Garnisheeing Joint Bank Accounts – The Ghanaian Law Perspective
Frederick Gurah Sampson Esq and Roselyne Kaledzi Esq
Introduction.
The Bank-Customer relationship usually commences with the account opening processes. This is the stage where the banks onboard their customers. The type of account opened for the customer is indicative of the kind of relationship that may exist between the bank and the customer during the period. There are several forms of accounts: such as Savings accounts, Current accounts, Corporate accounts, Individual Accounts, Joint Accounts etc. Each of these have its own legal ramifications. Joint Account usually is an account held by more than one person as opposed to individual accounts. Due to the special nature of Joint Accounts, attaching same in a garnishee to satisfy the debt obligation of only one holder must be considered carefully in order not to expose the bank to some unwarranted liability or suit by the other joint holder. For a detailed discussion on the subject of garnishee, see the previous article published by the authors; (https://ghanalawhub.com/understanding-the-ghanaian-law-on-garnishees/). An offshoot of that topic is, whether bank accounts that are held by persons jointly (Joint Accounts) can be attached in satisfaction of the debt obligation of one of the account holders. In other words, if ‘A’ and ‘B’ hold a bank account jointly (say ‘A’&‘B’ account) and ‘C’ obtains judgment against ‘B’, can ‘C’ proceed to attach the account (‘A’&’B’ account) belonging to ‘A’ and ‘B’ and attach the funds therein although ‘A’ does not owe ‘C’?
There are two contrasting positions of the law in this regard. While some jurisdictions think Joint accounts ipso facto cannot be garnisheed once the other party is not obliged to the Judgment Creditor in any way, other jurisdictions take the view that, Joint Accounts can be garnisheed regardless, subject however to certain conditions. In this article, the authors shall explore the subject of Joint Bank accounts, discuss its legal ramifications, evaluate the two legal positions on the subject whether it can be garnisheed or not, and conclude with a position that is consistent with the laws of Ghana.
What is a Joint Account?
Joint Account is defined as “a bank account held by two or more persons, each of whom may withdraw funds without the consent of the other. Such an account usually entails a RIGHT OF SURVIVORSHIP, so that any balance in the account when the holder dies becomes the property of the surviving holder.”[1] The Blacks’ Law Dictionary defines Joint Account succinctly as “A bank or brokerage account opened by two or more people, by which each party has a present right to withdraw all funds in the account and, upon the death of one party, the survivors become the owners of the account, with no right of the deceased heirs or devisees to share in it”[2]. It continues thus “Typically the account-holders are designated as “joint tenants with the rights of survivorship” or “joint-and-survivor account-holders”. In some jurisdictions, they must be so designated to establish a right of survivorship.”[3] A Joint Account is special due to its peculiarities. The distinction in law between Joint ownership and Ownership in Common is essential as they have different legal implications. In Joint ownership, there is always the doctrine of ‘jus acrescendi’ or the right of survivorship. This means that when persons hold property jointly and one dies, the property becomes the absolute property of the survivor. In Ownership in common, however, upon the death of one person, his or her interest devolves unto his successors. It must be noted that in Joint Accounts, each of the holders may withdraw from the account, subject to the mandate the holders execute with the Bank at the account opening stage.
Legal Ramifications of Joint Bank Accounts
A Bank that opens a Joint Account owes a duty to the account holders jointly. This position was upheld in Husband v Davies[4], where the court affirmed the position that when a bank opens a Joint Account for parties, the bank owes a duty to the parties to the account jointly.
Because the relationship between the bank and the customer is based on a contract, Joint Accounts raise a presumption of joint contract between the Joint Account holders on one hand, and the bank on the other hand. What happens with Joint Accounts is that, the parties, be they business partners or a couple would come together to open one account and fund same together or otherwise. Hence each party has the right to withdraw funds from the account without the consent or permission of the other, subject of course to the mandate instructions or signatories. The bank being liable to the Joint Account holders jointly, it is unable, in the absence of any indication to the contrary, to deal with the account except upon the instruction of the holders jointly or in accordance with the mandate at the time of creation of the account. The interest of the parties in the Joint account is not divisible, but each of the parties holds 100% interest in the property, and are therefore said to have what is known as unity of interests.
