SONIAG COMPANY LIMITED & ANOTHER vs BOND SAVINGS & LOANS LIMITED & ANOTHER
2022
HIGH COURT
GHANA
CORAM
- HER LADYSHIP JANE HARRIET AKWELEY QUAYE
Areas of Law
- Civil Procedure
- Evidence Law
- Banking and Finance Law
2022
HIGH COURT
GHANA
CORAM
AI Generated Summary
Her Ladyship Jane Harriet Akweley Quaye of the Ghana High Court enforced a December 14, 2020 money judgment by adjudicating garnishee proceedings against GCB Bank Limited, the garnishee holding the Defendant’s account (identified in testimony as Bonds Savings & Loans). After service of an Order Nisi on March 23, 2021 and delays from stay applications, GCB’s witness admitted that the bank withdrew GHC 1,037,507.43 on January 31, 2022 despite the binding order, claiming set-off without producing any documents. Applying Order 47 and authorities such as Choice Investments, Joachimson, and Majolagbe, the Court held service binds the debt and the garnishee cannot part with funds absent leave. The withdrawals were null and void; the bank must restore the funds, and a garnishee absolute was granted for GHC 1,037,507.43, less bank charges.
On the 14th day of December 2020, this Court pronounced Judgment in favour of the Plaintiff herein against the Defendant. Owing to the failure of the Defendant to pay the Judgment Debt, the Plaintiff commenced Garnishee proceedings. GCB Bank was subsequently served with a Garnishee Order Nisi granted by this Court on the 23rd of March, 2021 with a return date of 13th April, 2021.
Due to some intervening stay applications by the Defendant, the hearing of the Garnishee proceedings were delayed. Eventually, on the 14th day of June 2022, the Garnishee GCB represented by Mr. Otu Debrah mounted the Witness Box to show cause why monies standing to the credit of the Defendant should not be attached in satisfaction of the Judgment Debt. The witness then tendered Exhibit ‘GCB’; a statement of the Defendant/Judgment Debtor’s account with the bank and the statement showed that on 31st January 2022, the bank had withdrawn or allowed to be withdrawn by two instalments; an amount of Six Hundred and Twenty-Eight Thousand, Four Hundred and Ninety-Three Cedis, Fifteen Pesewas (GHC 628,493.15) and Four Hundred and Ten Thousand, Three Hundred and Fifty-Nine Cedis, Twenty-Eight Pesewas (GHC 410,359.28): all totalling One Million and Thirty-Eight Thousand, Five Hundred and Eighty-Two Cedis, Forty-Three Pesewas (GHC 1,038,582.43)
The Plaintiffs contend that this act of the Garnishee is a clear defiance of the authority of this Court and therefore prayed the Court to make the order absolute against GCB for all monies outstanding in and/or accruing to the account from 30th March 2021 to 14th June 2022 when the Garnishee was heard.
Issue
Whether or not the Garnishee GCB had the right to make the deductions from the account of the Defendant when the order nisi had been served on the Bank?
It is trite Law that the standard of proof in all civil actions, without exception, is proof by preponderance of probabilities, having regard to Section 11(4) and 12 of the Evidence Act of 1975 (NRCD 323). In dealing with the principle that “he who asserts must prove”, the Supreme Court held in the case of OKUDJETO ABLAKWA (NO.2) v. ATTORNEY GENERAL AND OBETSEBI LAMPTEY (NO.2) [2012] 2SCGLR 845 that:
“He who assets assume the onus of proof…. What this rule literally means is that. If a person goes to Court to make an allegation, the onus is on him to lead evidence and prove that allegation, unless the allegation is admitted. If he fails to do that the ruling on that allegation will go again