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JUDGMENT:
By reason of a Judgment obtained
by the Judgment Creditor, Edward
Addo (designated the Defendant
in this inquiry) against Mr.
Isaac Ankrah and Mrs. Ahema
Ankrah, the former went into
execution attaching under
warrant of execution; (1) Dodge
Ram vehicle with Registration
Number AS 3357; (2) Unnumbered
House at Kasoa and Honda saloon
car with Registration No. GR
6572E; and (3) Isuzu Space Cab
with Registration No. GR 674
-09. Plaintiff did so because
it believed they were properties
that were owned by Mr. and Mrs.
Ankrah.
The Claimants (designated as
Plaintiffs in this inquiry)
issued interpleader summons
claiming ownership of the
properties in question. The 1st
Claimant is claiming ownership
of the Dodge Ram vehicle with
Registration Number AS 3357 V.
The 2nd Claimant is
claiming ownership of Unnumbered
House at Kasoa and also the
Honda Saloon Car with
Registration No. GR 6572E. The
3rd Claimant is
claiming ownership of the Isuzu
Space Cab with Registration No.
GR. 674-09.
The 1st Claimant came
to Court himself to give
evidence, and his evidence was
that he bought the Dodge Ram
vehicle together with the
Plaintiff, who he referred to as
his friend, in 2002 in New York,
USA. He said that the
arrangement was that he would
sell the vehicle in Ghana but he
did not get a buyer. The 1st
Claimant’s further evidence was
that he registered the vehicle
in his name because he borrowed
money ($3,600) to pay for the
duty but because he could not
pay back the money the person
who lent him the money insisted
that he use his picture as the
original owner of the vehicle to
register the vehicle (Exhibit
“A”). I must state here that I
do not believe 1st
Claimant’s evidence that the
person who allegedly lent him
the money to pay the import duty
bears the same name as the
Plaintiff; i.e. Akwasi Ofori. I
believe that it was the name of
the Plaintiff that was used to
register the vehicle, but the
picture of another person was
used.
1st Claimant
testified further that he came
back to Ghana only to find that
the vehicle was nowhere to be
found. He reported this to the
Police and the vehicle was
subsequently traced to the house
of the Defendants in Kasoa. The
vehicle was impounded by the
Police and it was consequent to
this that the Plaintiff wrote
Exhibit “B” in which he stated
that the vehicle had been given
to the 1st
Defendant/Judgment Debtor for
safekeeping.
The evidence of the lawful
attorney of the 2nd
Claimant, Isaac Abbeyquaye, and
Joseph Arhin who also testified
on behalf of the 2nd
Claimant, was that the Honda
Accord vehicle and landed
property attached in execution
were the properties of 2nd
Claimant. In support of this
claim, Isaac Abbeyguaye tendered
in evidence copies of Form A
(Form of Application for
Registration of a Motor Vehicle)
in the name of the 2nd
Claimant; and a Certificate of
Insurance, also in the name of
the 2nd Claimant.
With regard to the house in
Kasoa that was also attached in
execution, neither Isaac
Abbeyquaye nor Joseph Arhin
tendered in evidence any
document to prove ownership of
the property by the 2nd
Claimant. The evidence of Isaac
Abbeyquaye was that the house in
question was constructed by the
2nd Claimant on
family land. The house, he
said, was presently being
occupied by members of the
family, including the
Defendants/Judgment Debtors.
Joseph Arhin also testified that
the 2nd
Defendant/Judgment Debtor is the
eldest daughter of the 2nd
Claimant.
John Amankwah testified on
behalf of the 3rd
Claimant in respect of the Isuzu
Space Cab. He tendered in
evidence the registration
documents (Exhibit “H”) and
Official Receipt for the
Insurance Policy. John Amankwah
is also a grandson of the 2nd
Claimant and a nephew of the 3rd
Claimant. He also lives in the
same disputed house in Kasoa.
The Plaintiff/Judgment Creditor
contested the claim, and adduced
evidence through his junior
brother, Badu Otabil. His
evidence was that the 1st
Claimant was together with the
Plaintiff in New York when the
Dodge Ram vehicle was exported
to Ghana. It was the 1st
Claimant’s brother who cleared
the vehicle from the port. 1st.Claimant
returned to Ghana shortly
thereafter and through some
“dubious” means managed to
register the vehicle in the name
of 1st Claimant’s
junior brother.
Badu Otabil tendered in evidence
a copy of the Application form
and Certificate of Ownership of
a Motor vehicle (Form “C”) which
indicated that the said vehicle
had been transferred from Seth
Obeng-Manu to Badu Otabil
(Exhibit “1”); together with
registration documents
indicating that the said vehicle
was registered in the name of
the Plaintiff, a.k.a. Akwasi
Ofori. The receipt for payment
of customs duties and
Certificate of Payment of
Customs Duties were both in the
name of Akwasi Ofori. The
further evidence of Badu Otabil
was that even though the
Plaintiff/Judgment Creditor’s
name was stated as the original
owner of the vehicle, the
picture was not that of the
Plaintiff, but the junior
brother of the 1st
Claimant. He stated that he did
a second registration of the
vehicle when he found out that
the vehicle had been
fraudulently registered in the
name of the brother of the 1st
Claimant.
