T. HUTTON-MILLS, JR. v. J. E. CORT, Attorney FOR F. D'ARCY COOPER, LIOUIDATOR FOR MANN AND COOK LTD.
1924
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
- MICHELIN, J
Areas of Law
- Civil Procedure
1924
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
AI Generated Summary
In this enforcement application, MICHELIN, J considered whether a judgment creditor could obtain leave to issue a writ of capias ad satisfaciendum against a garnishee following an earlier garnishee order absolute. Mr. Justice Beatty had, on 7 September 1923, recorded the garnishee’s admission of owing £135 7s. 0d to the defendant and directed execution to levy that amount from the garnishee. After the creditor’s writ of fieri facias was returned nulla bona, counsel Mr. Hutton-Mills Jr. contended that the order’s reference to execution encompassed attachment of the person of the garnishee. Examining the Supreme Court Rules, MICHELIN, J held that ca. sa. lies only against judgment debtors; garnishment binds debts without creating a direct debtor-creditor relation. Citing Pritchett v. English and Colonial Syndicate, the court noted that the proper remedy after ineffective execution is an action on the order absolute. As no such action had been brought, the application was refused.
MICHELIN, J.-This is an application by the plaintiff for leave to issue a writ of ca.sa. against the above-named Garnishee in respect of an absolute order made against the Garnishee by Mr. Justice Beatty on the 7th September, 1923, and which said absolute order reads as follows:-
"Garnishee in person says she owes to the defendant
" a sum of £ 135 7s. od.
" Order to issue execution to levy amount due from the
"Garnishee accordingly."
Mr. Hutton-Mills Jnr., in support of his application, referred the Court to Order XLVIII., rule I., of the Supreme Court Rules, to page 1555 of Seton on Orders (4th edition), and to page 256 of Edwards on Execution, and submitted that, inasmuch as the writ of f. fa., which was issued in obedience to the aforesaid order was returned into Court as nulla bona, the execution referred to in the said order meant not only attachment of property, but also attachment of the person of the Garnishee, and included therefore the right to issue a writ of ca. sa. against the said Garnishee to recover the amount due under the aforesaid Order.
On referring to Order XLV. rule 5, and to Order XLVI., rule 1 of the Supreme Court Rules, and to form 50 of the forms attached to the said Rules, it seems clear to me that the only person against whom a writ of ca. sa. can be issued, is a person holding for the time being the position of "Judgment-Debtor," in an action. The service of a Garnishee order binds the debts specified, in the hands of the Garnishee, but the Judgment-Creditor does not thereby become a creditor of the Garnishee in respect of such debts, but he acquires a right over them entitling him to prevent the Garnishee from paying the said debts to his creditors. Upon the ordet becoming absolute, the Garnishee becomes liable to the Judgment. Creditor for the amount due from him to the Judgment-Debior, or as much as may be sufficient to pay the judgment debt and the costs of the Garnishee proceedings. In the event of the Garnishee not paying forthwith into Court the amount due from him to the Judgment-Debtor as aforesaid, or an amount equal to the judgment debt, and not disputing the debt claimed to be due from him to the Judgment-Debtor, it is provided by Order XLV., rule 16, of the Supreme Court Rules (which corresponds to Order XLV., rule 3, of the English Rules of the Supreme Court), that the Court may enforce payment of the said debt by execution. It was held by the Court of Appeal in the case of Pritchett v. English and Colonial