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JUDGMENT
1. On the 9th
day of March 2009, this court
entered judgment in favour of
the Defendant/Execution Creditor
in the instant proceedings, the
Plaintiff/Judgment Creditor in
the substantive proceedings
which has given rise to this
interpleader.
2. The judgment under
execution was consequent upon
terms of settlement filed in the
substantive suit which was
adopted by this court as the
consent judgment of the parties
themselves and made all the
Defendants/Judgment Debtors by
their own consent, liable for
execution therefrom.
3. The judgment was duly
entered and as part of the
process of execution, the
property known as Parcel No. 7
Block 1 Section 090 situate at
East airport in the Greater
Accra Region of Ghana was
attached.
4. The
Plaintiff/Claimant herein
claimed by way of interpleader
the said property. The
Defendant/Execution Creditor
disputed the claim whereupon the
parties were upon the
application of the Registrar of
this court directed to appear
for a determination of the
dispute.
5. In view of the fact
that the property in issue not
being one encumbered by the
transaction which gave rise to
the substantive action between
the parties, this court pursuant
to order 44 rule 13 (1) (b) of
CI 47 made directions for the
determination of the
interpleader by directing that
the claimant shall be Plaintiff
in the trial with the duty to
begin while the Execution
Creditor shall be Defendant.
6. Both parties to the
proceedings filed issues for
determination all of which I
have set out in this ruling as
follows:
(a). Whether or not the
Plaintiff/Claimant is the legal
and/or beneficial owner of the
property known as Parcel No. 7
Block 1 Section 090 situate at
East Airport in the Greater
Accra Region of Ghana.
(b). Whether or not the
purported attachment of the
Plaintiff/Claimant’s property at
East Airport Accra in
satisfaction of a judgment
obtained against Alfredos
Manufacturing and Trading Ltd.
was proper.
(c). Whether or not the
purported attachment of the
Plaintiff/Claimant’s property at
East Airport in Accra was
irregular, wrongful and or
illegal as it was not covered by
the writ of attachment issued
under the hand of the Chief
Justice at the instance of the
Defendant/Execution Creditor.
(d). Whether Mr. Joseph
Karam is a nominal director of
the Plaintiff/Claimant.
(e). Whether the property,
Parcel No. 7 Block 1 Section 090
at East Airport was owned by
Mrs. Pascal Georges Kandalaft
Karam.
(f). Whether the purported
assignment of the said property
at East Airport by Mrs. Karam to
Plaintiff/Claimant on 7th
May 2009 was proper.
(g). Whether the
Plaintiff/Claimant did diligent
searches on the property before
the purported assignment was
executed.
(h). Whether Joseph Karam
used Plaintiff/Claimant’s
purported grantor’s name as a
front for his interest in the
business entity of the
Plaintiff/Claimant.
(i). Whether
the Plaintiff/Claimant is
entitled to its claim.
(j). Any
other issues arising from
pleadings filed.
7. DETERMINATION
OF ISSUES
The issues proposed by the
parties and set down for
determination will no doubt
effectively determine the
dispute between the parties. The
law is trite that a party who
asserts a fact assumes the
responsibility of proving same.
The burden of producing evidence
as well as the burden of
persuasion is therefore cast on
such a party and the standard of
proof required to discharge the
burden is one of “preponderance
of the probabilities” by virtue
of Section 12(1) of the Evidence
Act 1975 (NRCD 323). Under
Section 12(2) of the Act. That
standard of proof has been
defined as:
“……………….That degree of certainty
of belief in the mind of the
tribunal of fact or the court by
which it is convinced that the
existence of a fact is more
probable than its non –
existence”
Further under Section 11(4) of
NRCD 323 the burden of producing
evidence is discharged when a
party produces “……….sufficient
evidence so that on all the
evidence a reasonable mind could
conclude that the existence of a
fact was more probable than its
non – existence”.
8. In our jurisprudence,
judicial opinions of superior
courts have defined the scope of
the standard and burden of proof
parties carry in proof of facts
averred to in judicial
proceedings. There are however
situations where legal
procedural issues affect a
party’s claim or defence which
however iron cast may make
evidence admissible.
9. The Supreme Court in
the case of ABABIO VRS. AKWASI
III [1994 – 95] GBR 774
reiterated the point of a party
proving an issue asserted in his
pleadings. At page 777 Aikins
JSC delivering the lead opinion
stated thus:
“The general principle of law is
that it is the duty of a
Plaintiff to prove his case i.e.
he must prove what he alleges.
In other words, it is the party
who raises in his pleadings an
issue essential to the success
of his case who assumes the
burden of proving it. The burden
only shifts to the defence to
lead sufficient evidence to tip
the scales in his favour when on
a particular issue the Plaintiff
leads some evidence to prove his
claim. If the Defendant succeeds
in doing this, he wins; if not,
he loses on that particular
issue”
See also BANK OF WEST AFRICA
LTD. VRS. ACKUM [1963] 1GLR 176.
10. It is in the context
of the above statutory standards
and judicially defined by case
law authority that the pleadings
and evidence of the
Claimant/Plaintiff will be
examined evaluated and weighed
on the imaginary scale with the
view to determining its
credibility, relevance and
probative value in arriving at
the issues set down for
determination and the issues of
law arising from the evidence.
11.