The two main distinguishing features of Joint ownership as indicated above, are the Right of Survivorship or ‘Jus acrescendi’[5] and the four unities (Unity of Possession, Unity of Interest, Unity of Title and Unity of Time). For purposes of this paper, we shall limit ourselves to unity of interest, which means that the interest of each joint owner is the same as that of the others as to its extent, nature and duration. As a matter of strict law, each person owns the whole of the property….[6]
With an account of this nature, the legal question that arises relative to garnishee is whether or not; it can be attached by way of garnishee in the satisfaction of the debt of only one joint holder in favour of another person who obtains judgment against a joint holder, or whether the funds in that account can be used to pay the judgment debt to a third party when the funds in the account are jointly held with all the incidents of a Joint Account or Joint ownership known to law? The authors take the view that Joint Accounts can be attached in garnishee proceedings under Ghanaian law.
The two contrary positions on whether or not Joint Account can be garnisheed.
As mentioned earlier, there are two contrasting positions of law on this all-important question, which two positions have had some judicial wrestling (to borrow the words of Atuguba JSC in Sam v Attorney General No1. cited in Nana Addo Danquah Akuffo Addo and Others v John Dramani Mahama and Another). While some jurisdictions like the Commonwealth countries opine through case law, that Joint Accounts cannot be garnisheed, others like America and Canada take the view that Joint Accounts can be garnisheed. It is worthy of note that there are decisions from Singapore supporting the two contrasting positions. The authors shall review these two positions and come to a conclusion that the position that Joint Account can be garnisheed is more convincing and in accord with the laws of Ghana.
Position that Joint Accounts cannot be garnisheed.
The judicial decisions that support this line of argument have mainly been from England where Ghana borrowed its laws both judicial (common law) and statute law until around the middle 19thCentury when Ghana obtained its own local legislature. Countries such as England in the case of Hirschhorn v Evans[7], Australia in the case of D J Colburt & Sons Pty Ltd v Ansen; Commercial Banking Co of Sydney Ltd (Garnishee)[8], Hong Kong (see Gail Stevenson and another v The Chartered Bank)[9]; Northern Ireland (see Belfast Telegraph Newspapers Ltd v Blunden (trading as Impact Initiatives[10]) and India (see Anumati v Punjab National Bank LNIND[11]) have all held that joint accounts are not attachable in garnishee proceedings. Their view popularly referred to as the position in Hirschon, is to the effect that a joint account, cannot be the subject of a garnishee order and therefore it would be unconscionable to attach same by way of garnishee for the satisfaction of the judgment debt of one of the joint holders. They argue that, this will be detrimental to the interest of the non-judgment debtor account holder. One key duty of a Bank is to ensure that monies belonging to its customers are not withdrawn without lawful justification as held in the cases of Selegbor United Rubber Estate v Cradock (No. 3) and Belmont Finance Corporation v William Furniture No. 2.[12] To this school, any such attempt to garnishee a Joint Account for the satisfaction of the debt of one party is detrimental to the other joint account holder who is not a party to the suit and therefore bears no legal liability.
Reliance is placed on the long-standing principle in the English law, that states that a Joint account cannot be garnisheed. Cases adjudicated even after Hirschon such as Macdonald v The Tacquah Gold Mines Company[13], Catlin v Cyprus Finance Corp (London)[14] have held the position that, Joint Accounts as long as they remain so, cannot be attached by way of a garnishee in satisfaction of the judgment debt of one of the holders of same.
