Sereboe v Koranteng and Another (CM/MISC/0534/2022) [2025] GHAHC 107 (7 March 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL DIVISION, HELD IN ACCRA ON FRIDAY THE 7TH DAY OF MARCH, 2025 BEFORE HER LADYSHIP JUSTICE YAA ONYAMEYE GYAKOBO JUSTICE OF THE COURT OF APPEAL SITTING AS AN ADDITIONAL HIGH COURT JUDGE SUIT NO.CM/MISC/0534/2022 EDWARD AGYEKUM SEREBOE - APPLICANT VRS CLEMENT NANA ADU KORANTENG - RESPONDENT AND STEPHANIE E. EMEFA KORANTENG - CLAIMANT --------------------------------------------------------------------------------------------------------------------- JUDGMENT --------------------------------------------------------------------------------------------------------------------- The genesis of the present interpleader proceedings is uncomplicated. The Defendant (Judgment Creditor) herein filed an application for warrant to possess charged property and for an order to realise charged property under sections 62 and 64 of the Borrowers and Lenders Act, 2020 (Act 1052). Subsequently, a judgment of this court, differently constituted, dated 19th January 2023, granted the following reliefs: 1 A. The principal amount involved and due the Applicant is GHS1,185,500.00 less any payment made; B. Interest on the GHS1,185,500.00 at the current bank rate per annum; C. In the alternative, the Applicant is granted warrant to seek the assistance of the police to take possession of the plot of land which was used as a collateral and described in the application. However, the plot should be revalued at the expense of the borrower and if the value is more than the outstanding principal plus the interest and any other costs, the difference should be refunded to the Respondent. Subsequent to the delivery of the judgment there was a flurry of applications filed by both parties. When the Respondent/Judgment Debtor in the original suit failed to pay the judgment debt, the Defendant herein pursuant to the judgment of 19th January 2023, sought the assistance of the Police to take possession of the plot of land situate, lying and being at Ofankor in Accra, containing an approximate area of 0.15 acre with the digital address GW-0296-3448 which was used as collateral and described in the application. The Plaintiff (Claimant) herein filed a Notice of Claim on 18th July 2023, which was disputed by the Defendant. Consequently, this Court, differently constituted, ordered the Plaintiff to file her affidavit of interest and the Defendant his affidavit of response. Both parties complied with the orders of the court and on 18th June 2024, both parties were ordered by the court to file their witness statements, pretrial checklists and documents they intend to rely on in the interpleader proceedings. EVIDENCE-IN-CHIEF Consequently on 29th July 2024, a case management conference was held and the matter was adjourned for hearing. In her evidence in chief, the Plaintiff (Claimant) testified that she got married to the Respondent/ Judgment Debtor on 30th October 2010, and that they 2 have three children who live with her at her matrimonial home at an unnumbered house, North Ofankor, Hill Estate, Accra, the subject matter of the present claim until she was driven out with her children, as part of execution processes and remains locked out of same. It was also her evidence that her marriage with the Judgment Debtor is subsisting and known to the Defendant. She further testified that after her marriage to the Judgment Debtor they jointly acquired a piece of land in Ofankor and put up their matrimonial home where they lived with their children, and that after the purchase of the land the documentation was done in her husband’s name, and that she consented to same. It was also her case that on 3rd July 2023, she together with her children were removed from the matrimonial home in a purported execution of a judgment. She testified that she was never served with any processes of the Court and that no posting was ever done on the matrimonial house and no court action involving the Judgment Debtor had been brought to her attention until her unlawful eviction from her matrimonial house by officers of the court. She further testified that upon enquiries, she was informed that her husband had used the matrimonial property to secure a loan facility he obtained from the Defendant, and that when he failed or refused to honour his obligations under the agreement, the court granted the Defendant leave to take possession of the property without any regard to her interest in the house. It was also her evidence that she had no knowledge of the proceedings in Suit No. CM/MISC/0534/2022 which gave rise to the judgment. She contended that the property was jointly acquired with the Judgment Debtor in the course of the marriage and forms part of their jointly acquired properties. She also contended that she personally contributed towards the acquisition and development of the property and is thus entitled by law to an equitable share in the said property. It was also her case that having regard to her interest in the said property, she ought to have 3 been consulted for her consent before the arrangements that was entered into by the parties. It was her case that the failure of the Defendant and Judgment Debtor to secure her consent before the mortgage facility was executed rendered it null, void, ineffective and consequently wholly unenforceable. She testified that the