PLAINTIFF/CLAIMANT’S EVIDENCE
Plaintiff/Claimant’s evidence
was adduced through Razak
Olayode Apalara a legal
practitioner in the Federal
Republic of Nigeria who is
company secretary of the
Plaintiff/Claimant’s company
incorporated in February 2009
per Exhibit ‘A’ the certificate
of incorporation. The witness
tendered other documents as
evidence of due incorporation
admitted as Exhibits ‘B’, ‘C’
and ‘D’. In Exhibit ‘B’ the name
of a certain Joseph Maurice
Karam had been removed from the
Board of Directors while Elias
Anthony Daboul had been removed
as Company Secretary and in its
place Razak Olayode Apalara. In
the same Exhibit, Joseph Maurice
Karam a Defendant/Judgment
Debtor in the substantive suit
had also been removed as
Director thereof the
Claimant/Plaintiff company.
12. The
Claimant/Plaintiff’s witness
tendered other Exhibits intended
to prove the existence of a
sister company of the
Claimant/Plaintiff called
Petrostar Nigeria Ltd. together
with the profile and a Corporate
Policy statement. I must confess
that I donot find the relevance
of the evidence on the existence
of Petrostar Nigeria Ltd. in the
context of the present dispute
between the parties.
13. Perhaps however, of
relevance is the witness’
testimony that after conducting
due diligence in the Land Title
Registry by way of search they
Claimants/Plaintiffs herein
negotiated to purchase the
attached property. Not having
found any charge or encumbrance
thereon, Claimant/Plaintiff
according to the witness
proceeded to purchase same from
Mrs. Karam undisputedly the
spouse of Joseph Maurice Karam a
former director of the
Claimant/Plaintiff and a
Defendant/Judgment Debtor in the
substantive proceedings. Witness
testified that the purpose of
the acquisition of the property
was to construct a shopping mall
for which project consultants
have been commissioned. The
search report at the Land Title
Registry was admitted in
evidence as Exhibit ‘G’ and is
dated 15/4/2009 from the Land
Title Registry. In further
testimony Exhibits ‘H’ and ‘H1’
being photocopies of cheques
issued for the payment of the
purchase price dated 31/5/2009
and 30/6/2009 were admitted in
evidence.
14. Furthermore,
Plaintiff/Claimant’s witness
tendered Exhibit ‘J’ a Land
Certificate issued in favour of
the Claimant/Plaintiff’s grantor
which interest was assigned to
Plaintiff/Claimant before it
took physical possession of the
subject matter by erecting a
fence and by putting a security
guard at post to secure same.
15. Claimant/Plaintiff’s
witness denied the existence of
any relationship with the
Defendant/Execution Creditor
adding that the subject of the
interpleader was never used as a
collateral security by the owner
for the facility the
Defendant/Judgment Debtors in
the substantive suit obtained
from the Plaintiff/Execution
Creditor (now Defendant) which
gave rise to the substantive
judgment.
16. Pertinently,
Plaintiff/Claimant’s witness
denied the allegation contained
in the Defendant/Execution
Creditor’s Statement of Defence
that the Plaintiff/Claimant
merely acted as a front to
overreach the
Defendant/Execution Creditor’s
execution process.
To a question under
examination in chief as follows:
“Q. Now the Defendant is
also denying that your grantor
had acquired the property in
question before they even
granted the facility to Alfredos
(1st Defendant/
Judgment Debtor in the
substantive suit). What is your
reaction to that?
Plaintiff/Claimant’s witness
answered as follows:
A. That is true. I have
had the opportunity of reading
all the processes relating to
the main suit and I discovered
that our own grantor acquired an
interest in this property as far
back as 2006. When in actual
fact the transaction that led to
the main suit was effected some
time in 2008. So the properties
were in existence before the
facilities were granted”.
17. In further testimony,
Plaintiff/Claimant’s witness
emphasised that their grantor
Mrs. Pascal Karam has no
interest in the company either
as Director or shareholder and
upon examination of her Land
Certificate on the subject
matter, there being no
endorsement of any encumbrance
on same, Plaintiff/Claimant
proceeded to purchase same.
18. Under cross
examination by
Defendant/Execution Creditor’s
counsel, issues were raised
about the role played by the
witness prior to the
regularisation of his position
as company secretary of the
Plaintiff/Claimant. I donot
think those issues save the
earlier position of directorship
held by Joseph Karam a judgment
Debtor in the substantive suit
is relevant in the determination
of the issues set down nor any
issues of law arising therefrom.
19. In further cross
examination it was established
that No. 17 Dadeban Road, North
Industrial Area Accra is a
property and place of business
of Joseph Maurice Karam a
Defendant/Judgment Debtor in the
substantive suit and that the
Plaintiff/Claimant herein had
used the said address as its
registered address though
witness for the
Claimant/Plaintiff testified
that the Claimant has since
changed its registered address.
It was also established under
cross examination that P. O. Box
198 Accra North endorsed as the
Plaintiff/Claimant’s address in
exhibit ‘G’ and the address
endorsed on Exhibit J the Land
Certificate of
Plaintiff/Claimant’s vendor is
the same address endorsed
against the name of Joseph Karam
on the Plaintiff/Claimant’s
incorporation documents. Given
the nature of the
Defendant/Execution Creditor’s
pleadings and its dispute to the
claim, this evidence is relevant
but whether it carries such
weight and value as to
controvert the evidence of
Plaintiff/Claimant’s grantor’s
title will be determined at the
end of the evaluation of the
entire evidence.
