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By reason of a judgment obtained
by the Plaintiff/Execution
Creditor, La Community Bank,
(designated the defendant in
this inquiry) against Mrs.
Cynthia Merley Tackie, the
former went into execution
attaching some properties of the
Defendant/Execution Debtor
including a GMC car with
registration number GE 4632 Z;
the property in dispute. The
Execution Creditor did so
because they believed that the
car formed part Mrs Tackie’s
properties.
Pursuant to a Registrar’s
Summons filed on 11th
August 2009, the Court ordered
that the Claimant and Execution
Creditor appear before the Court
for the determination of the
interest of the claimant.
The Claimant herself did not
appear in court, neither was she
represented by any person.
Claimant’s lawyer however
subpoenaed an officer of the
Driver and Vehicle Licensing
Authority (DVLA), Mr. Abraham
Tetteh, to testify. Mr. Tetteh
tendered in evidence (exhibit
“A”), which is a completed copy
of the DVLA Registration form.
From exhibit “A” the car in
question is registered in the
name of Flora Quaye. Under
cross-examination, Mr. Tetteh
stated that there were
situations where vehicles are
sold to third parties and DVLA
is not made aware of it;
therefore it could be possible
that Flora Quaye had sold the
vehicle in question to Mrs
Tackie but there had been no
change of ownership.
The Claimant’s 2nd
witness was the Defendant/
Execution Debtor. Her evidence
was that the Claimant used to be
her landlady and was resident
outside the country. Her further
evidence was that the Claimant
left the car in Defendant’s care
and asked her to occasionally
warm the vehicle. She said she
was just warming the vehicle
when it was attached by the
court officials. Under
cross-examination, she stated
that the Claimant was not aware
of the instant action and that
Defendant’s lawyer brought the
matter to court.
The evidence adduced on behalf
of the Plaintiff/Execution
Creditor by Emmanuel Obeng was
that the vehicle had been in the
possession of the Defendant for
some time, and she visited the
Plaintiff-Bank a number of times
in the said vehicle.
In the case of Lemanu v Duala
[1962] 1GLR 60, it was held
that the burden of proving her
title is on the claimant; this
trite learning. It was also held
in the case of Salana v
Sharani [1973] 2GLR 364,
that possession is 9/10th
of the law, therefore if the
Claimant was in possession of
the attached property then the
burden was lighter on the
Claimant. Undoubtedly therefore,
the onus of proving ownership of
the vehicle in question was on
the Claimant herein.
In my opinion, it cannot be said
that Flora Quaye is definitely
the claimant in this matter.
Apart from exhibit “A” from
DVLA, the said Claimant herself
did not herself did not adduce
evidence on the ownership of the
vehicle in question. It is trite
learning that one making a claim
should be known. After all, it
is possible to own a vehicle but
the registration would be in the
name of someone else. There is
also the possibility of
collusion with the judgment
debtor to deprive the judgment
creditor of the fruit of her
judgment. Therefore the Claimant
is required to satisfy the Court
of her claim. There is nothing
to show that the supposed
Claimant herein herself was a
party to this action; it is
simply her name that appears on
the process filed. The Claimant
ought to have testified either
herself, or through an attorney
properly appointed.
It is not sufficient for the
Defendant/ Execution Debtor’s
own lawyer to file an
Interpleader for the supposed
Claimant, who is not known in
anyway but by name only; and for
the Defendant/Execution Debtor
herself to come and testify. I
will therefore find that the
supposed Claimant has not made
out her case on the balance of
probabilities, and must
therefore fail.
Counsel for Plaintiff has
submitted in her written address
that the conduct of Counsel for
Defendant is prohibited by the
Legal Profession (Professional
Conduct and Etiquette) Rules,
1969 (L.I.613). I will agree
with the submissions made by
Counsel for the
Executioner/Creditor that
Counsel for Defendant’s conduct
was unethical and clearly
unprofessional. I was minded to
report Counsel to the
Disciplinary Committee of the
General Legal Council, but I am
not sure Council understood the
import of his action, and have
therefore decided to hold my
hand.
Before I end however, I will
also sound a note of caution to
Plaintiff/Execution Creditor on
the basis of Kumah v Himah
[1977] 1GLR 204, to satisfy
itself by doing due diligence
that the vehicle indeed belongs
to the Executive Debtor, to
avoid being mulcted in costs for
attaching property belonging to
someone else. In the said case,
it was held that a certificate
of purchase issued after a court
sale under a writ of fi.fa. did
not itself confer an
indefeasible title.
To recapitulate, I hold that the
claim of the Claimant that she
is the rightful owner of the
vehicle with registration number
GE 4632 Z has not been proved,
and is accordingly dismissed.
Costs of GH¢2,000.00 awarded in
favour of the
Execution/Creditor.
(SGD)
BARBARA ACKAH-YENSU(J)
JUSTICE OF THE HIGH COURT
COUNSELS
TEIKI AKWETTEH
- PLAINTIFF
KORSAH
BROWN
- CLAIMANT
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