ADAM VRS. YEBOAH (CM/0465/2022) [2024] GHAHC 468 (15 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, COMMERCIAL COURT “8” LAW COURT COMPLEX ACCRA, HELD ON 15TH OCTOBER, 2024 BEFORE HER LADYSHIP, JUSTICE MAVIS AKUA ANDOH (MRS). ======================================================= SUIT NO: CM/0465/2022 CORAM: JUSTICE MAVIS AKUA ANDOH ====================================================== NURU ADAM ====== PLAINTIFF/JUDGMENT CREDITOR VRS FRANK CALCULUS YEBOAH ====== DEFENDANT/JUDMENT DEBTOR AND IRENE KUMI ======= CLAIMANT ======================================================= PARTIES: PLAINTIFF/JUDGMENT CREDITOR PRESENT DEFENDANT/JUDGMENT CREDITOR AND CLAIMANT ABSENT ======================================================= JUDGMENT ======================================================= This is an interpleader action involving the Claimant and the Plaintiff/ Judgment Creditor herein. In this delivery, the Claimant will still be referred to as the Claimant and the Plaintiff/Judgment Creditor will be referred to as the Plaintiff/Judgment/Creditor. The 1 | P age Defendant/Judgment Debtor will also be referred to as the Defendant/Judgment Debtor. The Plaintiff/Judgment Creditor on 29th June 2016, issued out of the Registry of the Court, a Writ of Summons and Statement of Claim against the Defendant/Judgment Debtor for the following reliefs; a) An order for payment of the sum of GH¢2,713,672.65 to the Plaintiff by the Defendant. 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 5th November 2020 entered Judgment in favour of the Plaintiff/Judgment Creditor. After obtaining judgment in 2020, and in pursuit of enforcing same to enjoy the fruits of his judgment, the Plaintiff/Judgment Creditor commenced the execution process by filing the entry of judgment on 9th December 2020 and same was served on the Defendant/ Judgment Debtor on 11th December 2020, to recover the total amount of Seven Million, Two hundred and Eighty Two Thousand, Nine Hundred and Forty One Ghana Cedis, Sixty Five Ghana Pesewas (GHC7, 282, 941.65) from the Defendant/Judgment Debtor. 2 | P age To enforce the judgment, the Plaintiff/ Judgment Creditor caused execution to be levied on the Defendant/ Judgment Debtor’s immovable property situate, lying and being at Macetown Street, 4 Ayikai Doblo, Judah, near Amasaman in the Greater Accra Region of the Republic of Ghana. Again, this Court differently constituted instructed Mark Atiemo of Prestige properties Accra, to conduct a valuation on the said property in order to ascertain its market value. The valuation was accordingly done and the open market value of the property was GHS3, 418, 600.00, while the forced sale value was GH¢2,393.000.00. When the said property above described was attached in execution of the judgment debt, a Claimant Irene Kumi, filed an Interpleader Notice on the 20th of May 2022, pursuant to Order 44 rule (12) of the High Court Civil (Procedure) Rules 2004, C.I. 47 claiming to be the owner of the attached property. According to the Claimant, the property which had been attached in execution of the judgment against the Defendant/ Judgment Debtor was not the property of the Defendant/ Judgment Debtor. The Notice of Claim further stated that, the said Defendant/ Judgment Debtor only operates his business interest from there. The Claimant and the Plaintiff/Judgment Creditor were given the requisite notice to appear in Court for the issue to be determined. They were then directed to file their respective affidavits of claim and dispute to the claim for the determination of the interpleader suit. The Claimant filed her affidavit of interest on 29th March 2023 and the 3 | P age Plaintiff /Judgment Creditor filed his affidavit in opposition on 8th May 2023. Counsel for the Plaintiff/Judgment Creditor on the 25th of May 2022 filed a Motion on notice for determination of the reserved price. However, to date the motion for reserved price has not been heard as the Court differently constituted had to put the hearing of the Motion for the determination of the reserved price in abeyance, pending the determination of the Interpleader Suit. Affidavit Evidence of the Parties According to the Claimant in her affidavit of interest supporting her claim, she is a Business woman and is into local rice production. She claimed that she negotiated and purchased the attached property in dispute after a thorough investigation to ascertain the title of the Defendant /Judgment Debtor. She became satisfied with his title