20. Under further cross
examination, counsel for the
Defendant/Execution Creditor
questioned Plaintiff/ Claimant’s
witness about the role played by
one Mr. Kwabena Manu who
assisted in the processes of
Conveyance of the subject matter
in favour of the
Claimant/Plaintiff. While
claimant’s witness was of the
position that it was the
Plaintiff/Claimant who
instructed Mr. Manu, he admitted
that Joseph Maurice Karam played
a limited role when he answered
questions as follows:
“Q. Did Mr. Anthony Elias
Daboul do anything specifically
in relation to the registration?
What did he do?
A. He eventually paid for
the registration. The company
paid for the registration.
Q. And Mr. Joseph Maurice
Karam, did he play any specific
role in relation to this
assignment?
A. He
probably introduced Mr. Manu.
Q. Sir, did he do
anything apart from just
introducing Mr. Manu?
A. I donot
know any other thing.
Q. I am suggesting to you
that indeed Mr. Joseph Maurice
Karam is the one who did
everything including collecting
the certificate and then you
played no role.
A. I deny that
suggestion…………………………………
Q. Chief, it was Mr.
Maurice Karam who presented the
application for registration.
Nobody else, not you not Anthony
Daboul, and not Mr. Manu. It was
Maurice Karam who presented the
application.
A. I deny your
suggestion. Petrostar
International Limited presented
their documents for registration
to Manu.
Q. Sir, I am further
suggesting to you that it was
Mr. Karam who followed up to
process the conversion of this
title from his wife’s name to
Petrostar’s name.
A. That is
not true”.
21. I donot wish to make
any further reproduction of the
evidence adduced nor to state
any full examination and
evaluation of same in any more
detail. Suffice it to say that I
have exhaustively examined same
and have balanced same on the
imaginary scale in order to
determine whether or not the
evidence of the
Plaintiff/Claimant’s witness has
been impeached, discredited,
contradicted or that the
witness’s credibility has been
battered. I understand the
difficulty counsel for the
Defendant/Execution Creditor
experienced in these
proceedings. With the evidence
of title undeniably in the name
of the Plaintiff/Claimant’s
grantor which passed to the
Plaintiff/Claimant, the burden
on the Defendant/Execution
Creditor is no mean one. My
conclusion at the close of cross
examination of the Plaintiff’s
Claimant’s witness is that the
evidence adduced is admissible,
credible, and relevant in the
determination of the issues set
down for trial. In my view the
evidence could not be
discredited, nor contradicted in
material way.
22. According to Brobbey
JSC in his book “Practice and
Procedure in the Trial Courts
and Tribunals of Ghana” Volume
1. Paragraph 1210.
“The objects of cross
examination are twofold. First,
it is to weaken or nullify the
opponents case, and secondly, it
is to establish facts which are
favourable to the cross
examiner. In effect cross
examination aims at testing the
accuracy of the witness’
evidence and at giving the
witness the chance to deal with
the case of the cross
examiner……………….”
23. It is my view that it
is sometimes an opportunity to
attack the credibility of the
witness provided there is
sufficient material:
particularly evidence of
previous testimony or
documentary evidence to do so.
In all these respects it is my
opinion that the
Defendant/Execution Creditor’s
counsel failed except of course
to put his own case across
through Plaintiff/Claimant’s
witness, suggestions which were
wholly denied by
Plaintiff/Claimant’s witness.
24. The effect of the
evidence adduced of the case of
the Plaintiff/Claimant’s case is
that, there is in evidence the
existence of Plaintiff/Claimant
as an entity registered under
the laws of Ghana and that the
corporate entity has acquired
title in land in pursuance of
the Land Title Registration Act,
1986 PNDCL 152. The
Plaintiff/Claimant’s interest
has been affected by an
execution process permissible by
law and has applied to this
court for relief. The
Defendant/Execution Creditor has
contested the claim of the
Plaintiff/Claimant hence the
instant proceedings.
25. In my opinion numerous
issues as set down by the
parties as well as issues
dictated by law have arisen in
the scenario summarised above.
26. I donot think as
between the parties in this
dispute, there is any doubt
about the right of the
Defendant/Execution Creditor to
attach any property it considers
as belonging to any of the
Defendants/Judgment Debtors in
the substantive suit whether or
not the property is the subject
of collateral security under the
contract giving rise to the
judgment and the execution
process. Such attachment
however, is regulated by law and
in the context of the issues in
these proceedings for any
property to be lawfully attached
it ought to belong to the
Defendants/Judgment Debtors by
the evidence. Further, as the
Defendant/Execution Creditor has
pleaded in its statement of
defence (facts) such attached
property for all intends and
purposes is owned by one or more
of the Defendants/Judgment
Debtors in the substantive
proceedings but have been
conveniently masqueraded through
some other third party being
used as a front for the purposes
of defeating the course of
justice by overreaching the
Defendant/Execution Creditor in
the lawful execution of the
judgment of this court.