In the case of Macdonald v The Tacquah Gold Mines Company supra, the court took the position that “The debt, legal or equitable owing by the garnishee to the judgment debtor, which can be attached to answer the judgment debt, must be a debt due to such judgment debtor alone, and where it is only due to him jointly with another person, it cannot be attached. (emphasis ours). The Court speaking through Bowen L.J at page 538 said “Where money is due on a covenant made with two persons jointly by which it is to be paid such two jointly, no one of those has any right to that money without the other…”
The Singaporean Court has in the case of One Investment and Consulting Limited and Another v. Cham Poh Meng (DBS Bank Limited, garnishee)[15] held that Joint Accounts cannot be attached by way of garnishee. The Court reasoned so, inter alia because doing so would prejudice the banks (garnishees), in terms of investigation of the respective contributions of parties and the enormous resources required to inform relevant parties, and in establishing whether monies in the joint account can be released, and that garnisheeing Joint Account will also prejudice the non-judgment debtor joint account holder, especially where there was no rule that the Joint Account holder should be notified about the attachment of the accounts. The position in this case therefore is that joint accounts cannot be garnisheed.
The facts of the One Investment case were that, the Plaintiffs obtained summary judgment against the defendant for, inter alia, a sum of US$1,472,561, pursuant to which the second plaintiff applied for a garnishee order against DBS Bank Ltd (DBS) for, inter alia, a joint account held in the names of the defendant and his wife (the Joint Account), consisting of US$117.34. The Assistant Registrar referred to and relied on two recent decisions namely the cases of Chan Shwe Ching v Leong Lai Yee [2015] 5 SLR 295 and Chan Yat Chun v Sng Jin Chye and another [2016] SGHCR 4 based on which it was held that the Joint Account could be subject to attachment under the garnishee order. In Chan Shwe Ching, it was held that a defendant’s interest in a property held jointly by him and a third party as joint tenants could be attached and taken in execution to satisfy a judgment debt under a writ of seizure and sale. In Chan Yat Chun, it was held that a similar approach is also taken where the defendant and the third party hold the property as tenants-in-common instead and although the learned Assistant Registrar acknowledged that the two cases mentioned above relate to a writ of seizure and sale against immovable property rather than the garnishing of money in a joint account, she held that there was no reason to distinguish the two. DBS appealed the decision and the Judge found for the Bank, establishing the point, that Joint account cannot be attached in satisfaction of a debt of one joint account holder.
The parties to a joint account have equal drawing rights. The right to draw on the account must be exercised jointly in the holders’ names, unless one or more of them is authorized to withdraw solely[16] as per the mandate instruction.
In Jackson v White & Midland Bank Limited[17] the court held a defendant bank liable for honouring a forged cheque that had the signature of one of the two joint account holders. The facts were that, the Claimant who was then pursuing a negotiation with the 1st Defendant to become a partner in his business, opened a joint account with the 1st Defendant at the 2nd Defendant Bank where he was paying monies into. As part of the processes of opening this joint account, the parties signed an account mandate, which stipulated that cheques had to be signed by both parties. The 2ndDefendant Bank honoured some cheques bearing the forged signature of the claimant which was drawn on the joint account. Negotiations having broken down between the Claimant and the 1stDefendant, the Claimant sought an injunction against the 2nd Defendant bank, ordering it to reverse the debits from the joint account honoured by way of the forged cheques and a further order to the 1st Defendant to authorize the 2nd Defendant bank to in future, honour cheques drawn by the claimant alone.
Parke J held that “…the Bank made an agreement with the [Claimant] and the first defendant jointly that it would honour any cheques signed by them jointly, and also a separate agreement with the claimant and the first defendant severally that it would not honour any cheques unless he had signed them. It follows, therefore, as the Bank has honoured cheques not signed by the [Claimant], the [claimant] is entitled to sue for breach of that separate agreement”.
From the cases in support of this position and in particular in the One Investment case supra, the courts are mindful of two policy considerations that undergird their reasoning. These two policy considerations are, prejudice to the Bank (garnishee) and prejudice to the Innocent third party joint account holder. It is these two policy considerations that make the attachment of joint accounts unattractive or undesirable in those jurisdictions.
