CAL BANK LIMITED VS KINGSMAN MODERN AUTO COMPLEX & ANOR

On 7th November, 2013, this Court gave judgment in favour of the Plaintiff/Judgment Creditor/Respondent (herein called the Respondent) for the recovery of an amount of GH¢806, 038. 07 being the outstanding balance on a medium term loan facility as well as interest on the amount at 18% p. a till the date of final payment.

The Respondent filed and served an Entry of judgment pursuant to an order of the Court for substituted service, and proceeded to go into execution of the judgment by attaching certain immovable properties of Defendant/Judgment/Applicants (hereinafter referred to as Applicants). It is this execution that the Applicants seek to set aside.

It is the case of the Applicants that they were not served with the notice of Entry of Judgment according to the terms of the order of the Court for substituted service.

The Applicants contend therefore that the Respondent’s failure to comply with the order of the Court makes the service defective.

The Applicants further contend that the issuance of the Writ of fi fa was fundamentally defective as the Writ of fi fa was issued a day before the order for substituted service of the Entry of Service of the Entry of Judgment lapsed.

It is also the case of the Applicants that the attachment of the immovable property at Dansoman was erroneous and done not in conformity with the rules of Court.

The Respondent is opposed to the present application.

It is the case of the Respondent that not only did it comply with the terms of the order for substituted service but it also served the 2nd Defendant personally with the Entry of Judgment.

Respondent further contends that the Applicant had ample notice of the judgment and Entry of Judgment and even participated in post-judgment negotiations to an extent and paid off a part of the judgment debt.

It is further the case of the Respondent that the contention by the Applicants that the Dansoman property does not belong to the Applicants stands unproven despite the denial of the Respondent.

I have read the application and the affidavits filed by both parties.

I have also considered the written submissions filed by both Counsel.

The issues which, in my view, require my adjudication in this matter are as to whether or not the Respondent did not comply with the order of the Court for service of the Entry of Judgment on the Defendants by substituted service and whether or not the Writ of fi fa filed by the Respondent was defective.

Before dealing with the issues, it is