27. In the case of KUMAH
VRS. HIMAH [1977] 1GLR 204,
Apaloo CJ (of blessed memory)
set down the principle and the
legal limits of an Execution
Creditor from whom a purchaser
had acquired an interest which
has been challenged by the true
owner. He said at holding (3) as
follows:
“A certificate of purchase
issued after a court sale under
a writ of fifa did not in itself
confer an indefeasible title.
The purchaser stepped into the
shoes of the Execution Debtor
and purchased only such right,
title, or interest as the
Execution Debtor could be shown
by admissible evidence to have
had”.
28. My understanding of
this principle is that in order
to succeed, Defendant/Executor
Creditor has a duty to impeach
the evidence of title vested in
the Plaintiff/Claimant’s grantor
which the Plaintiff/Claimant
acquired by assignment of all
the interest of their grantor’s
title as evidenced by Exhibit
‘J’. If the Defendant/Execution
Creditor succeeds, it wins, if
it does not succeed the
attachment will fail.
29. Now, it is provided
pursuant to Section 43 of the
Land Title Registration Act 1986
PNDCL 152 as follows:
“43.
INDEFEASIBILITY OF REGISTRATION
(1). Subject to subsections
(2) (3) and (4) of this section
and to section 48, the rights of
a registered proprietor of land
whether acquired on first
registration or acquired
subsequently for valuable
consideration or by an order of
a court, are indefeasible and
shall be held by the proprietor
together with the privileges and
appurtenances attaching to land
free from any other interests
and claims.
(2). The rights of a
proprietor are subject to the
interests or any other
encumbrances and conditions
shown in the land register”.
Such is the nature of the
interest of the
Plaintiff/Claimant in the
subject matter of attachment in
these proceedings which is prama
facie indefeasible.
30. The grounds and
circumstances under which a
court may set aside or cancel a
certificate or otherwise hold
that it does not truly represent
what on the face of it purports
to represent have been set out
in the judgment of the Supreme
Court in the case of BROWN VRS.
QUASHIGAH [2003 - 2004] SCGLR
930 where in dismissing the
appeal by a unanimous decision,
the court held inter alia at
holdings (4) and (5) as follows:
“(4). Under section 43 (1) –
(4) and 48 of the Land Title
Registration Law, 1986 (PNDCL
152) the rights of a registered
proprietor of land acquired for
valuable consideration or by an
order of court shall be
indefeasible and shall be held
by the proprietor together with
all privileges and appurtenances
attaching thereto free from all
other interests and claims
whatsoever. An indefeasible
title meant a complete answer to
all adverse claims on mere
production of the certificate.
However an indefeasible title
was subject to overriding
interest such as stated in
Section 4(1) (f) of the law,
namely, “rights, whether
acquired by customary law or
otherwise, of every person in
actual occupation of the land
save where an enquiry is made of
such person and the rights are
not disclosed”.
(5). Under section 122(1)
of the Land Title Registration
law PNDCL 152, a court might in
its discretion, order
cancellation of a Land
Certificate issued pursuant to
the law on grounds of fraud or
mistake materially affecting the
interest of the proprietor. And
by fraud, was meant dishonesty.
However under Section 122(2) of
PNDCL 152 the register “shall
not be rectified …………..unless
such proprietor had knowledge of
the omission, fraud or mistake
in consequence of which the
rectification is sought or had
himself caused such omission,
fraud or mistake(es)
substantially contributed to it
by this act, neglect or
default”.
31. If I have to find that
the attachment of the subject
matter in the instant
proceedings is lawful and proper
it being covered by a Land
Certificate, I have to establish
by the evidence adduced that the
Plaintiff/Claimant’s grantor
Mrs. Karam acquired same from
one of the Defendants/Judgment
Debtors particularly Joseph
Maurice Karam either by mistake
or fraudulently (dishonestly) or
through some form of omission
the Plaintiff/Claimant’s grantor
had caused by herself thereby
making the title she acquired
under the Land Certificate
imperfect for all purposes which
imperfection would by
implication affect the rights
her grantees, Plaintiff/Claimant
herein who have acquired same
assignees.
32. In my examination and
evaluation of the evidence
adduced by the
Plaintiff/Claimant and the cross
examination conducted by the
Defendant/Execution Creditors
counsel, I have made efforts to
establish from the evidence the
sense in which
Defendant/Execution Creditor
disputed the claim and has
contested it to the fullest on
grounds that Mrs. Karam the
earlier proprietor and
Plaintiff/Claimant’s assignor
was a mere front for one or more
of the Defendants/Judgment
Debtors in the substantive suit
particular Mr. Joseph Maurice
Karam. I find no such evidence
impeaching the claim at this
stage.
33. I have further
explored the common law position
with the view to establishing
whether or not by her root of
title, Mrs. Karam’s title which
she assigned to the
Plaintiff/Claimant herein is
affected by any of the four
unities with one or more of the
Defendants/Judgment Debtors in
the substantive suit. They are
(i).
unity of possession
(ii).
Unity of interest
(iii).
Unity of title, and
(iv).
Unity of time.
From the evidence nothing in the
like has been established.
34. With respect to fraud
it is clear from the written
address of the
Defendant/Execution Creditor
that no fraud or mistake was
alleged, on the face of the
Defendant/Execution Creditors
pleadings and nothing in the
like particularised. I shall
address the issue of fraud later
in this judgment.