Prejudice to the Bank – In the sense that there may be the lack of a framework for determining each joint holder’s contribution to the joint account, especially so when there is no presumption that the contributions of the account holders in the joint account are equal. This will require the banks/garnishee to conduct investigations to ascertain these things and that has its own logistical and costs implications to the banks. Even if there is such a framework, it is argued, that it will result in operational and legal costs of compliance, in the sense that to ensure that third-party joint account holders are treated properly and their complaints are properly addressed, the garnishee would need to incur costs in notifying such third parties.
Prejudice to the Innocent third party joint account holder– it is argued that, where there is no framework for the third-party joint account holder to assert his or her interest in the joint account and there is also no requirement for the third party holder to be notified or informed, there is the likelihood that the proceedings will take place on the blind side of the non-judgment debtor holder and his funds will be prejudiced.
The authors are of the view that there are adequate measures under Ghanaian law to deal with the challenges posed by these policy considerations under the Civil Procedure Rules of the Courts and so these two considerations do not arise.
Position that Joint Accounts can be garnisheed
Contrary to the position taken by some of the Commonwealth countries, other jurisdictions like America, Canada and to some extent Singapore have held that merely being a Joint Account does not prevent the said account from being garnisheed or attached in satisfaction of the debt of one of the holders of the Joint account.
A recent contrasting authority in support of the garnisheeing of Joint Account is the Singaporean case of Timing Limited v Tay Toh Hin & Anor[18] where the learned Judge after a judicial survey and excursion of the laws from various jurisdictions came to the conclusion that joint accounts can be garnisheed, where there is a strong prima facie evidence that the funds in the account actually belong solely to the judgment debtor. The judge in this case departs from the position that joint accounts cannot be attached in a garnishee proceeding, and holds the view that once there is evidence that the funds in the joint account sought to be attached is for the specific person against whom the judgment has been obtained, then same can be attached by way of garnishee. The facts of this case were that, the Plaintiff was successful in an arbitral proceedings and obtained an award to the tune of US$34 million (with interest) and they obtained leave to enforce same in Singapore. The Plaintiff then obtained judgment in terms of the award and commenced enforcement processes to recover the said sum in the award. In a proceedings known as Examination of Judgment Debtor, (EJD), the Judgment Debtor told the court that he held four accounts with Standard Charted Bank, which he claimed were held jointly with his wife. At the EJD hearing, the Judgment Debtor admitted that he, i.e. the1st Defendant Judgment Debtor had a primary account that is the Xtrasaver (SGD) 0108324885, and that “moneys that were paid to him personally were put into joint account. The Judgment Debtor also acknowledged that the moneys were paid to him personally and therefore did not belong to wife. He also told the court in relation to another SCB account that, he had transferred money from to his wife for maintaining household expenses. On the basis of this evidence, the plaintiff contended that the monies in all four SCB joint accounts were in fact beneficially owned by the 1st Defendant, who treated them as his personal accounts. The Plaintiff/Judgment Creditor therefore proceeded by way of garnishee for an order for Standard Chartered Bank to show cause why the 1st Defendant’s Joint Accounts should not be attached in the garnishee process. The AR, on 16 April 2020 dismissed the summons, holding the view that despite the Judgment Creditors attempt at distinguishing the One Investment case, he was bound by same especially since establishing the relevant contributions of the joint account holders was an irrelevant consideration under Singaporean law. The Judgment Creditor appealed and the Court departing from the One investment case stated among others things that The authorities relied on in the One Investment case were readily distinguishable from the facts before it on three inter connected bases to wit “(a)Firstly, in none of the Commonwealth cases cited was there any evidence placed before the Court as to the respective account holders’ contributions to the joint account; (b) Second, none of the Commonwealth authorities involved any situations where there was a prima facie case that all of the moneys in the joint account in fact only belonged to the judgment debtor; and (c) Third, in none of the Commonwealth cases cited did the Court have to apply its mind to the effect of any evidence on the account holders’ respective contributions to the joint account. In other words, the question of what would happen if the account holders’ respective contributions were known remains open.” The court stated further that even where broad language was used in the Commonwealth authorities to suggest that joint accounts could not be garnisheed, such statements were merely obiter and were not central to the finding in those cases.