after she had conducted a search at the Lands Commission per her Exhibit “A” which is a copy of the search report before she purchased the said property. Now, the Court notes that, the Claimant claims to have conducted this search before purchasing the property in 2016. The said search was conducted on 18th August 2020. The Court finds this piece of evidence not plausible since it is so not possible for one to purchase property in 2016 and support ones claim with evidence that postdates the time when the search was purportedly conducted, after the property had been purchased in 2020. In the proper scheme of things, such searches to purchase properties are conducted prior, to ascertain the Vendor’s ownership of the said property, but not 4 | P age conducted after the sale. This goes to prove that the Claimant’s assertion in paragraph 5 of her affidavit is not supported by the evidence. According to the Claimant, she paid for the property in two equal instalments of One Million, Three Hundred Ghana Cedis (GH¢1, 300,000.00) first on the 10th of September 2016 and subsequently, on the 10th of December 2016, she paid One Million Ghana Cedis (GH¢1,000.000.00). She attached Exhibits “B” and “C” as evidential proof of her claim. According to the Claimant, she has after the payment, become the bona fide purchaser for value of the said property and has also been in effective possession and has even processed the property’s documents at the Lands Valuation Board, so the property is her bona- fide property. The said documents are exhibit “D” series. The Claimant again attached Exhibit “E” which is a Deed of Conveyance of the property transferring the property to her. She further claimed that, she has refurbished the property and the “environment” to its present state and been in effective possession. The Petitioner/Judgment Creditor filed an affidavit in opposition to the claim of the Claimant on the 8th of May 2022 disputing the claim put in by the Claimant. Basically what the Plaintiff/Judgment Creditor is saying in opposition is that, the affidavit of interest filed by the Claimant and the attached exhibits to prove her claim are self- serving. 5 | P age The Plaintiff/Judgment Creditor pointed out that, the Claimant claims to have paid the total value of GH¢2,300,000.00 for the property between 10th September and 10th December 2016. However, per her Exhibit E, which is the Deed of Conveyance between the Defendant/Judgment Debtor and the Claimant, the date of the said Conveyance is 20th May 2016. It is the case of the Plaintiff/Judgment Creditor that, curiously this makes it 8 months before she purportedly paid the last tranche of the property’s full value .The Court notes that, there is no Sale and Purchase Agreement to guide the nature of the transaction, payment terms etc. to dovetail into the Deed of Conveyance. The Plaintiff/ Judgment Creditor again pointed out that, the Claimant claimed that, the value of the property purportedly paid by her is GH¢2,300,000.00 whereas in Exhibit E, the consideration quoted for the purchase price is GH¢50,000.00. The Plaintiff/ Judgment Debtor pointed out that, these claims made by the Claimant are contradictory and are very fatal to her claim. The Parties respective affidavits of interest and disputes were adopted and the interpleader suit was determined on the respective affidavits filed by the parties. Applicable Laws This action is governed by Order 44 rules 2 (5), 12 and 13 of the High Court Civil (Procedure) Rules C.I. 47. Order 44 r 2 (5) states that; 6 | P age “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”. Per my understanding of the law as stated above, a judgment Creditor is allowed to attach only the properties of the party against whom judgment was entered, as it does not matter if the property was held in trust, or on behalf of the debtor. If the Sheriff in executing the judgment attaches properties that do not belong to the judgment debtor, the 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. The Claimant acted pursuant to the above rule. Again, Order 44 r 12 (1) and (2) and 13 stipulates 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”. 12.(2)“On receipt of a claim made under sub rule (1) the Registrar shall forthwith give notice of it to the execution creditor who shall within four days after receiving the notice, give notice e to the registrar informing the registrar whether the execution creditor admits or disputes the claim”. 