Amo-Mensah v. Owusu [1971] 1 GLR 134.

JUDGMENT OF TAYLOR J.

Taylor J. On 20 December 1969 I gave a decision dismissing the motion filed on behalf of the applicant and I reserved the reasons for the said decision. I now proceed to give the reasons for my so dismissing the motion.

On 12 January 1963 the respondent by a writ of summons commenced an action against Joseph Amo-Mensah in this court. The defendant entered an appearance on 26 January 1963 and after the pleadings and summons had been taken, the case dragged on for almost six years mainly due to adjournment after adjournment granted at the instance of the

defendant. At last on 28 January 1969, almost six years exactly after the defendant had entered his appearance, the plaintiff obtained a judgment against the defendant, the court adjudging that the respondent recover against the defendant the sum of N¢39,296.54 with N¢2,000 costs. I am not aware of any appeal lodged by the defendant. Apparently on 5 November 1969 the respondent caused a writ of fi. fa. to issue for the attachment of the properties of the defendant and the said properties were accordingly attached. The properties attached are alleged to be house No. C 1, extension block 4, plot 11 at Kumasi and goods in a store. The applicant who claims to be in partnership with the said Joseph Amo-Mensah applied to this court by motion on notice to the respondent praying for an order, “(1) removing the attachment levied on the property of Amo-Mensah Brothers and (2) setting aside the judgment irregularly obtained against Amo-Mensah Brothers on 27 June 1969.”

At the hearing of the motion counsel for the applicant abandoned the prayer to set aside the judgment, and no argument was therefore advanced, and rightly so, for this was a rather extraordinary request by an applicant who was an obvious stranger to the suit. Counsel however argued very vigorously in support of an order removing the attachment on what is described as the property of Amo-Mensah Brothers. In his affidavit in support of the motion the applicant deposed: “The property attached belongs to a partnership.”
In his supplementary affidavit in opposition the respondent averred on oath as follows: “All the properties attached are not partnership properties as averred to by the applicant. They are the properties of Amo-Mensah the defendant-judgment-debtor.”

I find it rather strange that the applicant did not obtain and file an affidavit from his partner denying ownership of the properties alleged to belong to him, but this is of little consequence. Having sworn that the property is partnership property, the applicant rested his prayer for the order removing the attachment on the peremptory provision of section 20 (1) of the Incorporated Private Partnerships Act, 1962 (Act 152), which states that, “A writ of execution shall not issue against the property of a firm except on a judgment against the firm.” The provision is as reasonable as it is understandable.

At common law the property of a partnership was liable to be taken in execution for the debts of one of the partners. The sheriff was in duty bound to sell the debtor’s interest in the property seized despite the fact that in the absence of proper accounts it was impossible to know precisely the interest to be sold. The provision of section 20 (1) of our Act 152 is almost identical with the provision of section 23 of the English Partnership Act, 1890 (53 & 54 Vict., c. 39), a provision adopted in England to circumvent the inconvenience of the common law practice on the advice of Lord Lindley. Counsel for the applicant has argued quite forcefully that the applicable provision of our rules of court under which the respondent should have proceeded is Order 48A, r. 10 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). With the utmost respect, I think that that order applies to actions between co-partners as

the side notes so clearly show. In my view Order 46, r. 2 governs applications by a judgment-creditor of a partner in the position of the respondent herein, assuming that the allegation that the property is partnership property is true and this is in accord with section 20 (2) of Act 152. If therefore, the property attached is partnership property, then the attachment is unlawful and the applicant is entitled to an order removing the attachment.

The respondent, however, has also sworn to an affidavit deposing that the property belongs to the judgment-debtor. Indeed in this case, as I understand the affidavits of the parties, the properties have already been attached by the sheriff. This is a situation which has been adequately provided for in the rules of court under Order 57 dealing with interpleader. Under Order 57, r. 1 it is provided that:

“Relief by way of interpleader may be granted—. . .

