NDK FINANCIAL SERVICES LTD VRS. HAK SYSMENS AND OTHERS (CM/MISC/1058/2022) [2024] GHAHC 465 (22 November 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL COURT “8” LAW COURT COMPLEX ACCRA, HELD ON 22ND NOVEMBER, 2024 BEFORE HER LADYSHIP, JUSTICE MAVIS AKUA ANDOH (MRS). ======================================================= SUIT NO: CM/MISC/1058/2022 CORAM: JUSTICE MAVIS AKUA ANDOH ====================================================== NDK FINANCIAL SERVICES LTD ===== PLAINTIFF/JUDGMENT CREDITOR VRS 1. HAK SYSTEMS ===== DEFENDANTS/JUDMENT DEBTORS 2. GHANA SHIPPERS AUTHORITY 3. HAYFORD ASAFO ADJEI AND ANNOR BETTY ====== CLAIMANT ======================================================= PARTIES: DEFENDANT IN THE INTERPLEADER ABSENT PLAINTIFF IN THE INTERPLEADER ACTION PRESENT ======================================================= JUDGMENT ======================================================= This is an interpleader action involving the Claimant and the Execution Creditor. On the 28th of August 2020, the Claimant commenced the interpleader action against the execution creditor by filing a notice of claim, claiming ownership of the residential property with GPS Address GD-113-5871 situate, lying and being at Adjiringanor. 1 | P age When the parties appeared in Court, the Claimant was ordered to file her affidavit of interest showing her interest in the said property and the Execution creditor was also directed to file its affidavit in response. The parties mutually agreed before this Court, differently constituted after it had considered their respective affidavits and supplementary affidavits of the parties, not to file witness statements but rather the Court should adopt their respective affidavits of interest and affidavit in response as their witness statements in the matter for a speedy trial. To this end, the Court set down the action for trial pursuant to Order 44 r 13 (1) (b) of the High Court (Civil Procedure) Rules 2004 C.I 47.The Court rightly designated the Claimant as the Plaintiff in this interpleader suit and designated the Execution Creditor as the Defendant. Accordingly, the Claimant will hereafter be referred to as Plaintiff and the Execution/ Creditor will be referred to as the Defendant. The Defendants/Judgment Debtors will maintain their original names designated to them. This case has a chequered history, it is therefore pertinent that I set out the chronology of events that snowballed into this interpleader action. BACKGROUND The Defendant herein, in February 2016, commenced an action against the Defendants/Judgment Debtors by issuing out of the Registry of this Court, a Writ of Summons and Statement of Claim for the following reliefs; a) An order for payment of the sum of GH¢2,713,672.65 to the Plaintiff by the Defendants. 2 | P age b) A further order for payment of interest on the sum of money or on monies realized from each transaction aforesaid from the period it fell due and owing to the Plaintiff. c) Damages for breach of Contract. d) Cost inclusive of Solicitor’s fees. The matter went through a full trial after which, this Court differently constituted on 30th July 2018 entered Judgment in favour of the Defendant against the 1st and 3rd Defendant/Judgment Debtors. After obtaining judgment in 2018 and in pursuit of enjoying the fruits of the judgment by enforcing same, the Defendant commenced the execution process by filing the entry of judgment on 18th October 2019. Same was served on the 1st and 3rd Defendant/Judgment Debtors on 18th October 2019, to recover the total amount of Four Million, Seven Hundred and Twenty-Five Thousand, Two Hundred and Twenty-Six Ghana Cedis, Thirty-One Ghana Pesewas (GH¢4,725,226.31) as judgment debt from the 1st and 3rd Defendant/Judgment Debtors. To enforce the judgment, the Defendant caused execution to be levied on the movables as well as immovable residential property afore described of the 3rd Defendant/Judgment Debtor. A valuation was initially conducted on the attached properties by the Defendant, however the 3rd Defendant Judgment Debtor prayed the Court to be afforded the opportunity to also carry out another valuation of the attached property and was granted leave to do so. When the said property aforementioned was attached in execution of the judgment debt, the Plaintiff came forward to claim ownership 3 | P age of the attached property, asserting that the property had been erroneously attached, as the property did not belong to the 3rd Defendant/Judgment Debtor. According to the Plaintiff, she acquired land on which the property was situate in the year 2008 from one Adjetey Agbosu, the Head and lawful representative of the Adjetey Agbosu and Freeman Family of Sraha. Exhibit “AB 1” was attached in proof of the assertion that, the attached property was acquired by her. The Plaintiff also buttressed her claim of ownership of the said property by tendering in evidence various receipts and invoices amongst other documents to show that she is a very industrious business woman and could afford to acquire the property and to buttresses the fact that she is the sole owner of the property in dispute, which has not been used to secure the repayment of any loan by any Financial institution for either the 1st or 3rd Defendants/Judgment Debtors. As is to be expected, the Defendant disputed the claim put in by the Plaintiff, doubting the authenticity of the Plaintiff’s claim. The Defendant relied on its Exhibit 1 which is the valuation report submitted by the 3rd Defendant/Judgment Debtor which was attached to his affidavit in opposition to the motion for reserved