7 | P age 13. “where on the hearing of proceedings pursuant to an order made under rule 12(4) all the persons by whom adverse claims to the property in dispute, in this rule referred to as the claimants appear, the Court may summarily determine the question in issue between the Claimants and execution creditor and make an order accordingly on such terms as may be just”. Accordingly, after perusing the respective affidavits of the Parties, the Court formed the opinion that, the issues were not too complex that would require that the issues be tried. The Court decided to summarily determine the question in issue between the Claimant and the Execution Creditor and make the necessary orders as the Court considers just in accordance with Order 44 r (13) 1 (a) of C.I. 47 supra. Court’s Analysis and Opinion It is settled under our jurisprudence that, a party who asserts assumes the burden of proving same, as assertions of facts are not evidence, unless admitted or supported by evidence. The Apex Court has postulated this position of the law in a long line of cases, such as; Takoradi Flour Mills Vrs Samir Faris [2005-2006] SCGLR @ page 882 and others. In the case of Okudzeto Ablakwa (No.2) V Attorney- General & Obetsebi Lamptey (No.2) [2012] 2 SCGLR 845, the Supreme Court in dealing with the burden of proof held at page 867 of the report as follows; “… 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). Section 17(a)… what this rule literally means is 8 | P age 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. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in Court if the case is based on an allegation which he fails to prove or establish”. This principle has been given statutory recognition by Section 12(1) of the Evidence Act, 1975 (NRCD 323). Again, by Section 11(4) of NRCD 323, the burden of producing evidence is discharged when a party produces sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its nonexistence. Having stated the position of the law in respect of the party on whom lies the burden of proving his or her claim, the onus therefore lies on the Claimant to prove to this Court that indeed, the house belonged to her and not the Defendant/Judgment Debtor. Per the evidence adduced from the Claimant’s affidavit and exhibits attached to her claim, the Claimant claims that, she negotiated and purchased the property in dispute, and made two installment payments of a total of Two Million, Three Hundred Thousand Ghana Cedis (GH¢2,300,000.00). In opposing this claim or assertion by the Claimant, the Plaintiff/Judgment Creditor is saying amongst others that, the Claimant is a sister of the Defendant/Judgment Debtor and is his employee. 9 | P age According to the Plaintiff/Judgment Creditor during the trial, this issue of the Claimant being the sister of the Defendant/Judgment Debtor was brought up but was not controverted by the Defendant/Judgment Debtor, so it is curious that for one who was an employee of the Defendant/ Judgment debtor, she can now turn around and purchase such a property of her employer and purport to make full payment when such a person is known to be an employee of the Defendant/Judgment Debtor. I note that the Claimant did not provide any evidence regarding how she was able to fund the purchase of the property aside her deposition that, she is a business woman and a local rice producer. Again, the Claimant asserted that she is a businesswoman and a local rice producer, so could afford to pay for the property in dispute. Even though the Claimant furnished the Court with receipts indicating payments made by her for the purchase of the property, unfortunately, she failed to furnish the Court with evidence that she has the financial muscle to purchase the property. She did not support her claim with bank transactions effecting the payments she made, especially since these are large sums of money. The Court is not told how the payments were made, whether by cash or by cheque or direct bank transfer into the accounts of the Defendant, evidenced by the Claimant’s bank statement to show the respective dates of payments made so as not to label Exhibits B and C as self-serving documents. The Court is mindful of the fact that, anyone at all could print receipts to serve a purpose to prove a case. 10 | P age Exhibit “E” is a Deed of Conveyance but was referred to by the Claimant as a Deed of Transfer, which the Claimant claims transferred the property into her name. A close perusal of the said Deed of Conveyance shows that it was dated 20th