purpose for building the house was for the parties to use it as their matrimonial home and the Defendant ought not to be allowed to deprive her of her just and equitable entitlement in the property and that the Defendant had a duty to inquire about the nature of the Judgment Debtor’s interest in the property before agreeing to accept the property as security for the loan especially when he knew or ought to have known that he was married to her and that the property was their matrimonial home. In his evidence the Defendant testified that the Judgment Debtor required financial assistance from him which he agreed to provide and that they subsequently executed an agreement dated 28th January 2022 and a sum of GHS1, 200,000.00 was advanced to the Judgment Debtor for a period of one month. It was also his evidence that by a mortgage dated 28th January 2022, the Judgment Debtor used his property as security for the loan. It was his evidence that the mortgage was duly stamped and registered and that he registered the charge at the Collateral Registry under the Borrowers and Lenders Act, 2020 (Act 1052). He further testified that on 19th January 2023, this court granted an application for warrant for police assistance to take possession of the property which was used as security to secure the facility and that in the process of disposing of the property to satisfy the debt, a notice of claim was filed by the Plaintiff who claimed that the property is a matrimonial property and as such she has an interest in it. The Defendant also testified that the Judgment Debtor made him aware that he owned two properties and that the mortgaged property is his sole property and furnished him with a lease he executed with one Nii Kortey Boi II Ofankor Mantse and in addition 4 furnished him with a registered documentation of another property he owned with his wife registered at the Collateral Registry which was acquired jointly in 2015 located at North Ofankor, Accra and has been their matrimonial property since. It was also his evidence that the Judgment Debtor informed him that the subject of the mortgage was for commercial purposes to supplement his income and that the Plaintiff and the Judgment Debtor had at all material times been living in the matrimonial home at North Ofankor and the lease in respect of the mortgaged property was executed in 2021 contrary to the claim of the Plaintiff that they had been living in the mortgaged property since they got married. It was also his evidence that the Plaintiff and Judgment Debtor moved into the mortgaged property when they became aware of his intention to sell the property in satisfaction of the judgment debt. He further testified that the Judgment Debtor did not require consent from the Claimant since he has the right to solely deal with a property that belongs to him. ADDRESSES Counsel for the Defendant filed his written address however Counsel for the Plaintiff declined to address the Court. ISSUES This court must resolve the following issues in order to arrive at a conclusion: 1. Whether or not the property which is the subject matter of the mortgage is jointly owned by the Plaintiff and the Respondent/ Judgment Debtor. 2. Whether or not the property which is the subject matter of the mortgage is the matrimonial home of the Plaintiff and the Respondent/Judgment Debtor. 3. Whether or not the Respondent/Judgment Debtor should have sought the prior consent of the Plaintiff before mortgaging the property to Defendant. 5 ANALYSIS OF EVIDENCE AND LAW The court must resolve whether or not the subject matter of the present suit is jointly owned by the Judgment Debtor and the Plaintiff. It is the view of the court that the other issues raised above are subsumed by the first issue. In her evidence in chief the Claimant stated in the relevant paragraphs of her witness statement as follows: “4. I say that I got married to the Respondent/Judgment Debtor sometime on the 30th day of October 2010 and have three children who live with me at the matrimonial home at an unnumbered house, North Ofankor, Hill Estate, Accra, the subject matter of this claim until I was driven out with my children as part of execution processes and remain locked out of same. 5. I say that my marriage with the Respondent/Judgment Debtor is subsisting and known to the Respondent/Judgment Creditor at all times. 6. I say that after my marriage with the Respondent/Judgment Debtor, we jointly acquired a piece of land in Ofankor and put up our matrimonial home, where we lived with our children aged 11 years, 10 years and 8 years respectively. 7. I say that after the purchase of the land, the documentations were done in my husband’s name, which I accordingly consented to as same was intended for our matrimonial home.” She further testified as follows: “11. I say further that I was never served with any processes of the Court, or no posting was ever done on the matrimonial house, and no court action involving the Respondent/Judgment Debtor has been brought to my attention until the unlawful ejection from my matrimonial house by the officers of the court with police assistance at the direction of the Respondent/Judgment Creditor. 6 12. I say that upon further enquiries, I was informed that my husband had used the subject matter matrimonial property to secure a loan facility he obtained from the Respondent/Judgment Creditor. 