The Court concluded that “The present factual matrix, and in particular the strong prima facieevidence that the moneys in the SCB accounts belong solely to the first defendant, allows for an outcome balancing the interests of the creditor in pursuing the moneys owed him, and the interests of the non-judgment-debtor joint account holder in maintaining the integrity of his account. Given the requirements imposed at [26], there may well not be very many situations where creditors ultimately wish to pursue joint bank accounts, but that should not altogether preclude the possibility that a joint account can be garnisheed”.
In Smith v Schaffner[19] where a bank refused to hand over the content of a joint account in the garnishee proceedings, the Supreme Court of Nova Scotia had this to say “There is no reason, based on policy, equity or logic, that if the interest of the execution debtor in the “property” of the joint account is established, that a creditor should not be entitled to have the sheriff attach the execution debtor’s “interest” in the “property” by garnishee. To decline to do so, enables the debtor to artificially and unfairly hide assets from debtors and bring disrespect to the law”. The import of this dictum is that even in the face of Joint Account, if it is established by way of admissible evidence, that the judgment debtor has some interest in the account sought to be attached by way of a garnishee, then there is no reason why the execution creditor can be prevented from attaching the portion that belongs to the execution debtor against whom the enforcement is sought.
In allowing the garnisheeing of Joint Account, the law places an obligation on the other Joint Account holder other than the execution judgment debtor, to demonstrate and show his or her interest in the joint account sought to be garnisheed. Once that is successfully done, and his or her interest is ascertained, that portion will be released from attachment and not be affected by same. In the case of Leaf v McGowan[20] the Appellate Court of Illinois held that since the depositors’ use of joint account may enable them to obscure their respective rights in the fund, it was equitable to place the burden of proof on the non-debtor depositor with the knowledge of the deposits, rather than on the judgment/creditor as to ownership of the funds.
The Supreme Court of Arkansas held in the case of Hayden v Gardner[21] that a joint account could be garnisheed to a sum equal to the judgment debtor’s ownership of funds held in the joint account. This implies that, it not the entirety of the funds can be attached, but only to the extent of the judgment debtor’s interest in the funds.
The Supreme Court of Alabama has in the case of Armalite Architectural Prods v Copeland Glass Co[22] also decided in favour of garnisheeing Joint Accounts. The Court held that, a Joint Account could be garnisheed to the extent of ownership of the funds of the judgment debtor. According to the court, it was the duty of the non–judgment debtor to prove that the funds in the account, or so much of it, does not belong to the judgment debtor.
The above cited cases and many other support the garnisheeing of joint accounts but only to the extent owned by the judgment debtor without more.
Position under Ghana law
Under the laws of Ghana, there is no clear substantive statutory indication on the stance of Ghana regarding garnisheeing of Joint Accounts. The only indication is what is found in the High Court (Civil Procedure Rules) CI 47 (2004). The relevant provisions in this regard can be found in Order 47 rules 5 and 6 of the CI 47. Order 47 rule 5 which is captioned ‘Dispute of Liability by Garnishee’ provides thus “Where on a further consideration of the matter the garnishee disputes liability to pay the debt due or claimed to be due from the garnishee to the judgment debtor, the Court may summarily determine the question in issue or order that any question necessary for determining the liability of the garnishee be tried in any manner in which any question or issue in an action may be tried.” This means that in a garnishee involving a joint account, that garnishee (bank) can notify the court, that it is not liable only to the judgment debtor but the non-judgment debtor joint account holder as well since the liability of the garnishee to the joint account holders is a joint liability. This means that the garnishee is disputing that it is liable to pay and so the court must have to determine that issue and satisfy itself that the entire amount being held does not belong to the judgment debtor.