35. It is on the premises
of all I have herein before
stated that based on the
standard and burden of proof on
the parties, I hereby resolve
issues (a) (e) and (f) in favour
of the Plaintiff/Claimant and
further find and hold that the
Plaintiff/Claimant herein having
acquired its interest from
Pascal Georges Kandalaft Karam
is the legal and or beneficial
owner of the property known as
Parcel No. 7 Block 1 090 situate
at East Airport in the Greater
Accra Region of Ghana and
furthermore that the assignment
of the said property to the
Plaintiff/Claimant on the 7th
May 2009 is consequently proper.
I also find hereby on the
strength of the evidence adduced
that Joseph Karam was a nominal
director of the
Plaintiff/Claimant company an
issue set out for determination
in this suit.
36. How and what did the
Defendant/Executor Creditor
present in rebuttal so as to
attract a determination in its
favour inspite of the finding
above?
37. The position of the
Defendant/Execution Creditor had
been more appropriately
described by Brobbey JSC in the
case of IN RE ASHALLEY BOTWE
LANDS: ADJETEY AGBOSU & ORS.
VRS. KOTEY & ORS. [2003 – 2004]
SCGLR 420 and I cannot do any
better that to reproduce what he
said. In his supporting opinion
Brobbey JSC stated of a
Defendant at a trial in Holding
5 as follows:
“The effect of Sections 11(1)
and 14 and similar Sections in
the Evidence Decree 1975 may be
described as follows:
A litigant who is a Defendant in
a civil case does not need to
prove anything. The Plaintiff
who took the Defendant to court
has to prove what he claims he
is entitled to from the
Defendant. At the same time 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 be
made in his favour. 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………………………”
38. It is important to
state here that the instant
proceedings did not commence by
writ. It is a complex
interpleader process which the
court directed for trial by
ordering the claimant to be
Plaintiff and the Execution
Creditor to be a Defendant for
the determination of the claim.
All parties were ordered to file
pleadings or statements of fact.
From the pleadings filed, issues
were clearly joined. And arising
from the pleadings issues were
set down for determination. The
Defendant/Execution Creditor did
file an exhaustive amended
statement pleading facts and has
adduced evidence to support its
dispute over the
Plaintiff/Claimant’s claim.
39. I have examined the
evidence adduced by the
Defendant/Execution Creditor’s
witnesses from Mrs. Kafui Aryee,
David Aguda, Nuku Attipoe and
John Bour. To say the least, the
entire evidence of these
witnesses only present to me an
unconvincing account based on
the presumption that the oral
assertions by Joseph Maurice
Karam to the Defendant/Execution
Creditor’s officers that the
subject matter of this dispute
belongs to him notwithstanding
the documentary evidence as in
Exhibits ‘G’ and ‘J’ ought to be
construed as more credible and
particularly must take
precedence over the
Plaintiff/Claimant’s Land
Certificate. That demonstrates
nothing but an unacceptable
proposition in our law of
evidence and conveyancing and
the fact that
Defendant/Execution Creditor’s
officers without any evidential
basis accepted Mr. Joseph
Karam’s claims to ownership as
divine truth.
40. I will for purposes of
emphasis reproduce part of the
evidence adduced during cross
examination of DW1 Mrs. Kafui
Aryee.
“Q. You will agree with me
that the facility was between
your bank and Alfredos
Manufacturing?
A. Yes.
Q. Mrs. Pascal Karam
(Plaintiff/Claimant’s grantor
that is) was not a party in that
transaction?
A. Yes my
lord. She was not.
Q. Petrostar
International Trading Limited
was also not a party to the
transaction?
A. No my
lord………………………………………………….
Q. On the last page of
Exhibit ‘2’ you Madam Georgette
Kafui Aryee signed the
commitment letter that you will
be responsible for the
collection of the facility?
A. Yes My
Lord.
Q. So you are
in a very precarious position?
A. Very.
Q. That is
why you are even in this seat
today?
A. Yes my
lord.
Q. As you sit here the
relationship manager who worked
on the initial stages of the
facility you never came across a
search document on Joseph
Karam’s office premises.
A. No my lord, because we
picked the Metalloplastica
building for our collateral, we
conducted a search on that one
and not the office premises
because that was not part of it.
Q. So you did not conduct
a search also on Joseph Karam’s
Tesano residence?
A. No my
lord.
Q. The Defendant bank
also did not conduct a search on
the Silos at the North
Industrial Area?
A. No my
lord.
Q. And you also did not
conduct a search on the Spintex
property?
A. No my
lord. (subject matter of this
dispute).
……………………………………………………………
Q. You are also aware
that the Tesano residence was
rented by Joseph Karam.
A. Yes my
lord.
Q. Now you are also aware
at the time the Defendant
granted the facility to
Alfredos, Mrs. Pascal Karam was
the owner of the Spintex
property (subject matter of this
dispute).
A. Yes my
lord. (The emphasis is mine)
Q. It is normal in
banking business to take
properties of third parties as
collateral for a customer’s
facility?
A. So far as the third
party agrees to it and signs an
affidavit to the effect.
Q. In this case no third
party signed any affidavit in
respect of the Spintex property?
Though counsel for the
Defendant/Execution Creditor
objected to the question, the
objection was overruled and the
witness answered thus.
A. We did not
pick the Spintex property as
security”.
41. In fairness to the
witness she denied suggestions
which had disputed
Defendant/Execution Creditor’s
case that Mr. Joseph Karam
bought the property and put it
in the name of his wife for
convenience.