13. I further say that I discovered it was when the Respondent/Judgment Debtor failed, refused, and/or neglected to honour his obligations under the agreement with the Respondent/Judgment Creditor that the court granted leave to take possession of the property without any regard to my interest in the said property. 14. I say that I had no knowledge of the proceedings in Suit No. CM/MISC/0534/2022 which gave rise to the judgment that the Respondent/Judgment Creditor sought to execute against my interest in and / or right over the said property as a joint owner. 15. I say and contend that the said property, which was the subject of Suit No. CM/MISC/0534/2022 was acquired jointly with the Respondent/Judgment Debtor in the course of our marriage, and to the extent, the same forms part of our jointly acquired properties. 16. I say that I personally contributed towards the acquisition and development of the said matrimonial property, and I am therefore entitled by law to an equitable share in the said property, the subject matter of this suit now and in the event of the dissolution of the subsisting marriage between myself and the Respondent/Judgment Debtor. 17. I say and further contend that, having regard to my interest in the said property, I ought to have been consulted for my consent before any such arrangement was entered into by and between the parties in suit No. CM/MISC/0534/2022.” 7 From the Plaintiff’s evidence the fact that she is married to the Judgment Debtor and has been married to him since 2010 is not in dispute. In effect the Plaintiff’s evidence is to the effect that since she has been married to the Judgment Debtor for a period of about fourteen years the subject matter of the dispute is jointly owned. She did not offer any evidence of her contribution to the acquisition of the property in question save what I have outlined in her evidence in chief in paragraph 16 above. Apart from that she did not proffer any documentary evidence. In the unreported decision of GILBERT ANYETEI v. SUSSUANA ANYETEI CIVIL APPEAL NO. J4/67/2021 DATED 2ND MARCH 2023, which related to the distribution of property on dissolution of a marriage, the Supreme Court per Pwamang JSC said as follows: “The key words are jointly acquired during the marriage. Here again, an unexplained impression has been created that article 22(3) (b) refers to any property acquired during the marriage, thereby muting the word “jointly””. Thus the burden lies on the Defendant to disprove the Plaintiff’s evidence and prove his claims. From the evidence in chief of the Defendant he testified that the Judgment Debtor solely owned the property. His evidence was as follows: “3. By an agreement prepared and executed by both parties in the presence of witnesses dated 28th January 2022, an amount of GHS1,200,000 (one million, two hundred thousand Ghana cedis) was advanced to Judgment Debtor for a period of one month, (Marked and attached Exhibit “1” is a copy of the agreement dated 28th January 2022). 4. By a Deed of Mortgage dated 28th of January 2022 the Judgment Debtor used his property Property 1 as described in the Mortgage Deed as security for the loan which was duly stamped and registered in accordance with law. (Marked and attached Exhibit 2 is a copy of the deed of Mortgage) 8 5. On the 2nd day of February, 2022, I registered the charge over the Judgment Debtor’s Property 1 at the Collateral Registry under the Borrowers and Lender Act, 2020 (Act 1052). 10. That in the process of taking steps to dispose of the Property 1 to satisfy the debt owed me by the Judgment Debtor a notice of claim filed by the Claimant on the 23rd November 2023 was brought to my attention. 11. I filed a notice of dispute to the claim of the Claimant on the 19th of December 2023. 12. The Claimant in her affidavit of interest claims that the property 1 is a matrimonial property and as such she has interest in it on the basis that she is married to the Judgment Debtor. 13. The Judgment Debtor has been the sole beneficial owner of the Property 1 and represented same at all material times and never opposed to same being used as security to access the loan from me. 14. At the time Judgment Debtor was executing the agreement, he intimated to me that he owns two properties and that one property is solely for him and the other is in joint ownership with the Claimant. 15. In further proving that he is the sole beneficial owner of the property 1, he provided a Deed of Lease executed and dated on the 24th day of June, 2021 between himself and Nii Kortey Boi II Ofankor Mantse Head and lawful representative of the Awulemonaa family of Ofankor. (Marked and attached as Exhibit 4 is a copy of the deed of Lease). 16. Further to cement his claim that the other property’s (property 2) ownership was between him and his wife he provided a registration of the property at the 9 collateral registry. (Marked and attached as Exhibit 5 is a copy of the Search Report) 17. The said property which is a four bedroom single storey semi-detached house addressed H/No. F9/3 Franco Estates, North Ofankor (Property 2) Accra was acquired in 2015 in their joint names and has been their joint matrimonial property since. 18. The Judgment Debtor had at all material times indicated to me that the purpose of the Property 1 was for commercial purposes so as to supplement his income. (Marked and attached as Exhibit 6 is a copy of the pictures of the building). 