OWUSU VRS. ADJEI AND ANOTHER (AP/231/2014) [2024] GHAHC 117 (21 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION) ACCRA HELD ON TUESDAY, THE 21ST DAY MAY, 2024 BEFORE HIS LORDSHIP, JUSTICE PATRICK BAAYEH (J) SUIT NO. AP/231/2014 JOSEPH BERKO OWUSU - PLAINTIFF/J/CREDITOR VRS. 1. AKWASI OSEI ADJEI 2. DMT COLLATERAL LTD DEFENDANTS/J/DEBTORS RITA PLANGE - CLAIMANT JUDGMENT This is an interpleader action. The Genesis of the Claimant’s claim is from a Judgment of this court (differently constituted) dated 20th February, 2018 where judgment was entered for the Plaintiff /J/Creditor (Joseph Berko Owusu) now referred to as Plaintiff against the Defendant/J/Debtor, (Akwasi Osei Adjei) now referred to as the Defendant. In his attempt to execute the Judgment, the Plaintiff attached the property described as House No. Plot 660, East Legon Residential Area, Accra and also described as H/No. GA 28505713, Kinshasa Close, behind Godivah International School. The Claimant has in pursuant of her contention as the owner of the property filed a notice of claim. In her particulars of claim, the Claimant traced her root of title to Mrs. May Kalmoni and Abdullah Queida. She averred that the Defendant is her husband. That she runs a hospitality business known as Goodlife Hospitality Limited and its business includes hospitality, leisure and event planning services. That before she incorporated her current company, she was dealing in cosmetics under the name Body Services with its registered office in Kumasi. Out of the proceeds from the cosmetic business, Claimant says she acquired two plots of land in Ashanti Region and Accra. That the Accra plot was acquired from Okplelor Sowah Din family per its 1 head of family Eugene Odametey Sowah as the lessor (Exhibit D). That sometime in 2007, she acquired plot No. 82A Block H in the Adiennbrah Layout in Kumasi by a Deed of Assignment made between Kwasi Kyei Ofori as the Assignor and the Claimant as the Assignee in trust for her son Osei Kwame who was then a minor ( see Deed of Assignment Exhibit E). That in 2015, she sold these two plots that is the Kumasi and Accra plots, and the proceeds used to acquire the disputed property Plot No. 660, East Legon Residential area. (property No. GA 285-5713 Kinshasan Close). It is Claimant’s case that at the time she purchases the disputed property, there was a structure on it which had been developed to lintel level and she continued to develop it and moved in after completing two bedrooms. Claimant avers that as the legal owner and trustee of the property her legal interest in the property was acquired through a deed of assignment dated 8th March, 2015 made between Mrs. May Kalmoni and Abdallah Queida as the assignors and herself in trust for her son Nana Kwame Osei Adjei as the assignee (see Exhibit G) Deed of Assignment. That her assignors, by an application dated 10th April, 2014 sought the consent of the Lands Commission to divest their interest in the property. On his part the Plaintiff disputes the Claimant’s claim to the property and has also filed his response. He avers that Plaintiff initially attached the property described as H/No. 16 or H/No. 90B, Wasem Avenue, East Legon Accra but the Seed Fund Savings & Loans Ltd which had earlier obtained Judgment against the Defendant in suit No. CM/BFS/0386/2017 in the case entitled the Seed Fund Savings & Loans Ltd Vrs Ridge Steward Stone Construction Ltd & Honourable Akwasi Osei-Adjei sold that property in satisfaction of the Judgment Debt in that matter. Plaintiff says when the Plaintiff attached H/No. 16 or H/No/ 90B Wasem Avenue East Legon, Accra, the present Claimant filed a notice of claim but failed to Pursue it resulting in the claim being struck out and the subsequent Judicial sale of the property in favour of The Seed Fund Savings & Loans Ltd (Exhibit B) and after the sale of Wasem house, it came to the notice of Plaintiff that the property in dispute also belong to the Defendant/J/Debtor hence the instant attachment by Fifa. 2 Plaintiff says the Claimant’s Exhibit G, i.e. the indenture purporting to transfer the interest of Mrs. May Kalmoni and Abdullah Queida was signed by one grantor and it is also not clear which of the grantors signed Exhibit G. That a search conducted at the Lands Commission as at 19th May, 2023 indicated that the beneficial ownership in the property is vested in May Kalmoni and Abdallah Queida (Exhibit C). I have taken note of the particulars of claim and the response by