belongs to the Judgment Debtor and not to any third party. If property is wrongly attached and the Claimant incurs specific damages, and if a lawsuit is filed with these damages clearly outlined and proven, the Court will grant such damages to the Claimant.
The rights of an individual who has been wrongfully executed
A party whose property was wrongfully seized following a successful challenge may initiate legal action against the Enforcement Creditor for improper attachment. The authorities in Staveley & Co. Motors[35], Agyekum v Alawiye[36]are to the effect that if there is an improper execution, a legal claim may be brought against the individual who has improperly seized someone else's property. Improper seizure is a legally actionable matter.per seIn the Author's perspective, it constitutes a violation of the Claimant's property, allowing for a successful legal action to be initiated against the Execution Creditor.
The unauthorized attachment of an individual's property results in harm and injury to the owner. The principle of equity states that equity will not allow a wrong to go without a remedy. The author argues, supported by legal precedents, that an action can be initiated to claim damages. In the case of BF Petroleum v Bluesoil Limited, Bayport Savings and Loans Plc as the Claimant[37]If the Respondent improperly seized the Appellant's vehicles, the Court of Appeal, through Dr. Ernest Owusu Dapaa, stated in its conclusion, “… With respect to damages and other remedies, we do not make any declaration, as the Appellant may immediately initiate new proceedings for damages if it chooses…” This indicates that the law acknowledges the Claimant's right to take legal action against the Execution Creditor for unjust seizure.
Is a Person Who Has Suffered Harm, Following Proceedings Under Order 44 and 48, Prevented from Initiating Additional Legal Actions?
A successful action in an interpleader, whether governed by Order 44 or 48, does not prevent the Claimant from pursuing a claim against the Execution Creditor. In the case of Mabsout v Jos Hansen and Soehne (Ghana) Limited[38], the defendant argued that the plaintiff was estopped, but this argument did not succeed before the Court. In Ebenezer Darkwa v Adonteng Community Bank Limited, the court dismissed the estoppel claim when their Lordships stated, “…In our opinion, the current lawsuit that followed the interpleader proceedings under Order 44 rules 12 and 13 did not request a remedy that should have been addressed in those interpleader proceedings, and since interpleader proceedings are interim, they could not have resolved or dealt with the matter of special damages. We believe that reviewing the appeal record shows that the subsequent proceedings and judgment were not a final decision, and the issues involved are not the same. The current proceedings cannot in any way be considered as piecemeal litigation, and the issue of damages was not finally decided to form the basis of issue estoppel. Furthermore, if there was improper execution, a lawsuit could still be filed against the same party.”
Is time working against the Applicant?
In interpleader proceedings under either Order 44 or 48, it is common for the Claimant to not be involved in the lawsuit between the Plaintiff and the Defendants. By the time an Execution Creditor attempts to seize property, the Claimant or a third party may not even be aware of the situation. This raises the issue of "when does the time period for a Claimant to act begin?" In the case of BF Petroleum v Bluesoil Limited, with Bayport Savings and Loans Plc as the Claimant, the Claimant acted immediately upon learning about the asset attachments. It sent a letter to the Execution Creditor and filed a Notice of Claim within the same month. The trial court judge incorrectly ruled that Bayport did not act promptly, according to the Author. The Court of Appeal overturned this incorrect decision, with Owusu-Dapaa JA stating, “The trial judge also concluded that regarding the Jeep Compass, the Appellant had not acted in a timely manner. However, the record indicates that the Appellant was not a party to the main case and only became aware of the attachment around April 2022, when its customers brought the issue to light.”
The Applicant, after receiving that information, wrote letters to the Court Registry and immediately submitted its Notice of Claim on 8thIn April 2022, which is approximately one month or less since the discovery of the attachment. The trial judge's assertion that there was a two-year delay from the supposed time of attachment (October 2021) until the submission of the Notice of Claim (April 2022) is not supported by the evidence. Even if the property was attached in October 2021, the actual time span is about six months, not two years, and the Appellant provided an affidavit demonstrating that it had no previous notice.
From the Record of Appeal, we have observed that the Respondent, in its Affidavit in Dispute, did not challenge the Claimant/Appellant's assertion that it submitted its Notice of Claim as soon as it became aware of the execution actions undertaken by the Respondents. Therefore, we see no issue with the Notice of Claim filed by the Appellant to express its interest in the properties involved in the execution initiated by the Execution-Creditor/Respondent.” His Lordship addressed the question of whether time applies to a Claimant, stating, “Furthermore, it is well-established law that, if a party is unaware of the attachment, the clock does not start running against them in relation to an execution they are not part of……..The true owner should not be punished for delay if the situation indicates that they were unaware of the attachment. We conclude that the learned trial judge wrongly overlooked the evidence demonstrating the Appellant's timely filing of its Notice of Claim upon becoming aware of the attachment…. ”
Are Interpleader actions conclusive or interim?