price, wherein the 3rd Defendant/Judgment Debtor did not claim to be the owner of the said property, but only disputed the figures quoted in the valuation report as woefully low below the market price and prayed the Court to grant him the opportunity to present an alternative valuation report to reflect the actual values of the properties established. The Defendant attached copies of the motion and affidavit in opposition 4 | P age as Exhibit 1 series and contended that, the instant claim to the attached property is a ruse and prayed the Court to dismiss same. Applicable Laws In determining this application, my first port of call is to refer to Order 44 rule 2 (5) of C.I. 47 which provides as follows; “Subject to sub- rule 3 all property movable or immovable, belonging to the judgment debtor and whether held in the judgment debtor’s name, or by another person in trust for the judgment debtor, or on the judgment debtor’s behalf, is liable to attachment and sale in execution of the judgment or order”. Court’s Analysis and Opinion Per my understanding of the above rule, a judgment Creditor is allowed to attach properties belonging to the Judgment Debtor only, whether held in the Judgment Debtor’s name, or by another person in trust for him or on his behalf. To this end therefore under the law, in attaching the properties for execution, the Sheriff of the Court is to attach properties belonging to the Judgment Debtor. It is pedestrian knowledge that, the Sheriff can only attach and sell property that is owned by a judgment debtor, but not the property merely in the possession of the judgment debtor. It therefore stands to reason that, if the Sheriff in executing the judgment attaches properties that do not belong to the judgment debtor, the law says that, that person whose property has been wrongfully attached has to put in a claim against the attachment, since the property does not belong to the Judgment Debtor. 5 | P age This is stipulated under Order 44 r 12 (1) that; 12 (1) “A person who makes a claim to or in respect of a property taken or intended to be taken in execution under the process of Court, or to the proceeds or value of any such property, shall give notice of the claim to the Registrar and shall include in the notice, a statement of the person’s address for service”. The Claimant acted pursuant to the above rule. In the view of the Court what should engage its attention before determining the Plaintiff’s claim which in my view can summarily determine this action, is to consider the issue of whether or not the property that has been attached in execution of the judgment debt is in actual fact, the property of the judgment debtor as stipulated by the law. This issue if determined, can dispose of the matter without this Court having to go into the merits of the dispute between the parties as it deals with ownership of the property. It is significant to note that, the preparatory steps in the executory processes after entry of judgment has been filed, is for the execution creditor to look for properties if any, of the Judgment Debtor to attach to be sold in satisfaction of the judgment debt. Therefore, the Defendant in the course of executing the judgment, caused to be attached, the purported property of the 3rd Defendant/Judgment Debtor described as House Number GPS GD- 113-5871 situate, lying and being at Adjiriganor in Accra, which the Defendant believed belonged to the 3rd Defendant/Judgment Debtor. 6 | P age It is important to mention that, this property that has been attached was not used as collateral to secure the repayment of the loan, there was no collateral to secure the loan given the Defendants/Judgment Debtors as submitted by Counsel for the Plaintiff in his written submissions. No evidence was brought placed before the Court regarding that. The question I pose is, on what ground then did the Defendant herein proceed to attach the property in dispute? In the testimony of the Defendant’s representative before this Court during cross examination by Counsel for the Plaintiff, this is what transpired. Q. Did the Plaintiff/Judgment Creditor/Respondent verify ownership of the East Legon property before going into execution? A. No, my Lady. Q. So how did the Plaintiff/Judgment Creditor/Respondent come by the conclusion that the property was for the 3rd Defendant? A. Upon being granted judgment in our favor, we proceeded to attach properties that we “thought” belonged to the 1st and 3rd Defendants. Q. Do you agree with me that from your witness statement, the only document exhibited by the Plaintiff/Judgment Creditor/Respondent connoting 3rd Defendant’s ownership of the property is a valuation report? A. No, my Lady. 7 | P age Q. A valuation report does not establish title to land but only the commercial value of a property. Are you aware? A. No. my Lady. Again, during cross examination of the Defendant’s witness on 18th June 2024, this is what transpired. Q. Did the Plaintiff/Judgment Creditor/Respondent see the conveyance on the property in issue before attaching same? A. No, my Lady. Q. Without taking the pain to know the name on the property in issue, what reason did the Plaintiff/Judgment Creditor/Respondent have in attaching that property? A. The Plaintiff/Judgment Creditor/Respondent attached the property “because it is the known residence” of the 3rd Defendant. Q. Was there a presumption that once the 3rd defendant resided in that property, the property was for him? A. Yes, my Lady. It is trite knowledge that possession of a property does not ripen into ownership. From these exchanges, I shall refer to the case of Abdul Rahman Osumanu Giwah and 2 ors Vrs Baba Ladi [2013] DLSC 6122 which is very apt here. In that case, the Supreme Court speaking through Benin JSC as he then was, said that, “possession of property by virtue of relationship with the owner of the property however long it may last, does not ripen into ownership”. 