Order 47 rule 6 is captioned ‘Claims of third persons’ and its subrule 1 provides that “If in garnishee proceedings it is brought to the notice of the Court that some person other than the judgment debtoris or claims to be entitled to the debt sought to be attached or has or claims to have a charge or lien on it, the Court may order that other person to attend before the Court and state the nature of the claim with particulars of it” (emphasis ours). This means that during the garnishee proceedings any person who claims to have an interest in the joint account can notify the court and the court would have to hear and ascertain the veracity or otherwise of such claims. Therefore, in a Joint Account scenario if the judgment debtor is Account holder ‘A’, and Account holder ‘B’ makes a claim on the funds in the joint account, it means that all the funds in the account do not belong to ‘A’ and so the entire funds cannot be attached. In such a case, it is only reasonable that the Court would ascertain the interest of the judgment debtor in the account and limit the attachment to that interest only. Order 47 rule 6(2) continues thus “After hearing any person who attends before the Court in compliance with an order under subrule (1) the Court may summarily determine the question in issue between the claimants or make other order as it considers just, including an order that any question or issue necessary for determining the validity of the claim of the other person as is mentioned in subrule (1) be tried in any manner in which any question or issue in an action may be tried.” It is submitted that this position follows the line of thoughts in the Timings Limited case discussed above.
A Ghanaian Court has had the opportunity through his Lordship Justice Eric Baah[23] to pronounce on this subject in the case of Meyiri Company Limited v SIC-Financial Services and Stanbic Ghana Limited (as Garnishee).[24] In that case the learned judge in an erudite manner discusses the law from the two positions and arrives at a sound conclusion with which the authors agree, that Joint Accounts can be garnisheed once certain conditions are present. By this decision, the learned Judge has provided judicial blessing to the position in Order 47 rules 5 and 6, that it is possible to attach a Joint Account as long as the interest of the judgment debtor can be ascertained.
The facts of the Meyiri case were that, the High Court, Accra granted an application for a garnishee order nisi against Stanbic Bank (the garnishee). At the hearing of the nisi proceedings, the garnishee through its representative appeared in court and presented three statements of accounts on three accounts belonging to the Defendant/Judgment Debtor. The garnishee did not object to the payment out of the said accounts to the Plaintiff/Judgment Creditor, whereupon the Court made the Garnishee Order Absolute and asked the garnishee bank to pay out monies to the judgment creditor. The garnishee bank later resurfaced with an application praying the Honourable Court to set aside the Order Absolute in respect of one of the three accounts. The reason being that, the said account was a joint account held jointly by the Defendant/Judgment Debtor and another person who was not party to the suit. This application was vehemently opposed by the Plaintiff/Judgment Creditor. The learned High Court judge therefore invited both Counsel to address the Court through their written submissions. The issues that fell for determination were (i) whether or not a joint account can be subject of a garnishee and (ii) whether or not a garnishee bank has the standing to apply to the court for protection of a joint account holder who is not party to the garnishee proceedings.
The learned Counsel for the Garnishee Applicant argued that per the garnishee order nisi, the Garnishee Applicant was obliged to submit bank statements of the judgment debtor only and no other person. In the Garnishee Applicant’s view therefore, the statement on the Joint account ought not to have been submitted at all, and the submission of the statement was therefore done in error. The Garnishee Applicant while agreeing with the Respondent that by the rules of Court,[25] it was the party affected by the garnishee order absolute (in this case the non-execution debtor joint account holder) who had the capacity to apply to set aside the order, it argued that the Garnishee Applicant also has standing since it was the Garnishee Applicant that violated the duty it owed to the other account holder. The Garnishee Applicant fortified their position by citing the long standing principle of English law that a joint account cannot be garnisheed. They placed reliance on the case of Macdonald v The Tacquah Gold Mines Company as well as the case of Catlin v Cyprus Finance Corp (London) Ltd, cited supra. The Garnishee Applicant concluded that it would be contrary to justice to use the funds held in a joint account to settle the judgment debt since the applicant bank does not know the terms underlying the account. The summary of the Applicant’s argument essentially is that, to the extent that the joint account belongs to two or more persons, some of whom are not party to the suit in which the attachment is made, the joint account cannot and ought not be subject to attachments.