19. The Claimant and Judgment debtor at all material times been living at Property 2 together with their three children and that Property 1’s Deed of lease was executed on the 24th of June, 2021 which is in variance to the claim by Claimant that she has been living in property 1 since they married. 20. In reference to paragraph 6 of Claimant’s affidavit of interest Claimant stated that the property 1 was acquired right after marriage in 2010 whereas the deed of lease of this property indicates that it was acquired in 2021. 21. This is in variance of the claim since property 2 was rather bought in 2015 as per the search records at the Registry, Property 1 was rather bought about eleven (11) years after their marriage hence Claimant’s claim that it was right after marriage is inaccurate. 22. In reference to paragraph 7 of their affidavit of interest this cannot be accurate since there was already a matrimonial home that they were living in and in their joint names and hence Claimant cannot indicate that she consented for Judgment Debtor to have his name on the documents for property 1 as their matrimonial home. 10 23. At all material times their matrimonial home has always been property 2. 24. In reference to paragraph 15 of the affidavit of interest property 1 is solely for Judgment Debtor and same was acknowledged by him and that it was for commercial purposes and not a matrimonial property. 25. Judgment Debtor and Claimant only moved into Property 1 in dispute on hearing of my intention to sell the said property in satisfaction of the judgment in order to frustrate my benefit of the judgment as granted by this honourable court. 26. The Claimant has a place of abode to stay since Property 2 is available at all times to her and at no time has, she been stranded as she purports this honourable court to believe. 27. Since the two properties between the Claimant and the Judgment Debtor - one solely for Judgment Debtor (Property 1) and the other in their joint names (Property 2) any potential interest of the Claimant may not be affected if the honourable court orders for the sale of Property 1. 30. In reference to paragraph 21 of the Claimant’s interest, the search report from Judgment Debtor came about because of my inquisition of the ownership of the property 1 which made Judgment Debtor indicate to me that the property is his hence has the documents in his name alone as compared to the one of property 2 which had both of their names on it. 34. I believe the Judgment Debtor is the sole beneficial owner of the Property 1 and can decide to deal with the property whatsoever without seeking consent from the Claimant since Claimant has no interest in the Property 1 and thus Judgment Debtor has the right to own a property individually irrespective of whether married or not”. 11 Even though the Plaintiff had previously testified, with reference to the mortgaged property, that she jointly acquired a piece of land at Ofankor with the Judgment Debtor and built their matrimonial home under cross examination she said she moved there in 2021. Then under further cross examination she admitted that the property described in Exhibit 5 is for both her husband and herself and that has been their matrimonial home. The following ensued under cross examination on 8th November 2024: “Q: Per Exhibit 5, the property is for both you and your husband. Is that correct? A: Yes. Q: And that has been your matrimonial home, is that correct? A: Yes. Q: And that you have interest in that property. Is that correct? A: Yes. The following further ensued under cross-examination: “Q: Can you identify exhibit 4 of the Judgment’ Creditor’s witness statement? A: Yes. Q: That is the deed of lease between your husband, and Nii Kortey Boi II. Is that correct? A: Yes. Q: And that is the sole property of your husband per the lease document. Is that correct? A: Yes. Q: The joint property that you lived in and still live in is different from the disputed property. Is that correct? 12 A: Yes. Clearly the above is at variance with her evidence-in-chief because she admits that the property is the sole property of the Judgment Debtor. This confirms the evidence of the Defendant that the disputed property is not joint property. The document which was originally marked Exhibit 4 and attached to the Witness Statement of the Defendant is a Lease between Nii Quartey Boye II and the Judgment Creditor was withdrawn subject to an objection raised with respect to stamping and Exhibit “5” was renumbered as Exhibit “4”. Having admitted that I would in this regard refer to the decision of the Supreme Court in OKUDZETO ABLAKWA & ANOTHER v. ATTORNEY-GENERAL & OBETSEBI- LAMPTEY [2012] 2 SCGLR 845 where the court said as follows: “The established rule that he who asserts assumes the onus of proof. The effect of that principle is the same as what has been codified in the Evidence Act, 1975 (NRCD 323) s 17(1) which reads as follows: “17(1) Except as otherwise provided by law, the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof”. What this rule literally means is that if a person goes to court to make an allegation the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted.” From the above I find as a fact that the disputed property is not a joint property, was not jointly acquired by the parties and that it is solely owned by the Judgment Debtor. From the evidence the Judgment Debtor went