the Plaintiff as well as the Exhibits filed by both parties. As a requirement in any Civil Case it is the duty of the party who makes an assertion to lead evidence to proof his/her claim or assertion. In the celebrated case of ZABRAMA VRS SEGBEDZIE (1991) 2GLR 221 at page 226, Kpega JA (as he then was) put it succintly thus; “ A person who makes an averment which is denied by the opponent has a burden to establish that the assertion is true. And he does not discharge that burden unless he leads admissible and credible evidence from which the facts he asserts can properly and safely be inferred”. In the case of ABABIO VRS AKWASI III (1994-95) GBR 774, The Supreme Court reiterated the position in ZABRAMA VRS SEGBEDZIE (SUPRA) and held that; “ A party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. The burden only shifts to the Defendant when the Plaintiff has adduced evidence to establish his claim”. See also Section 11, 12 and 14 of the Evidence Act (1975) NRCD 323. In the instant case the Plaintiff has attached house No. Plot 660, East Legon Residential Area, Accra and also described as H/No. GA 285-5713, Kinshasa Close, behind Godivah International School following a judgment he obtained against the Defendant/J/debtor (Defendant) Akwasi Osei-Adjei who is also the husband of the Claimant. The evidence on record shows that the Defendant in fact presented House No. 16 or H/No. 90B, Maseru 3 Avenue, East Legon Accra to the Plaintiff as security to secure the loan which resulted in the judgment debt. However, before the Plaintiff could attach the Maseru house, it had already been attached by The Seed Fund Savings and Loans Ltd, and sold in satisfaction of its judgment, the Seed Fund secured against the self-same Akwasi Osei Adjei. In proving her title to the attached house i.e. House No. Plot 660 East Legon Residential Area, the Claimant traced her root of title and the source of funding. The documents tendered in evidence show that she acquired the property per a deed of assignment made between claimant and Mrs. May Kalmoni and Abdullah Queida dated 8th March, 2015 (Exhibit G.) It is however, evident that at the time of the assignment (Exhibit G), Mrs. May Kalmoni and Abdullah Queida had not obtained the consent of the Lands Commission which Consent was granted per letter dated 2nd October, 2023, which was tendered in evidence as Exhibit RPI. The letter is headed “ADMINISTRATIVE CHARGES FOR CONSENT PROCESSING IN RESPECT OF ALL THAT PROPERTY KNOWN AS PLOT NO. 660 SITUATE AT EAST LEGON RESIDENTIAL AREA-ACCRA. Paragraph 1 and 2 of Exhibit RPI states; “The Lands Commission is pleased to inform you that consent to assign/Sublet/Mortgage/Vest the above-mentioned plot has been granted. However, you are required to pay a n amount of Two Thousand, Five Hundred and Eighty-Five Ghana cedis (GH¢2,585.00) as administrative charges for the consent processing. “ You are required to furnish us with four copies of fully executed and stamped deed prior to the collection of the consent certificate”. It is for this reason that the Plaintiff’s report dated 19th May, 2023 (Exhibit C) indicated that the beneficial ownership in the property was still vested in Mrs. May Kalmoni and Abdallah Queida. Indeed, the evidence show further that Mrs. May Kalmoni and Abdallah Queida themselves acquired the property by a deed of assignment from one Justus Kwame Avudzivi on 1st June, 2007. (Exhibit K). the property was originally granted to Justus Kwame Avudzivi by the Government of Ghana (per Lands Commission on 24th December, 1977 for a period of 99 years (Exhibit L). The said Justus Kwame Avudzivi was in possession from 1977 until he applied to 4 the Lands Commission seeking consent to assign his interest in plot No. 660, East Legon to Mrs. May Kalmoni and Abdalla Queida which consent was granted on 27th February, 2008. From the evidence on record therefore I hold that the Claimant has succeeded in proving her title to plot No. 660, East Legon Residential Area by preponderance of probabilities. The attachment of plot No. 660, East Legon Residential Area is wrong and unwarranted. The attachment of plot No. 660 East Legon Residential Area is therefore set aside. Cost of GH¢8,000.00 for the claimant against Plaintiff/J/Creditor. (SGD.) JUSTICE PATRICK BAAYEH (J) (JUSTICE OF THE HIGH COURT) COUNSEL WENDY NANA AMA OKAI HOLDING BRIEF OF JOE ABOAGYE DEBRAH FOR PLAINTIFF/J/ CREDITOR MICHAEL LARTEY HOLDING BRIEF OF MARIAM AGYEMANG GYASI JAWHARY FOR THE CLAIMANT 5