May 2016, and purportedly made between the Defendant/Judgment Debtor and the Claimant. The question lingering on the mind of the Court is that, why would a document be made to cover a yet- to- be- paid for property in May 2016, four clear months before first payment of the said property is made to the Defendant/Judgment Debtor in September 2016?. And the payment is even also completed in December 2016.One would have expected that the parties would have executed a Sale and Purchase Agreement at this stage rather. One significant observation made by the Court after a careful perusal of Exhibit “E” is that, even though the Claimant has said that, she purchased the property for a sum of GH¢2,300,000.00, per Clause 4 of the Deed of Conveyance, it has been stated that the Vendor acknowledged receipt of the purchase price of GH¢50,000.00 being the purchase price from the Claimant. This GH¢50,000.00 the Court noted was inserted into the said clause. Again, a careful reading of the recitals in the clause above stated, shows that the wording therein speaks of a contract made between the Defendant /Judgment Debtor and his grantors who gave him the land originally and the recitals do not speak of a transaction between the Defendant/ Judgment Debtor and the Claimant. Counsel for the Plaintiff/ Judgment Creditor in opposing the Claimant’s claim deposed that, there are inconsistencies in the claims 11 | P age made by the Claimant which makes the claim put in by her not to be believed. I tend to agree with Counsel for the Plaintiff /judgment creditor in his submissions on this point. The case of Gifty Eleanor Ayikai Tagoe v Nana Adu Frimpong, [2023] DLSC 16992 in relevant on this regard. In that case, the Court of Appeal on the issue of inconsistencies, cited the case of Obeng V Bempomaa [1992-1993] GBR Page 1027 which settled the issues of inconsistencies, contradictions and others as follows; “Inconsistencies, though individually colorless may cumulatively discredit the claim of the proponent of the evidence. The conflicts in the evidence of the Plaintiff and his witnesses weakened the merit of his case and proved fatal to his claim”. Again, the Court observed that, the Claimant exhibited certain sets of documents submitted for processing at the Lands Valuation Board as exhibit “D”. These sets of documents include an Indenture. Per clause F of the Lessee’s covenants, the Defendant/Judgment Debtor who is a Lessees in the Indenture was not, without the prior written consent of the Lessor, to go ahead to either mortgage, pledge, charge, assign or part with the possession of the demised premises and any structure and fittings thereon. If the Defendant/Judgment Debtor indeed sold the property to the Claimant, he ought to have had the written consent of his Lessor. The question is, was there such a written consent before the property was purportedly sold to the Claimant? Per the documents furnished the Court by the Claimant, I did not come across any such written consent by the Grantors of the Defendant/Judgment Debtor. There was no 12 | P age such written consent attached to the set of documents submitted to the Court evidencing that, the Defendant/ Judgment Debtor sought the written consent of his grantors before selling the property to the Claimant, for the Claimant’s story to be a plausible story. Failure by the Claimant to furnish the Court with any such written consent by the Lessor of the Defendant/Judgment Debtor amongst others creates doubt over the sale of the property, more so when all documents exhibited are self-serving documents. As said earlier in this delivery, the Claimant did not produce any evidence of her source of funding for the property and how the payment for the property was made, more so, there is evidence that she is a sister of the Defendant/ Judgment Debtor and an employee of him who was being paid by the Defendant/Judgment Debtor. The question begging for an answer is, why would the Defendant/Judgment Debtor, if he genuinely knew that, the Claimant had not made full payment of the property in dispute to him in May 2016, go ahead and transfer the property to the claimant? The Defendant /Judgment Debtor could not by a stretch of imagination possibly transfer property to the Claimant in May 2016 when she had not made full and final payment for same, 7 months prior, before full payment for the property was made. This is beyond sound basic business practice. That Deeds of Transfer are made to Purchaser’s even months prior, before