April 22, 2009
SUPREME COURT
GHANA
CORAM
AI Generated Summary
In a supervisory jurisdiction ruling, the Supreme Court of Ghana, per Justice R. C. Owusu (MS), with Justices W. A. Atuguba, S. A. B. Akuffo (MS), J. Ansah, and P. Baffoe-Bonnie concurring, reviewed interlocutory orders made by the High Court, Koforidua (Justice Kossi Efo Kaglo) in litigation between Samuel Agyei and Augustus Osae Akonnor over three luxury vehicles (Mercedes-Benz S500, BMW 745 LI, and Mercedes E500). Agyei had sought an absconding warrant and ex parte preservation/security orders the same day he filed suit. The High Court ordered surrender of vehicles or deposit of US$192,000, and the next day reiterated preservation and imposed bail and stringent conditions, without first hearing Akonnor. The Supreme Court held that preservation orders under Order 25 rule 2(1) must be on notice per Order 19 rule 1(3), and that the High Court’s approach breached audi alteram partem and Order 73’s requirements to hear the defendant before ordering bail. While a properly issued absconding warrant does not violate Article 14(1), the Court condemned late-night execution attempts as infringing Article 18(2). It quashed the preservation and bail orders and prohibited the trial judge from further hearing the case.
R U L I N G
OWUSU (MS), J.S.C.:-
The Interested Party in this application issued a writ of summons in the Respondent’s court, Koforidua for the reliefs endorsed thereon as follows:
“An order directing the Defendant to return Mercedes Benz S.500 with Chassis No. WDBNG84J5A460855 and BMW 745 LI with Chassis No. WBAGN6356DS56067 or their market value of US$186,000.”
“Recovery of US$6,000 being the outstanding balance on Mercedes Benz S.500 with Chassis No.WDBUF70JX5A787505.”
Accompanying the writ was a statement of claim setting out the facts upon which the claim is based. The writ and statement of claim were filed on 15/12/08.
On that same day, counsel for the plaintiff filed an application ex-parte for absconding warrant and an order for preservation or alternatively for provision of security against Judgment about 40 minutes after the writ has been filed.
The application was moved on the very day that it was filed and before the Applicant herein could even enter appearance to the writ of summons.
In the affidavit in support, the applicant averred in particular that –
“The defendant is ordinarily resident in London, United Kingdom”
“My information is that the Defendant intends to leave the Jurisdiction of the court particularly as he became aware that I am chasing him for my cars and money”.
If the Defendant is not ordered to surrender the vehicles for preservation pending the hearing of the case or in the alternative the Defendant is not made to provide. Security against Judgment it will be nigh impossible for me to prosecute this claim and possibly execute Judgment”.
Having heard the application, the trial Judge ruled as follows:
“the Respondent is ordered by this court to come to the court and surrender all the three (3) vehicles stated in paragraph 4 of the statement of claim or in the alternative deposit an amount of $192,000.000 with the Registrar of this court the security against any Judgment that may be given any Judgment that may be given in respect of this case should the Defendant/Respondent find himself outside the Jurisdiction of this court at the time of trial. By this the court is issuing a bench warrant (sic) for the arrest of Defendant and present before this court at the next opportunity”.
What the applicant has prayed for is absconding warrant but not bench warrant as ordered.
On 16/12/08, the applicant herein then Defendant, was present in court. This is what transpired in the court:
“The Defendant’s is in court but has