WEST AFRICA COMMODITIES LTD VRS. FIANKO AND ANOTHER (GJ/1811/17) [2024] GHAHC 445 (5 November 2024)

THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, CRIMINAL COURT 4, HELD IN ACCRA ON TUESDAY, THE 5TH DAY OF NOVEMBER, 2024, BEFORE HER LADYSHIP COMFORT KWASIWOR TASIAME, JUSTICE OF THE HIGH COURT. __________________________________________________________ SUIT NO.: GJ/1811/17 WEST AFRICA COMMODITIES LTD ---- PLAINTIFF VRS. HAIKINS OFFEI FIANKO & ANOR ---- DEFENDANTS PARTIES: PLAINTIFF – ABSENT 1ST DEFENDANT – ABSENT 2ND DEFENDANT - PRESENT COUNSEL: JULIEN MENSAH SEGBAWU HOLDING BRIEF FOR MARTIN KPEBU FOR THE APPLICANT - ABSENT AKROFI KUMOJI HOLDING BRIEF FOR YAKUBU DUBIK MAHAMA FOR THE RESPONDENT –ABSENT RULING 1 Defendant/Judgement Debtor/Applicant herein after referred to as Applicant, filed this application on the 22/8/2024 praying the court for an order to rescind the writ of fifa issued on the 4th April, 2024. Attached to the Application are the affidavit in support and exhibits. Permit me to quote relevant portions of the affidavit in support. “That on Friday, 9th August, 2024, a bailiff posted an attachment of immovable property on my wall in connection with a case we had against the respondent. That I was never served with an Entry of Judgement nor has any process been served on me for me to take any action. That the outstanding debt is incorrect as the respondent used an interest rate of 24% which is far above the Commercial Bank rate where I have saved the respondent money. 9. That the Commercial Bank rate at the bank where I deposited the Respondent’s monies was 4.86% and that should be applied as the simple interest rate as ordered by the Supreme Court. 13. That I humbly pray this court to set aside the fifa order and the attachment order obtained by the respondent against me as his application which he relied on to obtain these orders against me did not reflect the true and accurate judgement delivered by the Supreme Court coupled with the inaccurate computation of the interest rate dated 5th September, 2023. Exhibit A is the Supreme Court judgement and Exhibit B is the Stanbic Bank Ghana Ltd, interest rate guide. Learned Counsel for the Plaintiff/Judgement Creditor/Respondent simply referred to as the Respondent filed an affidavit in opposition. He stated in paragraph 6, “That the defendants were served with the Entry of Judgement and Demand Notice by the searches conducted at the Registry of the Court of Appeal. 7. That the interest rate of 24% per annum was the applicable rate on the day of Judgement and same was applied to the Plaintiff’s GH¢160,000.00 and the Defendants GH¢15,000.00. That there was an understanding between the Counsel of both parties that the executed document covering the one (1) plot of land and the cheque covering the GH¢160,000.00 the adjudged debt together with the accrued interest as at the time shall be exchanged simultaneously. 13. That after the Supreme 2 Court Judgement and its confirmation on review, an Entry of Judgement was filed and same was served and received by the 1st Defendant for and on behalf of the Defendants. Attached to the affidavit in opposition are; 1. Filed demand notice dated 21/01/2022(CA) 2. A search conducted at the Registry of Court of Appeal filed on 6th September, 2024. 3. Amended computation of Judgement debts as per Entry of Judgement after trial pursuant to court order dated 1st June, 2021. 4. Entry of Judgement and computation of Judgement Debts filed on 21/12/2023. BY COURT: The issue here is whether or not the Defendants have been served with the Entry of Judgement. A search conducted by the learned counsel for the Plaintiff at the Registry of the High Court reveals that the Defendants were not served with the entry of the High Court’s Judgement delivered on 20th February, 2019. Another search was conducted at the Registry of the Court of Appeal by learned counsel for the Respondent. According to the search filed on 6/9/2024, defendants were served with the Entry of Judgement filed on 2nd June, 2021. They were served on 18th June, 2021. That was the Judgement of the Court of Appeal delivered 10th December, 2020. The principle of law is that, Entry of Judgement or Judgement after trial and writs of execution, such as Writ of fifa, writ of possession are to be served personally on the parties. In the application before me, after the judgement of this court differently constituted was delivered, Plaintiff appealed against the decision of the High Court to the Court of Appeal, after the delivery of the judgement of the Court of Appeal, Defendants appealed against the Court of Appeal to the Supreme Court. The Supreme Court judgement was delivered on 25th January, 2023. The Supreme Court in its Judgement set aside an award of GH¢35,000.00 awarded in favour of the 3 Plaintiff/Appellant/Respondent, the Appeal against the judgement of the Court of Appeal dated 10th December, 2020 was dismissed. It is borne by Exhibit A which is the judgement delivered by the Supreme Court on the 10th May, 2023, that one Paa Joy Akuamoah Esq. represented the two Defendants including the Applicant herein. Respondent attached a search report from the Court of Appeal. This search result indicated that, Defendants themselves were served with Amended Entry of Judgement on the 18/6/2021. Respondent in his affidavit in support stated that the Entry of Court of Appeal Judgement was received by 1st defendant for and on behalf of the 2nd defendant, however, such information is not borne by the Search result. Court of Appeal judgement was delivered on the 1st of June, 2021. Since as at the time the Court of Appeal delivered their Judgement, one lawyer was representing the defendants who were husband and wife, contrary to the submissions of learned counsel for the Applicant that, after the filing of the case, the defendants were involved in divorce proceedings and the Entry of Judgement was served on only 1st Defendant who did not bring it to the attention of the 2nd (Applicant), that is contrary to the search results. I think this application do not merit grant, same is hereby dismissed. I find it wrong going into computations and the calculations of the interests by the Court of Appeal as learned counsel for the Applicant has invited me to do, on the sum because I think it is not the duty of this court to try and find out how much interest applicant is to pay by perusing the Court of Appeal Judgement and determining whether the calculations were wrong or right. I think that the Registrar of the Court of Appeal may help the parties in doing so since this is borne by the Entry of Judgement filed. No order as to costs. (SGD) COMFORT KWASIWOR TASIAME (JUSTICE OF THE HIGH COURT) 4