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JUDGMENT:
By reason of a Judgment obtained
by the Judgment Creditor,
Anthonious Henrikus against Mrs.
Agnes Sai, (Judgment Debtor) the
former went into execution
attaching under warrant of
execution inter alia, property
described as Plot TDC 12-007
Community 12 Tema; the property
in dispute. The Judgment
Creditor did so because he
believed Mrs. Sai was the owner
of the said property.
The Judgment Creditor obtained
judgment against the Judgment
Debtor for the recovery of
70,000 Euro or its equivalent in
Cedis together with interest and
costs. The Judgment Debtor
appealed against the Judgment
but the appeal did not go
through. A Writ of Fi Fa
was issued by the Registrar to
attach the movable and immovable
property of the Judgment Debtor.
The Claimant herein issued an
Interpleader Summons claiming to
be entitled to the ownership of
the property in dispute. The
said claim was disputed by the
Judgment Creditor now Execution
Creditor.
The Execution Creditor’s
evidence per his lawful attorney
Mabel Chirapanga, was that the
property in dispute is owned by
Mrs. Agnes Sai, the Execution
Debtor. She said that Mrs. Sai
used to live in a rented house
on the Spintex Road. Mrs. Sai
informed the Execution Creditor
that she had bought the property
in dispute at Community 11 at
Tema from a medical doctor. She
said the goods, subject matter
of the substantive matter, were
delivered to Mrs Sai in the
property in dispute as by that
time she had moved into that
house. Mrs Sai also informed the
Execution Creditor that she had
made part payment of the
property in dispute and thus had
taken possession, and would pay
the balance on the property. She
has also done some works on the
house.
The Claimant on the other hand
testified that in 1975 Tema
Development Corporation (TDC)
started a building for the
Claimant and her husband, the
late Dr Isaac Bentsi but were
not able to complete it. In 1980
the Claimant made a request to
the TDC to be allowed to
complete the building, which
request was acceded to. The
Claimant tendered in evidence; a
Housing Ownership Application
(Exhibit “1”); Offer letter from
TDC dated 14th
November, 1988 (Exhibit “2”);
Indenture (Exhibit “3”);
Permission to construct (Exhibit
“4”). Dr Bentsi’s evidence was
that she did not live in the
property in dispute; it was the
Execution/Debtor who lived in
it. She said that towards the
end of 2004 she and her late
husband were approached by Mrs
Sai to purchase the house; and
Claimant and her late husband
agreed to the sale. The
purchase price was the cedi
equivalent of US$300,000. The
understanding was that Mrs Sai
was going to pay for it
outright. The agreement was
tendered in evidence as Exhibit
“5”. Mrs Sai was supposed to
have completed payment between
August and September, 2005,
however she still has an
outstanding balance of GH140,
000. The “Undertaking” by Mrs
Sai was tendered in evidence as
Exhibit “6”.
The Claimant’s further evidence
was that she had not executed
any conveyance transferring the
property to Mrs Sai, neither had
she caused TDC to effect any
transfer of ownership in respect
of the property. Claimant also
placed before the Court,
evidence of the fact that she
had been paying the ground rent
all this while; Exhibit “7”,
“7A” – “7C”. The last payment
was made in March 2011. Under
cross-examination, Claimant
conceded that per the agreement,
Claimant could re-enter the
property if the Purchaser, Mrs
Sai, defaulted. She also
conceded that she had not taken
any steps to recover the
outstanding balance. She also
said she had not been on the
property since 2009.
As already indicated, Claimant
is claiming ownership of the
property in dispute, but the
Execution Creditor is claiming
that the said property is owned
by the Execution Debtor. The
concept of ownership of land
embraces possession of and title
to land. The principle of law is
that the person in possession is
deemed to be the owner and her
possession is good against the
whole world except the true
owner. This principle is
enunciated in Wuta-Ofei v
Danquah [1964] 1 GLR 487,
and Aidoo v Adjei & Others
[1976] 1 GLR 431. And that
is what the Claimant is claiming
to be – the true owner. There
can be little doubt that on the
proved and admitted facts of the
instant case the Claimant bore
the onus to prove ownership.
She sought to discharge the onus
and substantiated her disputed
claim to ownership by
establishing her title to the
said property based on a series
of documents obtained from the
vendor. All the evidence adduced
by the Claimant tends to show
that TDC allocated the property
in dispute to Claimant.
There is nonetheless evidence
that The Claimant entered into a
sales agreement with Mrs Sai to
sell the property in dispute to
her. And even though there was
no proof of purchase by way of
receipts, the Claimant herself
testified that Mrs Sai had paid
about half the purchase price.
The position of the law is that
as soon as a valid contract of
sale of land is entered into the
vendor, though still retaining
the legal title becomes a
trustee for the purchaser to
whom the beneficial ownership
passes in equity. In other
words, after the contract has
been signed, the purchaser
becomes in equity, the
beneficial owner of the property
contracted to be sold.
In my opinion, the fact that no
transfer has been effected into
the Execution Debtor’s name is
not conclusive proof that the
property has not been fully paid
for. As I have stated there is
no evidence before the Court as
to the exact payments made by
the Execution Debtor. The
evidence of the Claimant under
cross –examination was that the
last payment made by the
Execution Debtor was in 2005.
That, the Claimant had an option
to take legal action to either
recover the outstanding balance,
or even the property, but she
has not done either. Claimant
has also not visited the
property since 2009.
In the circumstances of this
case, I am of the view that
equity must intervene in favour
of the Execution Debtor, Mrs Sai.
The maxim of equity, “Equity
looks on that as done which
ought to be done” should
apply. The Claimant has not been
able to prove that she owns the
property in question wholly. She
has not been able to prove that
she is the owner of the said
property in the sense for which
her claim can be sustained. Her
claim has only succeeded in
part; that the Claimant has
money to collect from the
Execution Debtor.
I will therefore dismiss the
claim. It is however directed
that the sale proceed subject to
the said right of the Claimant.
The Claimant shall be entitled
to the amount outstanding from
the sale agreement between her
and the Executive Debtor.
The Claimant shall be served
with the Valuation Report on the
property in dispute done at the
instance of the Execution
Creditor which formed the basis
for the Reserved Price fixed for
the sale.
I make no order as to costs.
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
J.A. LANKAI
- PLAINTIFF
LARRY OTOO
-
CLAIMANT
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