SALIFU HANNAH & 281 OTHERS v. DIAMOND WINNERS &3 OTHERS
2021
COURT OF APPEAL
GHANA
CORAM
- OFOE, J.A
- BARTELS-KODWO, J.A
- BERNASKO ESSAH, J.A
Areas of Law
- Civil Procedure
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal case concerns competing judgment creditorsthe appellant and respondentseeking to execute against Yutong buses belonging to Diamond Winners Micro Finance Ltd. The appellant obtained a preservation order over the buses during trial (October 22, 2015), later secured judgment (May 18, 2016), and initiated execution steps including fi.fa, attachment, valuation, and a reserve price application. The respondent, also a judgment creditor, claimed priority based on an earlier fi.fa application (October 20, 2016) and filed a notice of claim under Order 44 rules 7(9) and 12(1). The High Court ruled on June 12, 2017 that the respondents attachment had priority. The appellants review application was dismissed on October 16, 2017. On appeal, the Court of Appeal dismissed a preliminary objection and confined its analysis to whether review grounds under Order 42 rule 1(1) were met, concluding they were not, and dismissed the appeal.
OFOE, J.A:
The main issue that commenced this execution process in this case under review was which of the two judgment creditors, the appellant or the respondent, has priority in executing his judgment against the defendant/ judgment debtor who owns the Yutong buses attached in execution of his debts? The facts of this case, chronologically presented, will make the opinion we are about to deliver clearer.
The Appellant in the course of trial of their claim against the Defendant, Diamond Winners Micro Finance Ltd and 3 others, applied and got an Order for the preservation of 4 Yutong Buses belonging to the Defendant. The application was filed on the 22nd October 2015 and the Order was granted the same day 22nd October 2015. Subsequently it had Judgment on the 18th May 2016 for the sum of GH2,424,419.00 and recovery of interest on the sum of GH1,175,450.00. In execution of this Judgment a writ of fieri facias was issued and subsequent Attachment of Immovable Property by Sheriff was issued for Yutong Buses Registration Numbers GN 4464-14 and 4480-14, all on the same day 17th November 2016 (refer to page 14 of ROP). The Inter City STC Coaches Ltd was requested to value the said buses and on the 14th of December 2016 application was made by Counsel for the Appellants for Reserve Price to be fixed by the Court. It was at this stage that the Claimant, who is the Respondent in this appeal, filed Notice of Claim under Order 44 rule 7(9) and 12(1). What is his case?
It is that he issued a Writ of Summons against the same Defendant/Debtor and had Judgment pursuant to which he had filed an Application for a writ of fieri facias to issue for the attachment of the properties of the Defendant/Judgment Debtor. This application was filed on the 20th of October 2016. It is his contention that since he had this application pending it was wrong for the appellant to have proceed for the same property with another writ of fieri facias. He sought to impress on the Court that the application for the writ of fieri facias of the Appellant made subsequent in time on the 17th November 2016 is therefore void or at least irregular he should be given priority in the execution process in respect of the properties of the Defendant/Judgment Debtor. In effect, he should be given priority in the attachment and sale of the buses that the Appellant had succeeded in bringing down to Bolgatanga.
After listening to both Counsel the Trial Judge ruled on the12th of June 2017 as follows:
“Havi