In opposing the application, Counsel for the Plaintiff/Judgment Creditor argued forcefully that, the general position of the law is that the garnishee would attach an account standing to the credit of the execution debtor, regardless of the designation. Counsel was fortified in his position by the case Timing Limited v Tay Toh Hin & Another [2020] SGHC 169, where the judge after surveying the laws concluded that, joint accounts can be garnisheed, as long as there is a strong prima facie evidence that the funds in the account wholly belong to the judgment debtor. Counsel provided evidence and argued strongly that the funds in the joint account wholly belong principally to the judgment debtor and can therefore be used to satisfy the judgment debt. The evidence showed that in the said joint account, huge transfers had been made by the judgment debtor with little or no transaction by the other non-judgment debtor joint account holder. Counsel for the Respondent further contended that the failure of the other account holder to come forward to challenge the process as per the rules and the act of the Garnishee Applicant as a disinterested party, taking upon itself what the joint account holders should have done, coupled with the sole transfers by the judgment debtor, led to the obvious conclusion that the judgment debtor is the beneficial owner of the account. He argued seeking to cure a mischief that should the court hold that a joint account proven to beneficially belong to a judgment debtor is not attachable, same will encourage debtors to insulate their assets by holding them in joint accounts and therefore frustrate execution against them.
The Honourable Court had the duty to determine which of the two positions is favourable and convincing. The learned Judge rejected the Commonwealth position and held that, that view was not of a general application and hence not binding on him. His Lordship said thus “I also take the position that the Commonwealth precedents anchored on Macdonald v The Tacquah Gold Mines Company are obiter theta. They did not address the issue where the percentage of deposits by the joint account holder can be ascertained, to facilitate tracing of ownership of the property in the funds, and where the evidence establish that the deposits have been made only by one party who is in fact the beneficial owner of the account.” The learned Judge further said “The Commonwealth authorities critically failed to address the issue of joint accounts to artificially and unfairly hide assets from the creditor, and thereby frustrating enforcement of law. I am not persuaded by the Commonwealth authorities relied on by the applicant bank and the High Court decision relied on by the judgment debtor. Their application will facilitate hiding of funds, fraud and frustration of judgment enforcement. There is no earthly reason why funds of a judgment debtor should not be attached to defray his debts, merely on account that it is being held jointly with the funds of another.” His Lordship clearly took a position that to adopt the Commonwealth position will imply people hiding their assets and funds in the name of joint account and preventing execution creditors from accessing the funds. The position is made clearer when His Lordship says “If the Commonwealth position prevails, a shrewd but dishonest person may enter the business world by opening joint accounts which are fully funded, and sole accounts which are poorly funded, and when a judgment is to be enforced against them, raise the non-attachment of joint accounts.”
The learned Judge proposed that in such instances the veil should be lifted to ascertain how much each of the joint account holders have contributed. He succinctly puts it thus “Where the veil is lifted and the share of the account holders can be traced from the deposits, a partitioning of the accounts can be ordered, based on the percentage of ownership of the funds as evidence of the unveiled account will reveal.” The Court gives a warning to persons who open joint accounts and the risk therewith. He said “A person who decides to open a joint account must take his partner as you find him or her. If you open a joint account with a person prone to debts or bankruptcy, you cannot prevent investigation of the account to reveal the bona fide interests of the account holders. It will amount to fraud and unjust enrichment to do so. In my view, the law as applied in the Canadian and American jurisdiction (cited supra), and applied ought to apply in Ghana, and I so hold with regard to this case. I hold that joint accounts can be garnisheed in Ghana.”
Guiding procedure and principles for garnisheeing Joint Accounts
The respected Judge upon combining the procedure under Order 47 of CI 47 and the principles in the Timing Limited case as well as other American and Canadian cases which he adopted, gave some guidelines and procedures to be followed when a joint account is a subject matter of a garnishee which processes will be useful for banks and all institutions capable of being garnisheed. The learned judge said thus…. “The procedures and principles for garnisheeing joint accounts in Ghana should be as follows;
- When a judgment creditor applies ex-parte for a garnishee order nisi, the garnishee bank shall be served for the period stipulated by the law.
