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JUDGMENT:
By reason of a judgment obtained
by the Plaintiff/Execution
Creditor, National Investment
Bank against Danteng Company
Limited and three others, the
former went into execution
attaching under a warrant of
execution, the property
described as H/No 4 Elikan St;
Menpehuasem, East Legon, Accra.
Plaintiff did so because the
property had been mortgaged to
Plaintiff.
The Claimant herein, Ulrike
Koranteng, through her lawful
attorney filed a Notice of Claim
which was disputed by the
Plaintiff/Execution Creditor.
The Claimant was ordered to
prove her claim as the
plaintiff, and the
Plaintiff/Execution Creditor as
the defendant. Claimant’s lawful
attorney gave evidence and
Claimant (Plaintiff) called two
other persons who were served
with subpoena to give evidence.
The Plaintiff/Execution Creditor
(Defendant) did not call any
witness.
Mrs. Rosamond Mate-Korle Noye,
the lawful attorney of the
Claimant (Plaintiff) testified
that the Claimant was once
married to the 2nd
Defendant in the substantive
case, Daniel Koranteng, and the
two were blessed with two
children. Her further testimony
was that the property situate at
Menpehuasem, East Legon, is
jointly owned by the Claimant
(Plaintiff), her two children
and the 2nd
Defendant. She tendered in
evidence, Exhibit “B”, the title
deed in respect of the said
property in support of her
claim. She also stated that the
Claimant and her children did
not know of and did not consent
to the use of the house in
question as collateral security
for a loan facility that the
Plaintiff Bank advanced to
Danteng Company Limited.
Mr. Daniel Koranteng, the 2nd
Defendant in the substantive
matter, who was subpoenaed to
appear in Court testified that
he and the Claimant used to be
married but got divorced in
2000, and he had since
remarried. He also confirmed
that he and the Claimant had two
daughters between them; Grace
Koranteng and Nele Schnipper.
Mr. Koranteng’s evidence was
that he together with the
Claimant and their two children
jointly own the property in
question. He identified Exhibit
“B” as the title deed in respect
of the said property.
His further evidence was that he
applied for a loan facility from
Plaintiff Bank to purchase a
factory and used the property
situate at Menpehuasem as
collateral security. The
Plaintiff Bank after satisfying
itself as regards the title deed
prepared the relevant documents
which he executed in the
presence of officials of the
Plaintiff Bank. He stated
further that he did not seek the
consent of the other joint
owners of the property in
question, and Plaintiff Bank did
not request for such consent.
That, he personally signed the
mortgage deed but the officials
of the Legal Department at
Plaintiff Bank asked a former
director of the 1st
Defendant in the substantive
suit by name Cephas Allotey to
sign on behalf of the Claimant.
Exhibit “B”, as already stated
has the names of Ulrike
Koranteng, Grace Koranteng and
Nele Schnipper written in the
signature column. According to
Mr. Koranteng the said document
was sent to the other joint
owners in Germany for execution.
Even though Counsel for
Plaintiff/Execution Creditor
sought to challenge this piece
of evidence, the witness denied
that he wrote the names of the
said joint owners in Exhibit
“B”. Plaintiff however did not
lead any evidence to prove that
it was Mr Koranteng who “signed”
Exhibit “B” for the other joint
owners. I will therefore find
that the Claimant, together with
her children, are co-owners of
the property in question with
the 2nd Defendant.
Exhibit “1” did not have the
“signatures” of Grace Koranteng
and Nele Schnipper. And
according to Mr Koranteng, the
name of the Claimant, Ulrike
Koranteng, was written in the
signature column by Cephas
Allotety. This piece of evidence
again, was not successfully
challenged by the Plaintiff.
Neither did the Plaintiff lead
evidence to rebut the evidence
led by Mr Koranteng that it was
the Legal Officer of Plaintiff
Bank who suggested that Cephas
Allotey sign Exhibit “1” for the
Claimant by leading evidence.