42. In my view however a
denial per se of the suggestion
is not enough. There ought to be
positive matters to substantiate
the assertion by the
Defendant/Execution Creditor
that the property was titled in
the name of Mrs. Pascal Karam
for convenience and intended to
overreach the
Defendant/Execution Creditor’s
interest as a judgment/creditor.
Mere speculation, as I have
earlier said will not defect the
documentary evidence of title.
In that respect the
Defendant/Execution Creditor
failed. The evidence of DW2 and
DW3 merely attempted to give a
corroborative effect to the
evidence of DW1 which is a mere
oral testimony intended to
override the documentary proof
of Mrs. Pascal Karam’s title. It
cannot be.
43. The 4th
witness for the Defendant
however introduced a new
dimension and a new challenge to
the Plaintiff/Claimant’s case.
On the 9th day of
June 2010, I granted leave for
the Defendant/Execution Creditor
to amend its pleadings in order
to plead certain matters that
had come into its knowledge and
possession since the trial of
this interpleader began. Upon
the said amendment,
Defendant/Execution Creditor led
evidence through DW 4 Nuku
Attipoe with respect to Exhibit
‘7’ said to be a proposal from
Mr. Joseph Karam through a
certain Micheal Bowman Amuah.
Exhibit ‘7’ is dated 20th
May 2010 and was procured during
the course of this trial. It is
a document called Leveraged
Amount and Corporate
Restructuring proposal by an
organisation called Ba Dev Tex
Holding. At page 4 of Exhibit
‘7’ reference has been made to
Greenfuel Bio Diesel Ltd.
Petrostar Ltd. Premium Petroleum
Ltd. Africa Pride Petro Plast,
and Alfredos M & T all being
corporate organisations said to
be associated with Joseph
Maurice Karam a principal actor
in all the circumstances giving
rise to this suit who as stated
therein authorised the processes
contained in Exhibit ‘7’.
44. The
Defendant/Execution Creditor had
sought to use Exhibit ‘7’ to
establish a nexus between Joseph
Karam and the companies referred
to therein which has been
addressed to Intercontinental
Bank Ghana the
Defendant/Execution Creditor in
these proceedings. What then is
the effect of Exhibit ‘7’ and
what weight should this court
attach to it in determining the
evidence adduced by the
Defendant/Execution Creditor to
tilt the imaginary evidential
scale in its favour.
45. My examination of
Exhibit ‘7’ reveals that a
company called Petrostar Limited
which sounds in name like
Petrostar International and
Trading Limited
Plaintiff/Claimant’s herein and
other companies have been linked
to Joseph Pascal Karam and
therefore constitutes evidence
to substantiate the allegation
of a syndicated grand design
through the incorporation of
corporate entities to overreach
the Defendant/Execution
Creditor. I am prepared to
accept the proposition that
Petrostar Limited is the same
company as in the
Plaintiff/Claimant herein but
nothing in that proposal Exhibit
‘7’ is sufficient to negate the
documentary evidence of absolute
title vested in Mrs. Pascal
Karam per Exhibit ‘J’ and while
I respect the effort by the
Defendant/Execution Creditor in
substantiating its allegation of
fronting and overreaching, the
contents of Exhibit ‘7’ is
certainly not susceptible to any
legal comprehension and effect
as the Defendant/Execution
Creditor has urged me to hold.
It is unreliable and no weight
ought be attached to it. Even
more so when the
Defendant/Execution Creditor did
not call the said Michael Bowman
Amuah to testify on the
circumstances under which Joseph
Karam was involved in the
production of Exhibit ‘7’.
46. During cross
examination of DW4 the following
evidence was elicited.
“Q. I am suggesting to you
that, that proposal has nothing
to do with Petrostar
International and Trading
Limited.
A. I donot agree. This
proposal as brought by BA
Consult stated all the inter
related companies for Mr. Karam
in which we have oil related
companies plastic related
companies and real estate
related companies……………………..”
47. There is no clarity
from Exhibit ‘7’ who in
particular authorised Michael
Bowman Amuah to present Exhibit
‘7’ but there is a claim in the
opening statement that the
authors represent successors in
interest of the Alfredos
Manufacturing and Trading
company Ltd. as well as the
affiliated companies and
business interests including the
Metalloplastica Company Ltd. in
liquidation.
48. Since DW4 has
associated the proposal to
Joseph Karam because the
companies mentioned are
interrelated companies for Mr.
Joseph Karam what in law does
the introduction to the proposal
mean by “successors in interest
of Alfredos Manufacturing and
Trading company Ltd. as well as
affiliated companies”?
49. There being no
evidence of liquidation of
Alfredos Manufacturing and
Trading company Limited and the
other related companies
mentioned, the preamble giving
birth to the proposal in Exhibit
‘7’ does not represent any
appreciable legal sense and
cannot form the basis of
evidence of any probative value.
Why have I come to this
conclusion?