- Upon receipt of the garnishee order nisi, the garnishee bank shall serve notice on the non-judgment debtor joint account holder, indicating the order received, and a request that he files necessary processes where applicable, to object to the whole or partial payment from the joint account in satisfaction of the judgment debt.
- The garnishee shall then serve the court notice of the status of the accounts a joint account with the notice to the non-judgment debtor joint account holder as annexure.
- On receipt of the notice from the bank, the court shall make an order directing the non-judgment debtor joint account holder, to appear in court to assist in tracing and partitioning of the deposits lodged in the account where same is practicable.
- At the next returned date, the garnishee bank shall provide particulars on deposits into the account, if it has such particulars. If it does not have such particulars, the onus falls on the judgment debtor and non-judgment debtor account holder to provide evidence on deposits into the account and show cause why funds therein or portions thereof should not be used to satisfy the judgment debt fully or partly.
- Where the garnishee bank and the judgment debtor and non-judgment debtor joint account holder fail to show cause why the funds in the accounts should not be partially or fully used to defray the debt, the court shall settle on the assumption that the funds in the account are owned in equal shares to the joint account holders.
- Where the judgment creditor applicant is able to prove by provable evidence the actual or probable percentage of the funds owned by the judgment debtor, same may be applied to defray the debt or a portion thereof.
- When the judgment creditor applicant is able to show that the judgment debtor owns all the funds in the joint account, the entire funds shall be applied to the defrayment of the debt, subject to an undertaking to be filed by the judgment creditor that he shall reimburse the garnishee bank and the joint account holder for all losses, and expenses and costs to be incurred, should it turn out that the funds could not be used to settle the judgment debt.”
It is suggested that these guidelines when followed would not result in any unfair prejudice to both the garnishee bank and the third-party non-judgment debtor joint account holder.
The authors are not oblivious of the fact that, being a High Court decision, the Meriyi case decided by the respected Justice of Appeal is binding only on the lower Courts. It is not binding on other courts of coordinate jurisdiction. It is possible therefore, another High Court may depart from the reasoning in the Meriyi case. It is hoped that a Court higher than the High Court, would get the opportunity to pronounce on this and put the matter beyond controversy.
Conclusion
From the discussion of the authorities above and the recent erudite decision delivered in the Ghanaian case of Meyiri Company Limited v. SIC-Financial Services and Stanbic Ghana Limited (as Garnishee) cited supra, there is no doubt, that joint accounts can be subject to order for garnishee under Ghana law, and that when same is attached, the court must be satisfied with admissible evidence that a portion of the funds attached does not belong to the judgment debtor.
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[1] Random House Webster’s Dictionary of the law
[2] Black’s law dictionary
[3] ibid
[4] [1851] 10 CB 645
[5] BJ Da Rocha and CHK Lodoh, Ghana Land Law and Conveyancing 2nd edition 262
[6] ibid
[7] [1938] 3 All ER 491
[8] [1996] 2 NSWR 289
[9] [1977] HKLR 556
[10] [1995] NI 351
[11] 2004 SC 1877
[12] [1968] 2 All ER 1073 and [1980] 1 All ER 393
[13] [1884] qbd535
[14] [1983] ALL ER 809
[15] [2016] 5 SLR 923
[16]Olabanjo O. Ayenakin, Temidayo Akindejoye, Joint Account Contract: Issues, Law and Challenges
[17] [1967] 1 Lloyd’s Report 68
[18] [2020] SGHC 169
[19] [2007] NISSC 210
[20] [13. III.App.2d 58, 1957
[21] [381.S.W;2d 752, 1964]
[22] [601] so 2d 414, 1992
[23] Justice of the Court of Appeal sitting as an additional High Court Judge
[24] Unreported Suit No, CM/RPC/0307/20
[25] Order 47 rule 6 C.I 47