(b) Where the applicant is a sheriff or other officer charged with the execution of process by or under the authority of the Supreme Court, and claim is made to any property, moveable or immovable taken or intended to be taken in execution under any process, or to the proceeds or value of any such property by any person other than the person against whom the process is issued.”

The applicant therefore can interplead by making a claim to the sheriff asserting ownership to the said property on behalf of the partnership. Since the applicant is claiming that he and the judgment-debtor are partners in a firm as is contemplated by Act 152 he can so formulate his claim on behalf of the firm by relying on the corporate personality of a firm as is guaranteed by section 12 (1) of Act 152 which states that:

“the firm shall be a body corporate under the firm name, distinct from the partners of whom it is composed, and capable forthwith of exercising all the powers of a natural person of full capacity in so far as such powers can be exercised by a body corporate.”

The applicant did not interplead. In fact he applies in his own right as Kwaku Amo-Mensah. I have grave doubts as to his standing for I think this application, if it should be made at all, should have been made by the firm. However this also is of little consequence. What is crucial to a determination of this matter is whether the procedure adopted by the applicant, assuming he has a standing, is the proper procedure . . . In other words, can the applicant circumvent the procedure laid down in Order 57 relative to interpleader proceedings and apply as he has done here for an order to remove the attachment. I had grave doubts whether this can be done and so I asked counsel for the applicant to indicate the rule of court under which he was proceeding. Counsel submitted that he was proceeding under Order 70, r. 1 and submitted further that because the applicant is only a partner whose interest does not extend to the whole of the partnership property he cannot come by way of interpleader under

Order 57. Now Order 70, r. 1, the rule under which counsel purports to move the court, read thus:

“1. Non-compliance with any of these Rules, or with any rule of practice for the time being in force, shall not render any proceedings void unless the court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.”

I think it is incredible that an applicant will in the first instance move the court y virtue of this provision. I would have thought that this is a saving provision designed to enable a judge to use his discretion to validate an application made under a rule, the provision of which had not been complied with, in order that substantial justice could be done and applications would be heard on their merits. Order 70 is in my view not meant to be used by applicants for conjuring up non-existent procedures. Order 70, r. 1 covers cases where an applicant has not complied with an existing rule or rules; but where an applicant is proceeding upon no rule at all, I am not sure he can be heard to say that as he has not contemplated any rule and there is in fact no rule under which he is proceeding, his act should be interpreted as non-compliance with the rules so that he can be brought within the purview of the rules generally. As I understand it, the applicant, by referring to Order 70, r. 1 as the rule under which he is moving the court, is in effect saying that he has made an application to the court in a deliberate effort not to comply with the rules. He has come to the court bent on throwing the rules to the winds. It is a submission which is difficult to understand unless I have misconceived counsel’s submissions and have formulated them erroneously.

Proceeding however on my understanding of what counsel is urging, it is my view that the law is that where an enactment has made a specific provision and there is another enactment with a general provision the assumption that counsel can by an interpretation of Order 70, r. 1 which I have presently failed to appreciate and so cannot grasp, justify his stand that the present application is within that Order, I will nevertheless hold that in that case the provision under Order 70, r. 1, is a general one. Clearly it cannot but be considered as a general provision because I have strained hard without success in a bid to see how it can be interpreted as permitting an application of the sort urged here by counsel. On the face of it, it is obvious that it is not a specific provision. If so, since Order 57 is a specific provision, it is my firm view that it must be preferred. The applicant should interplead on behalf of the firm under Order 57. It is only by proceeding under Order 57 that the question of ownership, the real issue in controversy between the parties be settled. If I am wrong in the view I have taken, and Order 70, r. 1 is considered applicable, then since under that rule, I have a discretion to set aside the proceedings by declaring it void, I would exercise my said discretion and set aside the present proceeding and direct that it is void. The applicant should bring

his application under Order 57 by first putting in a claim directed at the sheriff if he intends to contest the ownership of the properties taken in execution. It is for these reasons that I dismissed the applicant’s motion with costs. In my view it is misconceived.