Abii National Savings & Loans Limited v Aboafo Buying Company Limited and Others (GJ-CM/INTD/0328/2025) [2025] GHAHC 101 (27 June 2025)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION 6) HELD IN ACCRA ON FRIDAY THE 27TH DAY OF JUNE, 2025 BEFORE HER LADYSHIP JUSTICE SEDINA AGBEMAVA SUITNO.: GJ-CM/INTD/0328/2025 ABII NATIONALSAVINGS & LOANS LIMITED … PLAINTIFF VRS. ABOAFOBUYINGCOMPANY LIMITED&6ORS.… DEFENDANTS MADAMALBERTAANYIGBA … CLAIMANT JUDGMENT Onthe5th ofMarch, 2025,theClaimant hereinMadam Alberta Anyigba filed anotice ofclaim in the registryofthis Court. The notice readsasfollows: PLEASE TAKE NOTICE that MADAM ALBERTA ANYIGBA, the Claimant herein claims that the property described as No. 148 Block 5 Section 115 situate at Adjirigano in the Greater Accra Region of the Republic of Ghana on Registry Map No. 001/115/1992 AND Certificate No. GA 31801 attached in execution of the Judgment in this suit is a spousal property and not the sole property of the Defendant/Judgment Debtorand that same cannot be attached. Page 1of9GJ-CM/INTD/0328/25AbiiNationalSavings&LoansLimitedVrs.AboafoBuyingCompanyLimited&6Ors. In her Affidavit of interest (which she wrongfully titled Affidavit of Claimant) filed on the 16th of May, 2025 the Claimant deposed that she is the lawful wife of the 4th Defendant, George Mate-Kole in the substantive suit, RPC/236/2015. According to her, it came to her notice that their matrimonial property No. 148 Block 5 Section 115, Adjirigano was to be attached in execution of the Judgment. Her claim is to a part of the property as evidenced by her own notice of claim. Her claim is that she has been customarily married to the 4th Defendant Judgment Debtor since 1996, whichunionis blessed withaTwenty-Seven(27)yearold son. The Parties converted their marriage into an ordinance marriage in 2022. She therefore praysthe Court for her interest to be protected by discharging the property fromattachment. The Execution Judgment Creditor filed an affidavit of dispute (again wrongly entitled an affidavit in opposition) and deposed that the 4th Defendant Judgment Debtor voluntarily executed a mortgage agreement with the Bank when he offered his landed property assecurity forthe loan. The Execution Creditor further deposed that the property used as security is the personalself-acquired propertyoftheJudgment Creditorand not joint property. The Judgment Creditor believes that the Claimant’s intervention is a deliberate attempt calculated to frustrate the execution process and asked the Court to dismiss theclaim. The law is that interpleader actions are held to enable the Deputy Sheriff obtain a relief and get a decision from the Court as to the proper person to whom he has to release the property. It is therefore not an ordinary action and is meant for the Page 2of9GJ-CM/INTD/0328/25AbiiNationalSavings&LoansLimitedVrs.AboafoBuyingCompanyLimited&6Ors. benefit of the Deputy Sheriff to give him a relief and know the right person he ought torelease thepropertyto. InSalama vSharani [1973]2GLR 364,Abban J(ashe thenwas) held that “Interpleader proceedings should not be confused with an ordinary action. The most important object of these interpleader proceedings is to enable the deputy sheriff, who has seized the property and is now in possession thereof, to obtain a relief and to get a decision of the court as regards the person to whom he has to release the property. The claims in respect of the property seized are made against the deputy sheriff and he is, in the technical sense, the defendant since the rival claims are being made against him. So that in a way the interpleader proceedings are intended for the benefit of the deputy sheriff, inasmuch as the decision of the court in the proceedings, as I have stated, would give him a relief and would also enable him to knowtheright persontowhom he should releasethe property. Iwill give abrief background tothe genesisofthis claim. The Plaintiff in the substantive action brought an action against Six (6) Defendants amongst whom was the 4th Defendant. He had offered his property as security for the loan which was contracted. When the 1st Defendant failed to fulfil its obligation to the Plaintiff by liquidating its debt, the Plaintiff sued. The suit was settled and the termsofsettlement entered asthe Consent Judgment ofthe Court. Again, the 1st Defendant defaulted