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JUDGMENT
By reason of a judgment obtained
by the Plaintiff/Judgment
Creditor, Exgrade Marketing
Limited (designated the
defendant in this inquiry)
against ASD Lumber Limited, the
former went into execution
attaching under a warrant of
execution, the movable and
immovable properties of ASD
Lumber Limited; the properties
in dispute. They did so because
they believed the properties
belonged to ASD Lumber Limited.
The Claimant herein, Divestiture
Implementation Committee (DIC),
issued an interpleader summons
claiming to be entitled to the
ownership of the properties.
Their claim is that all the
immovable and movable properties
were the property of Western
Veneer and Lumber Co. Ltd which
were being managed by ASD Lumber
Limited, after having been
vested in the Claimant by
Government of Ghana. This claim
was disputed by
Plaintiff/Judgment Creditor. The
matter was therefore tried
summarily to determine whether
or not indeed Claimant was the
rightful owner of the properties
in question.
DIC (designated Plaintiff),
adduced evidence in support of
its claim through Abena Bimpomaa
Boateng. Her evidence was that
the properties were divested in
2007. She said the properties
which were owned by Western
Veneer and Lumber Company were
divested to ASD Lumber Limited,
at a purchase price of US$3,
500,000. The offer letter
containing the terms and
conditions of the sale was
tendered in evidence as exhibit
“A”. Defendant was supposed to
pay the 1st
installment of US$350,000 by 29th
June, 2007, a 2nd
installment of US$350,000 by 28th
September, 2007 after which
Defendant was to be given a
right of entry. Defendant had
however made only one payment of
US$700,000, and per the said
terms of the sale, Defendant was
granted right of entry; exhibit
“B”; and Defendant started
operating from there. However,
since Defendant had not as yet
paid the total purchase price
Claimant had not given Defendant
the legal right to take
possession of the properties.
Under cross-examination, Abena
Boateng accepted that paragraph
2 of exhibit “B” permitted
Defendant to take possession of
the properties and operate.
Also, per paragraph 8 of exhibit
“A” the right of Claimant upon
default in payment by the
Defendant was to claim interest
at the Bank of Ghana Treasury
Bill rate. Plaintiff’s case
therefore is that Claimant’s
remedy is not recovery of the
properties from ASD Lumber
Limited.
The Judgment/Creditor (Defendant
herein) contested the claim per
the evidence of its Managing
Director, Dominic Mensah. His
evidence was that he was
originally dealing with Western
Veneer and Lumber Company., but
found out one day that the sign
board had been removed and
replaced with that of ASD Lumber
Limited. Upon enquiry he was
informed that Western Veneer and
Lumber Company had moved out and
had been replaced by ASD Lumber
Limited. He said he made
enquiries from one Dr. Badu, who
he described as “the owner” (I
presume of Western Veneer and
Lumber Co.), and Mr. Amparbeng,
the Chief Executive Officer of
ASD Lumber Limited.
It is a fact that ASD Lumber
Limited was operating from the
same premises that Western
Veneer and Lumber Company had
operated from and therefore had
possession of the properties.
The properties included
immovable property, and it is
trite learning that with regard
to ownership of property
possession is nine-tenth of the
law. The rule of the English
common law which has been
assimilated into the laws of
Ghana is that possession by
itself gives a good title
against the whole world except
someone having a better legal
right to possession:
Wuta-Ofei v Danquah [1961] 1 GLR
487. In other words,
exclusive possession of land
which cannot otherwise be
explained is taken as evidence
of ownership. See Aidoo v
Adjei & Others [1976] 1 GLR 431.
Title to land is the means by
which a person establishes his
right to land. A person’s title
indicates by what means he
claims to be the owner of land.
Title may take the form of
possession or it may take the
form of a document or series of
documents. In Ghana, it may also
take the form of a customary
grant which requires no writing
(Brown v Quashigah
[2003-2004] SCGLR 930). When
a person’s title to land is
challenged, what a court of law
is called upon to do is to
decide which of the contending
parties has a better title. It
is a known fact that DIC
acquires legal interest in
properties by way of statute;
Divestiture of State Interests
(Implementation) Act, 1993
(PNDCL 326).
The terms of the offer made to
ASD Lumber Limited did not only
state that any default shall
attract interest as submitted by
Counsel for the Judgment
Creditor, it also stated amongst
others that after ASD Lumber
Limited had made a 3rd
Installment payment of
US$1,050,000 on or before
September 26, 2008, the parties
shall execute a Sale & Purchase
Agreement. It states further
that after the payment of the 5th
and final Installment of
US$700,000 on or before June 29,
2010, DIC shall execute an
Instrument of Transfer of their
legal interest in the property
to it. The evidence placed
before the court is that ASD
Lumber Ltd had not made any
further payment apart from the
amount of US$700,000 it paid to
DIC. By the terms of the offer,
the 1st payment of
US$350,000 which represents 10%
of the purchase price is a
non-refundable commitment fee.
By virtue of the fact that ASD
Lumber Limited has made some
payments to DIC, ASD Lumber
Limited has an equitable
interest in the properties in
question. It is also a fact that
per the terms of exhibit “A” DIC
would only transfer legal title
to ASD Lumber Limited after
completion of payment. Thus,
title has not passed from DIC to
ASD Lumber Limited, and so the
Government of Ghana, through
DIC, still has the legal
interest/title; which is a
superior interest. In my opinion
therefore Plaintiff /Judgment
Creditor cannot attach the
properties in question and sell
them.
In the circumstances, I hold
that the attachment of the
properties, subject matter of
the interpleader, is wrongful. I
therefore set aside the
attachment.
Costs of GH¢1,000.00 awarded in
favour of Claimant.
(SGD)
BARBARA ACKAH-YENSU(J)
JUSTICE OF THE HIGH COURT
COUNSEL
BRAM LARBI -
PLAINTIFF
FOSTER GBONNEY -
CLAIMANT
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