The evidence of Badu Otabil with
regard to the Isuzu Space Cab
and the Honda Accord was that to
the best of his knowledge, the
said vehicles belonged to the 1st
Defendant/Judgment Debtor. He
said the 1st
Defendant told him that the
vehicles belonged to him and
they had used the vehicles on a
number of occasions to run
errands. Badu Otabil’s further
evidence was that he was again
told by the 1st
Defendant that the house that
was attached was the property of
the Defendants/Judgment Debtors;
and that is where they lived.
As already indicated, the 2nd
Claimant is claiming ownership
of the landed property in
dispute, but the Judgement
Creditor is claiming that the
said house is owned by the
Judgment Debtors. The position
of the law is that the 2nd
Claimant bore the onus to prove
ownership. The concept of
ownership of land embraces
possession of and title to
land. An owner of land is the
person who can show that he and
those whom he claims title have
possessed the land for so long
that there can be no reasonable
probability of the existence of
a superior adverse claim. In
showing this he may rely on
documents of title or on mere
possession. In the instant suit,
as already stated, the 2nd
Claimant did not tender any
title document in evidence.
There was no evidence adduced to
prove that 2nd
Claimant is in possession of the
land in dispute. The evidence
however is that the
Defendants/Judgment Debtors live
in the house in dispute.
The principle of law is that the
person in possession is deemed
to be the owner and his
possession is good against the
whole world except the true
owner. This principle is
enunciated in Wuta-Ofei v.
Danquah [1964] 1GLR 487, and
Aidoo v. Adjei & others
[1976] 1GLR 431. However,
the undisputed evidence before
the Court is that it is not only
the Defendants/Judgment Debtors
who live in the house in
dispute; almost all the
witnesses who testified in this
case are members of the same
family and live in the house in
dispute. The house is family
property. Again, the undisputed
evidence is that the house in
dispute was constructed on
family land. A fundamental rule
of customary law is that any
building erected on family land
by a member of the family
becomes family property. The
member cannot therefore make any
disposition of such a building
inter vivos, even if limited to
his life, without the consent
and concurrence of the head and
principal members of the family.
As sated above, the onus was on
the 2nd Claimant to
prove that he is the owner of
the property in question; he who
alleges must prove. This general
principle as enunciated in the
case of Ababio v Akwasi 111
[1994-95] Ghana Bar Report, Part
11, 74 is that a party whose
pleadings raise an issue
essential to the success of the
case assumes the burden of
proving such issue. However, as
stated by Justice Mensa Boison
JA in the case of Acquaye v
Awotwi [1982-83] 2GLR 110,
the testimony of a plaintiff is
presumptive evidence which is
rebuttable. The well-known rule
of evidence is that although
proof in a civil case rested on
the plaintiff, that burden was
discharged once the plaintiff
had introduced sufficient
evidence of the probability of
his case. The burden then
shifted to the Defendant to
rebut the plaintiff’s evidence.
Thus, the defendant in this
inquiry, Plaintiff/Judgment
Creditor, had a duty to rebut
the evidence adduced on behalf
of the 2nd Claimant.
The Plaintiff/Judgment Creditor
therefore bore a duty to prove
that the property in dispute
belongs to the
Defendants/Judgment Debtors, but
it did not lead a scintilla of
evidence. The evidence, as
stated above, is that the
disputed house is family
property. It is therefore not
the sort of property that is
executable. The 2nd
Claimant’s claim has thus been
balanced out by the
Plaintiff/Judgment Creditor’s
claim, and so neither the
Plaintiff/Judgment Creditor nor
the 2nd Claimant has
established his case.
With regard to the Dodge Ram
vehicle, there is evidence that
the vehicle has two
registrations; one in the name
of the 1st Claimant
(Exhibit “A”), and another in
the name of the
Plaintiff/Judgment Creditor’s
representative, Badu Otabil
(Exhibit “1”). However the
evidence of the 1st
Claimant, which evidence I
accept, is that the
Plaintiff/Judgment Creditor
contributed $3,000 towards the
purchase of the vehicle, while
the 1st Claimant
contributed $4,600. Plaintiff’s
representative did not challenge
this piece of evidence. The
evidence therefore is that the 1st
Claimant is part-owner of the
vehicle.
The 2nd and 3rd
Defendants tendered in evidence,
copies of their registration
documents in respect of the
Honda Accord and Isuzu Space Cab
vehicles. It was therefore the
duty of the Plaintiff/Judgment
Creditor to rebut the evidence
adduced on behalf of the 2nd
and 3rd Claimants,
but the only evidence led by his
representative, Badu Otabil, was
that it was the 1st
Defendant/Judgment Debtor who
told him that the said vehicles
belonged to him. This is not
sufficient evidence to establish
that the vehicles were owned by
the 1st Defendant and
therefore the Plaintiff/Judgment
Creditor has failed in his
claim.
In conclusion, I will partially
allow the 2nd
Claimant’s claim with regard to
the Dodge Ram vehicle; 2nd
Claimant is declared part-owner
of the said vehicle. It is
directed that the sale of the
vehicle should proceed subject
to the right of the 2nd
Claimant and order sale of the
vehicle and the proceeds of the
sale to be shared in proportions
as will be agreed to between the
Plaintiff/Judgment Creditor and
the 1st Claimant. The
attachment of the Unnumbered
House in Kasoa, the Honda Accord
and the Isuzu Space Cab vehicles
is held to be wrongful and there
the attachment is accordingly
set aside.
Costs of GH¢1,000 each awarded
in favour of the 2nd
and 3rd Defendants.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
KWAME AMANKWAH TWUM -
CLAIMANTS
COSMAS ANDOH
- PLAINTIFF/JUDGMENT CREDITOR |