on the agreed terms in the Consent Judgment. Plaintiff attempted then to levy execution on the security but this was fiercely resisted by the 4th Defendant. He contended that he had not instructed any person as Page 3of9GJ-CM/INTD/0328/25AbiiNationalSavings&LoansLimitedVrs.AboafoBuyingCompanyLimited&6Ors. his Counsel to act on his behalf in the suit, leading to the Terms of Settlement and had no notice ofthesuit. The Court allowed him to file a defence and at the trial, the lone issue of whether or not the Plaintiff could attach the 4th Defendant’s property in execution of the 1st Defendant’s debt was determined. The Court found for the plaintiff and it is in its second attemptto levyexecutionthat this claim hasbeen filed. It has been submitted on behalf of the Claimant that the matrimonial property cannot be levied in execution of debt owed by one Party without the consent of the otherspouse. Counsel placesreliance onSection 47of the Land Act, 2020Act 1036. I do not think that that is quite the provision in the Act. I think the correct statement in the law is that a spouse shall not transfer any interest in land or enter into any transaction in relation to the land without the written consent of the other spouse, unless thereisan agreement tothe contrary. This provision is different from saying that execution cannot be levied on a matrimonial propertywithout the consent ofthe otherspouse. I must put it on the record in clear terms that this agreement was executed by the 4th Defendant Judgment Debtor long before the passage of this relatively new Land Act. The provisions in Act 1036 cannot therefore be applied to the facts of the present case. Counsel for the Claimant again submitted that the Courts will not allow the sale of the property even where the title documents bearsthe name ofthe husband only. He relied on the case of BDC/43/12 Judge Akua Kuenyehia v NDK Financial Services Ltd. Page 4of9GJ-CM/INTD/0328/25AbiiNationalSavings&LoansLimitedVrs.AboafoBuyingCompanyLimited&6Ors. In the first place, the Claimant Counsel gave a wrong citation for the case and with all due respect, that case did not lay down any such proposition being urged on the Court. I doubt that Counsel took the time to digest the case before relying on it as authorityin this instance. He only cut and pasted certain portions ofthe Judgment without attribution, passing it off as his own. This made the address filed for the Court on behalf of the Claimant disjointed and difficult to comprehend because the ideas could not smoothly dovetail intoeach other. I will decline to make any further comment on the unfortunate conduct because I believe that Counsel is not ignorant of the fact that there is a duty imposed on all Counselswho practice beforethe Courtsthat theyought toact with honour, candour and integrityat alltimes. At any rate, that case is a High Court case, and even though it is viewed as a very compelling authority, the Court has coordinate Jurisdiction with this one hence the authoritymay at best be persuasive but notbinding onthis Court. I must however point out that that suit can be distinguished from the present one. The Court found in that matter that the lease of the matrimonial home was granted inthe joint names ofthe Parties. The property had never been treated as the personal property of her husband and she had made substantial contribution towards the acquisitionofthe property. Further, Judge Akua Kuenyehia brought a proper action to assert her rights, she did not file an interpleader as was done in this instance. I have earlier stated that an Interpleader action is basically in the interest of the deputy sheriff. The object is only togive the Sheriff relief, not todecide rightsofParties. Page 5of9GJ-CM/INTD/0328/25AbiiNationalSavings&LoansLimitedVrs.AboafoBuyingCompanyLimited&6Ors. In any event, the Claimant has been unable to prove to the satisfaction of the Court that she made any substantial contribution to the property, though this would not have been a material consideration for the Court if she had been able to prove that thepropertywas designated asmarital property. The Claimant had deposed that she got married to the Defendant Judgment Debtor in 1996 and shared a twenty seven year old son with him. She attached her marriage certificate dated 17th February, 2022 to her affidavit of interest as Exhibit ‘B'. She did