full payments are made for the said property. Since the onus was on her to prove her claim as in all civil matters, the Claimant failed to prove her assertion that she actually bought and 13 | P age completed payment for the property by December 2016 and had a Deed of Transfer prepared for her. As Exhibit “E” dated May 2016 was prepared way before she finished paying for the property in December 2016. In the respectful view of this Court, there are a lot of inconsistencies regarding the Claimant’s claim, which cast doubts on the Claimant's assertion that she purchased the property at the price she claimed to have bought it, when the Deed of Transfer states otherwise, thus making her claim that she is in effective possession of the house not plausible. Also, per the notice of claim, the Defendant /Judgment Debtor claims that he carries on business in the property purported to have been sold to the Claimant. As said earlier, the onus of proving her claim laid heavily on the Claimant. So she ought to have furnished the Court with further proof on her legal and equitable rights in respect of the property, but she did not provide any evidence to prove same. The Claimant should have produced evidence to show to the Court how payments for the property were made. Were the payments made by cash or by cheque or bank transfer of the funds directly? The Court finds the attached receipts of payment purportedly made by the Claimant as self-serving documents prepared by the Defendant Judgment /Debtor to as it were, throw dust in the eyes of the Court. Cheques regarding how the monies were paid and the beneficiary of the said Cheques as payments for example, would greatly have assisted the Court as it serves as an independent 14 | P age confirmation of payment made by the Claimant. More so, when the Deed of Conveyance also quotes a different amount as the purchase price. It is trite knowledge that, when material facts are within the peculiar knowledge of a party, he assumes the burden of producing such evidence, or else he or she will suffer a decision against him on the issue. If one asserts and an opponent denies, the law says, you adduce evidence to rebut that. See the case of Zabrama V Segbedzi (1991) 2 GLR 221.Did the Claimant in the midst of denials of her claim by the Plaintiff/ Judgment Creditor make any efforts to controvert same? It is clear from the evidence placed before the Court that, there was no cogent evidence to show that the Claimant actually purchased the said property of the Defendant/ Judgment Debtor and has been in effective possession of the said property, as she is making this Court to believe, since she does not appear to know much about the house but is falsely laying claim to it that she actually purchased it in 2016 and has been in effective possession. Conclusion All matters considered and in conclusion, based on the evidence adduced from the respective affidavits of interest and in opposition, it is the clear thinking of this Court that, this interpleader suit smacks of a collusion between the Claimant and the Defendant/Judgment/ Debtor in an attempt to deny the Plaintiff/judgment Creditor of the fruits of the judgment. The Court finds the claim of the Claimant not plausible. 15 | P age Accordingly, the claim of the Claimant in this interpleader suit is dismissed and the Plaintiff/ Judgment Creditor is accordingly ordered to go ahead with the execution process to sell the attached property to realize the judgment debt. The suit is adjourned to 28th October 2024 to determine the reserved price at 9.00 am. Cost follows events, so cost of Ten Thousand Ghana Cedis (GH¢10,000.00) is awarded against the Claimant in favour of the Plaintiff/ Judgment Creditor. Accordingly ordered. (SGD) ……………………………………………. MAVIS AKUA ANDOH (MRS) JUSTICE OF THE HIGH COURT COMMERCIAL COURT “8” LAW COURT COMPLEX ACCRA. COUNSEL: REXFORD NII NORTEY LOKKO HOLDS THE BRIEF OF EVANS GADETO DZIKUNU FOR THE PLAINTIFF /JUD CREDITOR. J.A. SENOO FOR THE CLAIMANT. No legal representation for the Defendant/Judgment Debtor. AUTHORITIES CITED I. Evidence Act, Act 323. II. High Court Civil Procedure Rules CI 47. 16 | P age CASES 1. Takoradi Flour Mills Vrs. Samir Faris [2005-2006] SCGLR @ page 882. 2. Okudzeto Ablakwa (No.2) V Attorney- General & Obetsebi Lamptey (NO.2) [2012] 2 SCGLR 845. 3. Gifty Eleanor Ayikai Tagoe v Nana Adu Frimpong, [2023] DLSC 16992. 4. Obeng V Bempomaa [1992-1993] GBR Page 1027. 5. Zabrama V Segbedzi (1991) 2 GLR 221. 17 | P age