This issue is crucial to establish because ofinter alia the question of appeal and the circumstances under which it may be submitted. A matter is considered final if it conclusively decides the rights of the involved parties. If it does not completely settle the rights of the parties, then it is classified as 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]she expressed herself in the following manner on this topic, “In our opinion...an interlocutory order has also been described in Halsbury’s Laws of England (4thed.), Vol 26 paragraph 560 as: “An order that does not settle the ultimate rights of the parties, but either (1) is issued prior to a judgment and does not provide a conclusive decision on the issue being contested but only addresses a procedural matter; or (2) is issued following a judgment, and simply outlines how the rights already established in the final judgment should be implemented, is referred to as 'interlocutory'.”
In the instance of Network Computer System Ltd versus Intelsat Global Sales and Marketing Limited[40]also concluded that the procedures decided by the trial court were interim and did not conclusively resolve the parties' rights." In Agoti v Agbenoku[41]The Court of Appeal stated that a ruling regarding an interpleader summons is provisional because it stems from another issue.
Continuing in the case of Ebenezer Darkwa and Another v Adonteng Community Bank, the highest court stated, “…Furthermore, a decision that comes from proceedings concerning an enforcement process can only be temporary. Although interpleader proceedings might establish the parties' rights regarding the ownership of the seized items, these proceedings have been classified as temporary.”
Earlier in the same case, the Court of Appeal had stated, "the proceedings that occurred during the interpleader process did not result in a trial of an issue between the parties; they continued as an application for relief initiated by the Registrar, although the ownership of the seized goods was determined when the Appellant's counsel expressed satisfaction that the properties did not belong to the judgment debtor but to the Respondent..."
For the purpose of appeals against decisions from the High Court, the deadlines for appealing interlocutory rulings are different from those for appealing final judgments. In cases involving interlocutory matters, the law provides a period of twenty-one days for filing an appeal.[42], whereas for final decisions the law permits three months[43].
It is worth mentioning that although there is a chance to request an extension of time for an appeal, the application for such an extension must be submitted within the initial three months.[44]there is no chance to extend the deadline in interim appeals.
Appeals are governed by law, and therefore, to benefit from them, an individual must meet the conditions set forth in the law that establishes such appeals.[45]
Having confirmed that interpleader proceedings are of an intermediate nature, it is clear that the appeal period cannot be three months because it does not constitute a final decision. The Author proposes that the appeal time in interpleader cases, although also intermediate, is not twenty-one days either.
Rule 13(5) of the Oder 44 provides that the number of days for filing an appeal under this rule is fourteen days. The law states that when there is a general rule and a specific rule concerning a matter, the specific rule takes precedence. This principle is expressed in the Latin termspecialibus generalia non derogantis cliché learning and has been used in several rulings including the case of Bonney & 4174 Others v GPHA[46].
The Functions of Attorneys in Implementation
It is no coincidence that parties hire legal advisors during their court cases. Legal counsel is required to offer direction regarding the law and occasionally the facts when moving forward with enforcement actions. Attorneys must also confirm that thorough investigation has been carried out to determine the actual ownership of the property before initiating enforcement against it.
Prior to a client instructing a lawyer to attach an asset, the lawyer must inquire before moving forward whether the property under consideration for attachment is eligible for such action. Among other factors, this includes verifying if the property belongs to the judgment debtor against whom the winning party is taking action, if there are any restrictions preventing the attachment of the property, and if the property requires registration, whether that has been completed.
All these indicate points that legal advisors should consider. For example, not every asset of an individual is subject to seizure. The law restricts the attachment of specific types of assets, such as pension funds.
The National Pension Authority Act 2008 states that, “The accumulated benefits of a member within an occupational pension scheme cannot be seized during the enforcement of a judgment debt or utilized as a security, mortgage, claim, or be transferred, assigned, or disposed of by or on behalf of the member.”[47]Any such action is against the law and therefore invalid and has no legal effect.[48]
It is argued that lawyers must offer advice and assistance in determining the actual ownership of properties that should be seized. This forms an essential part of the legal due diligence process. For vehicles, it would be suitable to perform checks with the Driver Vehicle and Licences Authority to identify the present owner.
The Form C titled, "Driver and Vehicle Licensing Authority (DVLA) Ghana Application Form to Transfer Ownership of Motor Vehicle" serves as a means to verify vehicle ownership. In the case of Big Boys Limited v Access Bank, the Court stated, "I must say that in our jurisdiction, the most reliable method to confirm ownership of any vehicle is by presenting registration documents."