8 | P age I agree with Counsel for the Plaintiff in his submission that, the Defendant never conducted a search to establish the ownership of the property in dispute before attaching same and just presumed that by the sheer fact of residing in the said disputed property, by the 3rd Defendant/ Judgment Debtor, was enough to presume that, the property belonged to him. This presumption of the ownership of the house by the 3rd Defendant/Judgment Debtor without more, is actually not supported by law. It is not sound basic law in my view. The Defendant in its affidavit in response stated that, the 3rd Defendant Judgment/Debtor attached a valuation report prepared by UT Properties Limited as shown by Exhibit 2. I have critically perused the said valuation report submitted by the Defendant and of particular importance to the Court is the clause that has as a heading “owner of the property”. Underneath the heading, has been stated the reputed owners of the subject property to be, “Betty Annor, Kweku Asafo-Adjei and Siblings”. From the records, the 3rd Defendant/Judgment Debtor is known to this Court as Hayford Asafo Adjei and this is the name he was known throughout the pendency of the case. In fact, to substantiate its case that Kweku Asafo Adjei is not the same as Hayford Asafo Adjei, the Plaintiff furnished the Court with Exhibits AB12 and AB13 which are the bio- data pages of the said 3rd Defendant/Judgment Debtor, Hayford Asafo Adjei and the named Kweku Asafo Adjei who happens to be the son of the Plaintiff and the 3rd Defendant/Judgment Debtor. 9 | P age Per the law at the time the Sheriff attached the property, he ought to have been certain that the property to be attached belonged to the 3rd Defendant/Judgment Debtor. The Court was not told that, the attached property was used by the 3rd Defendant/Judgment Debtor to secure the repayment of the loan. No mortgage agreement was tendered in evidence to show the terms and repayment conditions of the loan facility granted the 3rd Defendant/Judgment Debtor, as well as what was used to secure the repayment of the loan. Again, neither is it borne out of the evidence before this Court that, Betty Annor had guaranteed or given any undertaking to repay the loan on behalf of the 3rd Defendant/Judgment Debtor in the event of a default, for which reason she would have used the attached property as collateral, as is normally done. Per the evidence adduced, the attached property even without going into the merit of the claim to determine whether or not the attached property is indeed for the Plaintiff or not, from the documents assessed, none seems to bear the name of the 3rd Defendant/Judgment Debtor, Hayford Asafo Adjei. With no evidence to support the fact that, the attached property actually belongs to the 3rd Defendant/Judgment Debtor, beyond what the Defendant is relying on, that is, the presumption that he resides there, or being resident of the attached property, and the valuation report by merely bearing the name Kweku Asafo Adjei, to establish that the house belongs to the 3rd Defendant/Judgment Debtor, I am unable to even proceed further to make a determination 10 | P age of the interpleader action since the foundation on which the whole attachment of the property was done was wrong in law, void and of no effect. One cannot put something upon nothing and expect it to stay there, it will collapse. In the case of Macfoy v United Africa Co. Ltd (1961) 3 ALL 1169, It was held by Lord Denning as follows; “If an act is void then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse”. The whole action dependent on the Defendant’s presumption of ownership of the house by the 3rd Defendant/Judgment Debtor merely by being resident of the attached property, without any proof to show that he is the owner of the attached property will have to crumble, for one cannot build something on nothing. See also the case of Mosi V Bagyina [1963] DLSC 9092. In the absence of cogent evidence to establish that the attached property actually belongs to the 3rd Defendant/Judgment Debtor, per the laws as spelt out by Order 44 r (2) 5 of C.I 47 supra, or that the 3rd Defendant/Judgment Debtor has an interest in the attached property, I will not waste time to consider the claim put in by the Plaintiff, since it has not been established that the attached house belongs to the 3rd Defendant/Judgment Debtor, Hayford Asafo Adjei. Accordingly, I shall order that the attached property is to be released from attachment forthwith. 11 | P age I shall make no order as to cost. Each party is to bear their own cost. Accordingly ordered. (SGD) ……………………………………………. MAVIS AKUA ANDOH (MRS) JUSTICE OF THE HIGH COURT COMMERCIAL COURT “8” LAW COURT COMPLEX ACCRA. COUNSEL: PAA KWESI ABAIDOO WITH SANDRA OSEI FOR THE CLAIMANT/PLAINTIFF IN THE INTERPLEADER ACTION PETRINA DEFIA HOLDING THE BRIEF OF O.K OSAFO BUABENG FOR THE PLAINTIFF/JUDGMENT CREDITOR DEFENDANT IN THE INTERPLEADER ACTION – NO LEGAL REPRESENTATION FOR THE DEFENDANTS/JUDGMENT DEBTORS. AUTHORITIES CITED I. High Court (Civil Procedure) Rules, 2004 C.I 47. Cases Referred to 1. Abdul Rahman Osumanu Giwah and 2 Ors Vrs Baba Ladi [2013] DLSC 6122. 2. Macfoy V United Africa Company Limited [1961] 3 ALL ER 1169. 3. Mosi V Bagyina [1963] DLSC 9092. 12 | P age