50. In paragraph 24 of the
Defendant/Execution Creditors
Amendment Statement of Defence
filed on 13 – 7 – 2010 the
Defendant/Execution Creditor
pleaded as follows:
“The visit to the Defendant bank
was after Mr. Bowman – Amuah and
another official of BA
Consulting and Ba Dev Tex
Holdings had approached Messrs
Kulendi @ Law, Solicitors of the
Defendant bank, again on the
instructions of Mr. Joseph Karam
to discuss the restructing of
his holdings in Ghana and
payment of the judgment debt”
If the said instructions came
from Mr. Joseph Karam as
alleged, is it to be believed or
not? On 18th May
2010, during cross examination
of DW1 Mrs. Kafui Aryee this is
what was received in evidence
about Mr. Joseph Maurice Karam
the principal actor in this
saga.
“Q. Now as per your own
due diligence report you
described Mr. Karam as a man of
integrity?
A. Yes my
lord.
Q. Do you
still stand by that description?
A. No my
lord.
Q. Why is
that?
A. Because he did not
honour his payment to the bank
as and when due.
Q. So he is
not a man whose statement can be
relied on?
A. Yes my
lord”.
(I think the answer
is intended to be ‘No’).
51. Since Exhibit ‘7’ was
made on 20/5/2010 barely two
days after DW1 had described
Joseph Karam as a man who lacks
integrity there is no evidence
before me that Joseph Karam had
within the two days benefited
from any spiritual or physical
deliverance for his instructions
and directions to be worthy of
belief. Except if Mrs. Kafui
Aryee’s evidence on Joseph Karam
should not be believed, her
testimony clearly means that
Joseph Karam is not a truthful
person and lacks integrity and
so will this court treat any
instructions said to be
emanating from him unless
otherwise proved to be so by
strong compelling evidence.
52. That sums up the
Defendant/Execution Creditors
testimony in these proceedings
but I will not have exhausted
all the issues arising without
examining the issue of fraud
raised not in the
Defendant/Execution Creditor’s
pleadings (facts) nor was any
semblance of it particularised.
53. I have earlier
referred and relied on BROWN
VRS. QUASHIGAH supra, in
particular, the position of the
Supreme Court that fraud is one
of the grounds on which a land
certificate issued in pursuance
of PNDCL 152 can be set aside
and cancelled.
54. Learned counsel for
the Defendant/Execution Creditor
has referred to section 17 of
the Conveyancing Act 1973 (NRCD
175) and relies on the case of
APEAH & ANOR VRS. ASAMOAH [2003
– 2004] holding 4 where it was
held that.
“Fraud would vitiate everything.
And ordinarily fraud should be
pleaded. It had not been pleaded
in the instant case.
Notwithstanding the rules of
pleadings the law was that where
there was clear evidence of
fraud on the face of the record,
the court could not ignore it”
55. I agree with that
principle of law recommended by
the Defendant/Execution
Creditor’s counsel and I have
been guided by it. In the said
case the Supreme Court agreed
with the finding that a lease
which formed the basis of a
judgment before the District
Court was procured by fraud and
same being null and void, no
effect in law could be given to
it notwithstanding the absence
of a specific pleading of fraud
before that finding was made
from the record. There is
however no doubt in my mind that
there has not been any evidence
of fraudulent conduct on the
part of the Plaintiff/Claimant
or their predecessor in title
apparent on the face of the
record in this suit. All the
Defendant/Execution Creditor did
is to make unsubstantiated
inferences of possibility that
Mrs. Pascal Karam’s title was
held by her conveniently on
behalf of Mr. Joseph Karam.
There is no evidence to
substantiate the suspicions even
if I am to apply the decision
just referred to in favour of
the Defendant/Execution
Creditor.
56. Earlier in the written
address counsel for the
Defendant/Execution Creditor
stated as follows.
“My Lord it is clear from the
inconsistent and doubtful
evidence of the only witness of
2nd Claimant that the
aim of this purported
transaction between it (2nd
Claimant) and its purported
grantor is an orchestration of
Mr. Karam to defraud the
Defendant herein. His (2nd
Claimant’s witness) credibility
is seriously undermined and as
such the weight to be attached
to his evidence should be very
insignificant”.
57. As I have earlier
found in this judgment the
witness of the
Plaintiff/Claimant in my view is
a credible witness and his
testimony was neither
contradicted, nor discredited in
anyway and I am unable as I have
earlier clearly expressed to
hold that Plaintiff/Claimant’s
testimony is unreliable. In my
view it is totally unassailable
from the evidence on record.
58. I have held that I
have been guided by APEA & ANOR.
VRS. ASAMOAH supra cited by
counsel for Defendant/Execution
Creditor but the principle is
distinguishable from and
inapplicable to the facts of
this case.
59. It is my view that the
Supreme Court in that case did
not set out to develop any new
principle of general application
with respect to fraud such as to
have the effect of diluting the
requirement in order 11 rule 8
(1) that fraud like all other
legal incidents constituting the
basis of a claim or defence
ought to be particularly
pleaded. The Defendant/Execution
Creditor did not plead fraud nor
particularised any ingredients
of fraud. I have examined the
entire 24 paragraph Amended
Statement of Defence filed on 13
– 7 – 2010 filed by the
Defendant/Execution Creditor and
nowhere has fraud been
specifically pleaded and
particularised. The predicament
of counsel for the
Defendant/Execution Creditor is
obvious hence the reliance on
the principle of APEA & ANOR.
VRS. ASAMOAH which ought to be
applied in exceptional
situations where fraud is on the
face of the court’s record
obvious and therefore want of a
plea of fraud may not
necessarily operate against the
party who has adduced sufficient
evidence to establish same. In
my view therefore APEA & ANOR.