To determine the owner of a landed property and whether it has any encumbrances, one can perform a search at the Lands Commission. This organization maintains records related to the ownership of all landed properties. Additionally, to check for encumbrances on specific properties, one may refer 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), as legal requirements mandate the registration of charges on properties to ensure encumbrances are properly recorded.
Role of their Lordships
If cases falling under Order 44 and 48 are handled and the Plaintiff wins, the Author proposes that the Court should recognize that apart from the expenses of pursuing the claim, the Plaintiff may have experienced certain damages.
Typically, the expenses that courts grant following a case are insufficient to cover the legal charges incurred by Counsel during the proceedings. In the case of BF Petroleum v Blue Soil, Bayport Savings and Loans Plc as the Plaintiff, the Court of Appeal awarded GHS10,000.00 in costs to the Plaintiff/Appellant.
That expense is significantly lower than what the Claimant invested in pursuing the claim before the lower court, let alone the appeal. Clearly, to recoup costs beyond damages and compensation, the Claimant might contemplate initiating a new lawsuit, as occurred in the cases of Big Boys v Access Bank, Mabsout v Joe Hansen, as noted in BF Petroleum v Bluesoil Limited and Bayport Savings and Loans PLC.
Most, and possibly all, judges have previously worked as practitioners, and therefore cannot be completely unaffected or unaware of the processes involved in handling such cases. It is argued that Their Lordships possess a reasonable understanding of the costs, damages, and compensation these proceedings deserve, which can significantly help prevent multiple lawsuits, a key principle outlined in the Court's rules.
Recommendations
- The regulations of the Court Committee may review the rules and permit Claimants to demonstrate damages once the proceedings under Order 44 or Order 48 have concluded. Professionals and other involved parties should not ignore the reality that pursuing claims in this way incurs costs (such as filing fees, legal charges, etc.), and emotional harm occurs, which requires compensation.
- Their Lordships can also suo motoConsider awarding compensation to the Claimant following a successful claim, provided it is established. Once the Claimant receives compensation that covers their losses, there would be no necessity to initiate a new legal action. Order 1(1)(2) of the High Court Civil Procedure Rules states, “These Rules should be interpreted and applied in a manner that promotes swift and effective justice, prevents delays and excessive costs, and ensures that, as much as possible, all disputes between the parties are fully, effectively, and conclusively resolved, avoiding multiple proceedings on the same issue.” The author suggests that even without modifying the rules to include specific provisions for the granting of damages, a broad interpretation of the rules could enable a party to proceed, provided they can substantiate their case with reliable evidence. Indeed, the rules outline the Court's authority in these proceedings, stating that...the Court may direct that any dispute between the claimant and the execution creditor be identified and adjudicated, and may determine which party will act as the plaintiff and which as the defendant.[49]This suggests that if the matter of damages arises as a point of contention, the court has the authority to decide.
Conclusion
In summary, it is recommended that Judgment or Execution Creditors should be enthusiastic about their judgments, but while doing so, one must not be in that position.orgasmicTo lose control of oneself in order to carry out an execution against a property belonging to a third party who is unrelated to the case. One must be cautious in exercising proper care when taking action against the Judgment Debtor, ensuring that the property being seized in enforcement belongs exclusively to the judgment debtor.
[1]George Bernard Shaw is a Ghanaian attorney recognized for his contributions to civil rights and legal proceedings, especially for representingYaw Asante Agyekum, a man unjustly confined for many years
[2] https://www.instagram.com/reel/DKhcSp3qj5G/
[3]Case No. H2/05/2021 Decision issued on 5thJune 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 updated.
[5]Order 41 (7) of the High Court (Civil Procedure) Rules, 2004 (C.I 47)
[6]Order 28 (4) subsections (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 decision issued on
[23]Previous Deputy Attorney General, former and first Special Prosecutor, a man recognized and honored for his Citizen Vigilante role
[24] (2013-2014) 1 SCGLR 506.
[25]Coram Benin JSC as a sole judge
[26] [1961] GLR 599
[27]TLP-CA-2025-04. Case No. H1/215/2024 decision made on 19th June 2025
[28]Coram Suurbaareh J.A (Chairperson), 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 (Chairperson), Dordzie (Mrs) JSC, Torkornoo (Mrs) JSC, Honyenuga JSC, Kulendi JSC
[33]TLP/CA/2025/04 Appeal Court, with Suurbaareh J.A (Chairperson), Aryene (Mrs) JA, Owusu-Dapaa JA.
[34]Francisca Serwaa Boateng is a seasoned attorney in Ghana and an accomplished writer.
[35] [1968] GLR 114
[36] [1987-88] GLR 1
[37]TLP/CA/2025/04 Appeal Court, with Suurbaareh J.A (Chairing), 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]Rule 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 vs 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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