The Accra High Court has dismissed an application in which Fidelity Bank is urging the court to order the Ghana Revenue Authority (GRA) to pay more than GH¢5 million in a judgment debt case.
The bank, the plaintiff applicant had judgment against Wiennex Limited and two others for more than GH¢10 million.
After the judgement, the bank chanced upon a letter which GRA wrote to the defendants to the effect that the defendants had tax credit with GRA.
The bank went to court and urged the court to compel GRA to pay the defendants tax credit of GH¢5,078,899.83.
On August 24, 2021, the Commercial Division of the High Court, differently constituted in a Garnishee Order directed the Commissioner General of GRA or its representative to appear in court and show cause why monies standing in the credit of the defendants/judgment debtors should not be attached in full or partial satisfaction of the judgment debt.
The order and hearing notice were served on the Commissioner General of GRA.
But in ruling on the application, Justice Francis Obiri observed that there was no indication before the court, that the Garnishee Order dated August 24, 2021 was served on the Judgment Debtors by the Judgment Creditor.
Justice Obiri stated that there was also no indication that hearing notice was served on the defendants/judgment debtors by the Judgment Creditor to appear in court for the garnishee proceedings to be held.
“The Judgment Creditor and the Commissioner General of GRA subsequently filed their respective submissions as to whether the order dated August 24, 2021 is to be enforced or not.
“However, before the court could pronounce on the merits of the submissions, the court detected the non-service of the Garnishee Order on the Defendants/Judgment Debtors.”
Justice Obiri held that the non-service of the Garnishee Order dated August 24, 2021, on the Judgment Debtors by the Judgment Creditor was very fundamental and fatal to the application.
“The Judgment Creditor’s application is therefore dismissed as not being properly invoking the jurisdiction of this court,” Justice Obiri stated.
Justice Obiri cited a number of authorities to support his decision before dismissing the bank’s application.
In reaching the decision to dismiss the application, Justice Obiri referred to decided cases by the Supreme Court.
Consequently, he said the court is unable to accept the interested party’s contention, which is, in effect, that the judgment debtor can only be served with the order to show cause regarding the garnishee proceedings if the court orders that it should be served on the judgment debtor.
“It is trite law that non service of process of court which is to be served on a party goes to the jurisdiction of the matter. Such a defect cannot be waived under Order 81 of CI.47.
Consequently, any judgment or order obtained upon such non-service is a breach of natural justice rule and is a nullity. Such an order or process must be set aside. “
BY MALIK SULLEMANA
