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JUDGMENT:
By the reason of a Judgment
obtained by the
Plaintiff/Judgment Creditor,
Chrisline Financial Services
(designated the Defendant in
this inquiry) against Gladys
Owusua and two others, the
former went into execution
attaching under a warrant of
execution, the property known as
Awo Plaza, 15th Lane,
off Cantonment Road, Accra.
Plaintiff claims that the said
property was mortgaged to it by
the Claimant.
The Claimant herein, Jennifer
Acquah, issued an interpleader
summons claiming ownership of
the property in question. Her
claim is that she did not
mortgage the property to
Plaintiff for the facility
granted to the Defendants,
Gladys Owusua and two others.
Claimant tendered in evidence, a
Provisional Land Certificate
(Exhibit “A”) and Lease Deed
between Emmanuel Nii Laryea Addo
and Others and Claimant (Exhibit
“B”) as proof of ownership.
Claimant’s evidence was that she
had not been sued by the
Plaintiff, neither had her
property been the subject matter
of litigation. Furthermore, her
property had not been used to
secure the repayment of any
facility granted to the
Defendants. Her further
evidence was that the property
attached did not belong to the
Defendants, neither had any
court made an order for its
judicial sale.
Plaintiff tendered in evidence
through the Claimant, Exhibits
“1” and “2”. Exhibit “1” reads
as follows:
“I Jennifer Acquah of
P.O. Box KIA 30632, Accra have
given my property with Land
Title Registry No. AR/6362/2002
and covered by Land Certificate
No. LVD 6250/02 dated 2nd
May, 2002 for a security to the
Tema Shop Owners Association
for a two (year) period.
This arrangement will therefore
expire on 1st
October, 2009”.
Exhibit “2”, is a Deed of
Mortgage between Jennifer Acquah
(the Claimant herein) and
Chrisline Financial Services
Limited, and is dated 4th
October, 2007. In the said
deed, Claimant is deemed to have
obtained a loan facility of
GH¢867,391 from the Plaintiff.
In the Writ of Summons issued
against the Defendants, the
Plaintiff was claiming the
following:
1.
Recovery of the sum of
GH¢36,515.62 which has been
outstanding since December 2008,
arising from credit facility
offered by Plaintiff to 1st
Defendant and secured by 2nd
and 3rd Defendant
which Defendants have failed to
pay.
2.
Interest thereon at the rate of
4% per month from
December, 2008 to date
of final payment.
3. Cost,
4.
Alternatively, Order for
Judicial sale of all that
property
No.1B 2nd EXH 57
Dansoman and registered as
AR/6466/96 and stamped as LVB
50174/17/96.
The Plaintiff obtained judgment
against the Defendants for the
sum endorsed on the Writ and an
order for the Judicial Sale of
the property No.1B 2nd
Exhibition Street, Dansoman.
The Plaintiff however proceeded
to attach the property described
as Awo Plaza, off Cantonment
Road, Osu.
The Plaintiff (designated
Defendant in this inquiry) did
not lead any evidence. The
Claimant was also designated
Plaintiff in this inquiry.
The Supreme Court, per Brobbey
JSC, in the case of In Re:
Ashalley Botwe Lands; Adjetey
Agbosu & Ors v. Kotey & Ors
[2003-2004] SCGLR 420,
reiterated the position of the
law that it is the duty of the
Plaintiff to prove what he
claimed he is entitled to.
However, if the court has to
make a determination of a fact
or of an issue and that
determination depends on
evaluation of facts and
evidence, the Defendant must
realise that the determination
cannot be made on nothing. If
the Defendant desires the
determination to be made in his
favour, then he has the duty to
help his own cause or case by
adducing before the court such
facts or evidence that will
induce the determination to made
in his favour.
The Supreme Court pointed out
that the logical sequel to this
is that if he leads no such
facts or evidence, the court
will be left with no choice but
to evaluate the entire case on
the basis of the evidence before
the court, which may turn out to
be only the evidence of the
Plaintiff. If the court chooses
to believe the only evidence on
record, the Plaintiff may win
and the Defendant may lose.
From the evidence adduced, there
is no doubt that the property in
question is for the Claimant.
Exhibits “A” and “B” are in the
name of the Claimant and there
are no other contrary documents
to challenge the title of the
Claimant, and the Plaintiff
failed to lead any evidence to
the contrary. It was the
Claimant’s testimony that her
property aforesaid had not been
used to secure the repayment of
any loan (s) granted to the
Defendants in the substantive
suit. Exhibit “1” which expired
on 1st October 2002,
mentioned that claimant offered
her property as security to the
Tema Shop Owners Association for
a two year period. The said
Tema shop Owners Association is
not known in this matter; the
Association has not been sued
neither has any judgment been
obtained by the Plaintiff
against the said Association.
There is also no evidence
whatsoever on record to link the
Defendant to the said
Association. I will find that
Exhibit “1” is so vague that it
is not of any probative effect.
Exhibit “2” relates to a
Mortgage Deed between the
Plaintiff and the Claimant. It
is dated 4th October,
2007 and relates to an amount of
GH¢867,391.26 obtained by the
Claimant from the Plaintiff.
There is no evidence that the
Plaintiff is seeking to recover
the said amount from the
Claimant which has resulted in a
court action and the Plaintiff
is calling on the mortgage. In
my opinion, there is no proof
that Exhibit “2” has any
reference to the present
proceedings.
The Claimant was not a party to
the suit that culminated in the
attachment of the Claimant’s
property. The Plaintiff was
granted an order for judicial
sale of property No.1B 2nd
Exhibition, Dansoman, Accra,
which was used to secure the
loan facility granted to the
Defendants. There has been no
order for the judicial sale of
the Claimant’s property. Since
the Claimant was not a party to
the proceedings and since the
Defendants in that suit are not
the owners of the attached
property, the property cannot be
attached and sold in
satisfaction of the judgment
debt obtained against the
Defendants. If the Plaintiff
believed that the Claimant had
mortgaged her property, she
should have been made a party as
a person interested in the
equity of redemption. See
The Republic v. High Court,
Accra, Ex-Parte Chinto [1993-94]
1GLR 159 at 160.
In the circumstances I hold that
the attachment of the property,
subject matter of the
interpleader is wrongful. l
therefore set aside the
attachment thereof.
Costs assessed at GH¢2,000 in
favour of the Claimant.
(SGD)
BARBARA
ACKAH-YENSU (J)
JUSTICE OF
THE HIGH COURT
COUNSEL
FOSTER GBONNEY
- PLAINTIFF
KWESI BLAY
- CLAIMANT |