not even attach a photograph of her son as a product of her union with Mr. Mate- Kole, neither did she attach any photographs of her customary marriage celebration because I am confident that as at 1996, capturing such images would be rife and it wouldnot be unreasonable toexpect suchproof toexist. As held in Barkers-Woode v Nana Fitz [2007-2008] SCGLR 879, the common law has always followed the common sense approach that the burden of persuasion on proving all factsessential toany claim liesonwhoeveris making the claim. As Counsel for the Execution Judgment Creditor posited, having a child is not necessarily an incident ofmarriage. A child can be borne outofwedlock. That bare assertion without morethat she has a Twenty-Seven(27) yearold sonfrom the marriage cannot be proof that she married her husband when she said she did. The only evidence she has been able to provide is her 2022 marriage certificate and thepropertywas mortgaged longbefore2022. Itcannot thereforequalify asmarital propertyand I so hold. In any event, her husband had always treated the property as his personal property. If it was indeed marital property, that would have been one of his defences when he Page 6of9GJ-CM/INTD/0328/25AbiiNationalSavings&LoansLimitedVrs.AboafoBuyingCompanyLimited&6Ors. challenge the execution that was being levied when the 1st Defendant defaulted. He had willingly mortgaged the property to the Bank and the title deed to the property was in his sole name. All these pieces of evidence goes against the Claimant as it shows that the 4th Defendant in the substantive action was the sole owner and it was notacquired as joint property. Counsel for the Plaintiff also urged on the Court not to consider the claim because the Affidavit of Interest was not commissioned. For this reason, says Counsel, it is defectiveand cannot formthe basis ofthe claim. Even though I am in Agreement with Counsel, I am of the view that it is a more prudent course of action to consider the Interpleader on its merits at this stage instead of just striking it out as Counsel himself failed to point out the defect during the proceedings. Order 20 r 2 and 14 (2) & (3) of the High Court Civil procedure RulesCI 47,asrelied onby ExecutionCreditor’s Counselis in thefollowing terms; Affidavits shall be sworn before a Judge, Magistrate, Registrar, Commissioner for Oaths, any officer empowered by these Rules or by any other enactment to administeroaths. 1) Any document to be used in conjunction with an affidavit shall be exhibited and notmerelyannexed orattached to theAffidavit. (2) Any exhibit to an Affidavit shall be identified by a certificate of the person before whomthe affidavit is sworn. Forfailing tocommission her Affidavit, the Claimant relied onan invalid affidavit. It wouldmeanthat therewas no forcebehind the affidavit she founded her claimon. In the Republic v Regional House of Chiefs; ex parte Aaba [2001-2002] 1 GLR 220 AdzoeJSC held that Page 7of9GJ-CM/INTD/0328/25AbiiNationalSavings&LoansLimitedVrs.AboafoBuyingCompanyLimited&6Ors. “The rules of the Supreme Court and all other Courts are there to be observed. They form an important component in the administration of justice, and the Courts must not, as a general rule take lightly any non-compliance with them, even though technicalities arenotto be permitted toundermine the need todo justice” For the reasons given above, the claim fails and it is dismissed. I am unable to release the property from attachment and the Deputy Sheriff is at liberty to resume theexecution process. CostsofSevenThousand Ghana Cedis (GH¢7,000.00)against theClaimant. (SGD) SEDINA AGBEMAVA J JUSTICEOF THE HIGH COURT COUNSEL 1. FELIXKOBLAWORNANYEHFORTHE CLAIMANT- PRESENT 2. ABUBAKAR SEIDU HOLDING BRIEF FOR SAMUEL ATUQUAYE QUAYE FORTHE JUDGMENT CREDITOR -PRESENT LISTOF CASES 1. SALAMAVRS.SHARANI[1973] 2GLR 364. 2. BDC/43/12 JUDGE AKUAKUENYEHIAVRS. NDK FINANCIALSERVICES LIMITED. Page 8of9GJ-CM/INTD/0328/25AbiiNationalSavings&LoansLimitedVrs.AboafoBuyingCompanyLimited&6Ors. 3. BARKERS-WOODEVRS. NANA FITZ[2007-2008] SCGLR879. 4. REPUBLICVRS. REGIONALHOUSE OFCHIEFS; EX PARTE AABA [2001- 2002]1GLR 220. STATEDLAW 1. SECTION47THE LANDACT, 2020ACT1036. 2. ORDER 20 RULE 2 AND 14 (2) & (3) OF THE HIGH COURT CIVIL PROCEDURE RULESCI 47. Page 9of9GJ-CM/INTD/0328/25AbiiNationalSavings&LoansLimitedVrs.AboafoBuyingCompanyLimited&6Ors.