But more importantly, in my
opinion, Mr Koranteng’s evidence
that the Plaintiff Bank never
requested for the consent of the
other joint owners of the
property used as security was
not contoverted.
The principle is that when a
party gives evidence of a
material fact and that evidence
is not challenged by his
opponent in cross-examination,
and the opponent did not lead
any evidence to the contrary,
the facts deposed to in evidence
are deemed to have been admitted
by the party against whom it is
led, and must be accepted by the
Court (Takoradi Flour Mills v
Samir Faris [2005-2006] SCGLR
882) This principle is
further enunciated by Brobbey J
(as he then was) in the case of
Hammond v Amuah [1991] 1 GLR
89, at 91 as follows:
“The law is quite settled that
where a party makes an averment
and that averment is not denied
no issue is joined and no
evidence need be led on that
averment. Similarly, when a
party has given evidence of a
material fact and is not
cross-examined upon it, he need
not call further evidence on
that fact. See Fori v Ayirebi
[1966 GLR 627 SC, at 647.
Indeed it was held in the case
of Quargraine v Adams [1981]
GLR 599, CA that where a
party made an averment and his
opponent fails to cross-examine
on it, the apponent will be
deemed to have acknowledged sub
silentio, that averment by
failure to cross-examine.”
It was Mr Koranteng’s evidence
that when he submitted Exhibit
“B” to Plaintiff Bank he was
informed that the Bank would
conduct a search, to determine
the authenticity of the document
among other things, before
approving the facility. It was
after the search was conducted
that Exhibit “1” was prepared
for execution. Thus Plaintiff
had known all along who the
owners of the property in
question were, and that explains
why Exhibit “1” contained the
names of all four owners as
mortgagors. It is trite leaning
that the law aids the vigilant
and not those who sleep, i.e.
the indolent (vigilantibus et
non dormientibus jura
subveniunt)
The Claimant and her children
were not served with any notice
of default as required by the
Mortgages Act, 1972 [NRCD 96].
Also, they were not made
parties to the substantive suit.
I will find that the Claimant
and her children never consented
to nor executed Exhibit “B”.
The position of the law is that
when two or more persons become
entitled to simultaneous
enjoyment of land, co-ownership
of land arises. Each owner is as
entitled to possession of every
part of the land as the other(s),
and no co-owner can appropriate
any part of the land exclusively
to himself. Co-ownership may be
brought to an end either by
partition or by union in a sole
tenant. Co-ownership may be
partitioned either by the
voluntary act of all the owners
or compulsorily by an order of
the court. However, the actual
process of physical partition
could lead to absurd results.
The English Partition Act of
1868 conferred on the court the
power to order a sale of the
property instead of partition.
Such an order is preferable to
an order of partition especially
where the property involved does
not lend itself to a fair and
practical partition physically.
Where the court orders a sale,
the owners share the proceeds of
the sale in the requisite
proportions. The English
Partition Acts of 1539, 1540 and
1868 have been incorporated into
law of Ghana by section 119(1)
of the Courts Act, 1993, Act
459.
As stated above, it is not
practicable for the property in
question to be physically
partitioned and shared amongst
the owners. The more practicable
thing to do would be for the
property to be sold and the
proceeds shared in the requisite
proportions among all the
owners. On the other hand, one
may offer to buy the other
owners out. And indeed the
Claimant herein has offered, to
buy the 2nd Defendant
out.
In the circumstances, the claim
is allowed, and the Claimant is
declared part owner of the
property known as Hse No 4
Elikan Street, Menpehuasem, East
Legon, Accra. I will set aside
the attachment of same, and
direct that the Claimant pay to
the Plaintiff Bank the value of
the portion of the said property
that belongs to the 2nd
Defendant.
2nd Defendant would
then be deemed to have
relinquished all his interest in
the said property.
There shall be no award as to
costs. Each party shall bear its
own cost.
(SGD)
BARBARA
ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
BRIGHT OTCHERE AGYEKUM
- PLAINTIFF
FRED DOTSE
- CLAIMANT |