to great lengths to draw a clear distinction between the two properties, which distinction has been confirmed by the Plaintiff under oath. The distinction being that one property is jointly owned in which they reside and 13 the other being solely owned by him. The Plaintiff’s evidence was to the fact that she is married to the Judgment Debtor and thus the property is jointly owned. However, it is my opinion that the fact of marriage notwithstanding spouses may solely own properties within the marriage setup as I have found in the instant matter. I further find that the property was not the matrimonial home of the Judgment Debtor and the Plaintiff as she admitted under the oath that the jointly owned property is the matrimonial home. From her own evidence they had at all material times been living in the jointly acquired home. Further, her evidence under oath was that the mortgaged property was acquired in 2021, and that contradicts her evidence to the effect that they had been living in it since they got married. I say so because from her own evidence they got married in 2010, and the property was acquired a year after they got married. I thus find the Plaintiff to be an untruthful witness. I find that the matrimonial home is jointly owned and is their matrimonial home which they jointly acquired soon after they got married. I also find from the evidence that the Plaintiff and Judgment Debtor moved into the mortgaged property to forestall execution processes and moved back into the matrimonial home when execution commenced. The following ensued during cross examination of the Defendant on 3rd December 2024: “Q: Are you aware that the subject matter property was acquired during the subsistence of the marriage between the Judgment Debtor and the Claimant? A: No, I am not aware. And the reason I say that is I remember when the Defendant came to borrow the money from me, he did indicate when I asked him for some collateral for the loan, so he took me to show this property which we indicated as property one that he is solely the owner of the property and that he can use that as some form of security for the money I lent him. Subsequent to that, to convince me that he solely owned that property he then provided details of this 14 second property which he claim he owned with his wife. So I became convinced and then agreed to give him the money…” The following further occurred under cross examination of the Defendant on 3rd December 2024: “Q: What checks did you do regarding the subject matter property as a collateral? A: First, as I indicated, he provided a search result that indicated that he is the sole owner of the property. The second thing he did was he took me to show me the property for me to be convinced that he is the owner of the property… So I basically believed him and helped him out.” The following also ensued during cross examination of the Defendant on the same date: “Q: I am putting it to you that that is the property the Claimant and her three children were living in before the execution of the loan agreement. A: I don’t think that is the case. When he went to show me the place I did not see anybody living there. And he also said that was the property he was using for commercial purposes. Q: Do you fairly remember when you went to the geographical location? A: No, I do not, it’s been almost three years and he sent me a location and I drove there. We were outside and he showed me that this is the property he was using for the loan.” From the above the evidence of the Defendant shows that when he went there in 2021 to inspect the property it was unoccupied. This confirms his evidence under oath that the Judgment Debtor and Plaintiff moved in when they became aware of the execution processes. She testified that it has been their matrimonial home since 2021, but the same person testified that another property which is jointly owned as evidenced by Exhibit 4 15 which is a search report from the Collateral Registry, and confirms the Plaintiff and Judgment Debtor, as owners is their matrimonial home. I will echo the words of the Supreme Court in ANYETEI v. SUSSUANA supra ”the key words are jointly acquired during the marriage” and state that they are missing from the instant case. Exhibit 2 is a duly executed mortgage dated 28th January 2022 between the Judgment Debtor and the Defendant. It has been duly registered with the Collateral Registry. It is my view that there is presently nothing forestalling the Defendant from realising the Mortgage. In the light of the foregoing I will hereby dismiss the interpleader suit and the claim of the Plaintiff/Claimant as being without substance and merit and enter judgment for the Defendant/Judgment Creditor. The execution process with respect to the Unnumbered house at Ofankor, Accra, with the digital address GW-0296-3448 which was suspended in view of the interpleader suit may proceed. (SGD) YAA ONYAMEYE GYAKOBO (J.A) JUSTICE OF THE COURT OF APPEAL (SITTING AS AN ADDITIONAL HIGH COURT JUDGE) COUNSEL SETH MARIO ANNAN FOR KWAME ASARE BEDIAKO FOR THE APPLICANT/JUDGMENT CREDITOR 16 DEDE WOBIL FOR RICHARD NUNEKPEKU FOR RESPONDENT/JUDGMENT DEBTOR EMMANUEL BAMPO FOR FOSTER NYARKO BROBBEY FOR THE CLAIMANT AUTHORITIES 1. GILBERT ANYETEI v. SUSSUANA ANYETEI CIVIL APPEAL NO. J4/67/2021 DATED 2ND MARCH 2023 2. OKUDZETO ABLAKWA & ANOTHER v. ATTORNEY-GENERAL & OBETSEBI- LAMPTEY [2012] 2 SCGLR 845 17