VRS. ASAMOAH is an exceptional
rule rather than a principle
supporting the norm and must be
applied in particular situations
where it is relevant and
applicable. Certainly the
evidence on record in the
instant suit is not one in which
the plea of fraud and
particulars thereof could have
been dispensed with.
60. I must state for
purposes of emphasis that I am
not unaware of trite legal
learning that fraud vitiates
everything and when a court of
law in the course of its
proceedings has cause to believe
that fraud has been committed,
it is duty bound to quash
whatever has been done on the
strength of that fraud. Osei
Hwere J. A. (as he then was) in
IN RE WEST COAST DYEING INDUSTRY
LTD. ADAMS VRS. TANDOH [1984 –
86] 2GLR 561 at 605 stated the
position succinctly when he
stated as follows:
“Fraud like cancer, calls for
swift remedy. It must be
uprooted. Therefore, when fraud
is brought to the court’s notice
and there is credible evidence
to support it the court is
obliged to deal with it swiftly
and decidedly”.
61. It is not the case in
the instant proceedings that the
Defendant/Execution Creditor
pleaded fraud, let alone
particularise any allegation of
fraud. There is to my mind from
the totality of evidence no such
credible evidence suggesting or
supporting fraud.
62. The consensus of
judicial opinion is that where
no fraud is specifically pleaded
and particularised no finding
can be made therefrom except
where it is apparent on the face
of the court’s record and as I
have said earlier that situation
is the exception and not the
norm.
63. In the case of DARBAH
& ANOR. VRS. AMPAH [1989 – 90]
CA 1 GLR cited with approval in
OKOFOH ESTATES LTD. VRS. MODERN
DESIGNS GH. LTD. [1996 – 97]
SCGLR the Court of Appeal held
that even in cases “where
fraud and duress are pleaded
particulars must be given.
Consequently where no
particulars were given, it must
be taken that either no fraud or
duress existed or the averment
amounted to a mere denial”
64. I donot think from the
evidence, Defendant/Execution
Creditor set out to make a case
of fraud. Even if it were so,
the evidence before me does not
support such allegation only
raised belatedly in the closing
address of the
Defendant/Execution Creditor. I
hold therefore that
Plaintiff/Claimant’s grantor was
not a front for Joseph Maurice
Karam in the transaction between
Mrs. Pascal Karam and the
Plaintiff/Claimant. In
consequence I hereby determine
issue (n) in
Plaintiff/Claimant’s favour.
65. One other issue set
out for determination is whether
or not the Plaintiff/Claimant
did diligent searches on the
property before the purported
assignment was executed. With
the determination of the issues
hereinbefore in favour of the
Plaintiff/Claimant, I should
think the determination of this
issue follows as a matter of
logical consequence. Suffice it
to say however that the
principle of caveat emptor
applies to any purchaser who
recklessly negotiates and
purchases property without
conducting sufficient searches
to determine the true status of
the property.
66. The nature and degree
of any search depends on the
status of the prospective
vendor’s title. The evidence
before me is that
Plaintiff/Claimant conducted a
search at the Land Title
Registry and were presented with
a report of search Exhibit ‘G’.
67. In the case of BOATENG
VRS. DWINFOUR [1979] 360 CA,
Anin J. A. delivering the
decision of the court stated the
duty on a prudent purchaser at
page 367 in the following words:
“Again if the prudent purchaser
deliberately or carelessly
abstained from making those
inquiries into the title of his
vendor that a prudent purchaser
would have made, he will be
affected with constructive
notice of what appears upon the
title.
Apart from investigating the
deeds, a prudent purchaser will
inspect the land itself. If any
of the land is occupied by any
person other than the vendor,
this occupation is constructive
notice of the estate or interest
of the occupier, the terms of
his lease, tenancy or other
right or occupation and of any
other rights of his except a
mere equity”.
68. There being no
encumbrance on the subject
matter documented on the records
at Land Title Registry nor
evidence of adverse occupation,
I think Plaintiff/Claimant’s
search served a useful purpose
and issue (g) is hereby resolved
in Plaintiff/Claimant’s favour.
69. In my view the other
issues are merely consequential
in relation to the issues
already determined in favour of
the Plaintiff/Claimant.
70. It is for all the
reasons I have earlier set out
in this judgment, that I find
the attachment of Parcel No. 7
Block 1 section 090 East Airport
Accra property of the
Plaintiff/Claimant as improper
and unlawful same not being
property owned by any of the
Defendants/Judgment Debtors in
the substantive Suit BFS458/2008
nor do the said
Defendants/Judgment Debtors have
any interest, legal or equitable
in the said property.
71. The let effect is to
direct the Deputy Sheriff of
this court and the
Defendant/Execution Creditor to
release the said property from
attachment forthwith and same is
hereby ordered.
72. I shall now hear
counsel on costs.
By Court:
There shall be costs of GH¢4,000.00
in favour of the
Plaintiff/Claimant.
(SGD.)
JUSTICE I. O. TANKO AMADU
JUSTICE OF THE HIGH COURT
Victoria Barth (Mrs.)
(For Plaintiff/Claimant)
Yonny Kulendi Esq.
With Ms. Sarah Iddrisu
(For Defendant/Execution
Creditor)
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