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JUDGMENT:
Ajina Company Limited, 1st
Defendant in the substantive
suit, was granted overdraft
facilities totalling to GH¢100,000.00.
As security for the facilities,
2nd and 3rd
Defendants executed Personal
Guarantees to be jointly and
severally liable in the event of
a default on the part of the 1st
Defendant. As further security,
4th Defendant
executed a mortgage over her
property known as Plot No. 261,
Mpehuasem, East Legon, Accra to
Plaintiff.
The Plaintiff also accepted the
property of Ambrose Cobblah
Delali Agbana known as H/No.
B338/14 Mataheko as additional
security. The Defendants claimed
that consequent to this, the 3rd
Party had also been granted an
amount of GH¢20,000.00. By leave
of the court, the said Ambrose
Agbana was joined as 3rd
Party to the suit. The 1st
Defendant defaulted in repayment
of the overdraft facilities and
was indebted to the Plaintiff in
the sum of GH¢236,593.13 as at
31st March 2008.
The Defendants/Judgment Debtors
submitted to judgment in the sum
of GH¢236,593.16 together with
interest from 1st
April 2008 until date of final
payment. The Parties having
executed Terms of Agreement,
same was adopted as Consent
Judgment by the Court.
Defendants however defaulted on
the terms of the Consent
Judgment. The Defendants
indebtedness stood at
GH¢305,596.332 as at 28th
February 2009. Consequently a
writ of fi fa was issued from
the Registry of this Court to
attach the immovable property
(H/No. B338/14 Mataheko, Accra)
of the 3rd Party,
Ambrose Agbana, which property
had been used as additional
security.
NIB went into execution
attaching under a warrant of
execution the said House No.
B.338/14 Mataheko, Accra; the
property in dispute. The
Judgment Creditor did so because
it believed that Ambrose Cobblah
Delali Agbana, the said 3rd
Party was the owner of the said
property.
The Claimants herein filed a
notice of claim in their
capacity as Executors/Trustees
of the Estate of Gilbert Kwaku
Agbana. The Claimants are
claiming that the said property
was bequeathed by the said
Gilbert Agbana in his Will dated
5th April 1997 to all
his thirteen (13) children. The
said claim was disputed by the
Judgment Creditor, now Execution
Creditor. On the application of
the Registrar, pursuant to order
44, Rule 12(4) of the High Court
(Civil Procedure) Rules, 2004
(C.I. 47), the Court directed
the attendance in court of the
Claimants herein and the
Plaintiff/Execution Creditor for
the purpose of determining the
dispute between them. The
Claimant was designated
plaintiff by the Court so that
it might prove its claim (it
however retains the designation
Claimant in this entire
judgment); the
Plaintiff/Execution Creditor was
made the defendant.
The Court took evidence from
Ernest Kwartei Quartey, one of
the Claimants, in a summary
determination of the
interpleader. His evidence was
that he was a co-executor in
Gilbert Agbana’s Will; the other
executor was Glenn Agbana. He
tendered in evidence the Probate
with the Will attached (Exhibit
“A”). In the said Will, the
disputed property was bequeathed
to the testator’s thirteen (13)
children. Mr. Quartey also
tendered in evidence the Deed of
Conveyance between NII AYIKAI 11
Akumajay Mantse of Accra and
GILBERT KWAKU AGBANA (Exhibit
“B”), conveying the property in
dispute.
The Plaintiff/Execution
Creditor’s witness, Michael
Amafu Dey, testified that from
the Bank’s record the 1st
Defendant was granted a credit
facility for which the property
in question was used as
security. Mr. Amafu Dey
tendered in evidence a copy of
the letter of consent from
Ambrose Agbana (Exhibit “1”); a
Deed of Gift between Gilbert
Kwaku Agbana and Ambrose Delali
Cobblah Agbana (Exhibit “1A –
“1E””) dated 13th
September, 1996; and a search
report on the property conducted
by Mr. Ambrose Agbana. Mr.
Amafu Dey said the Bank did not
know about any Will; no such
Will had been brought to their
attention. He said that the
indenture submitted to the Bank
by Ambrose Agbana had been duly
registered.
The gravamen of the Claimants’
case is that the property
belonged to Gilbert Agbana
(deceased) who bequeathed same
to his 13 children in his Will.
The Plaintiff on the other hand
is claiming that Gilbert Agbana
in his lifetime gifted the
property to his son Ambrose
Agbana. One of the children of
the said Gilbert Agbana,
Amstrong Agbana signed as
attesting witness for the said
Gilbert Agbana.
There is therefore the issue of
the Gift and the Will. In my
opinion, the issue to be
determined is that, between the
Deed of Gift and the Will, which
should be the document that
should prevail.
In the course of the
proceedings, Mr. Quartey told
the Court, under
cross-examination, that the
other Claimant and co-executor
had died. Granted that a
deceased party should be struck
out and/or substituted It is my
opinion that the subsisting
party, Mr. Quartey still had
capacity as an executor in
Ambrose Agbana’s Will.
The property in question, as
stated above, was transferred by
Gilbert Agbana to Ambrose Agbana
by way of a Deed of Gift. It is
common knowledge that a gift is
a grant in which the grantor
expects no payment to be made
and therefore asks for none. It
is a voluntary transfer of title
to another for no
consideration. As in a sale,
the donor must be the owner of
the property gifted, and he must
have the competence to transfer
it and fully intend to do so.
If these conditions are
satisfied but the intended donee
refused to accept the preferred
gift, then there is no gift.
For a donee willing to accept
the gift is needed to perfect
the gift and an acceptance of
same sort is necessary to
complete the gift. See
Anaman v Eyeduwa (1978) 1 GLR,
114 at 115-116.
I have stated above that the
copy of Deed of Conveyance was
tendered in evidence as Exhibit
“B”; it is dated 2nd
December, 1960. This is
evidence of the donor’s root of
title and indicates therefore
that Gilbert Agbana was indeed
the owner of the property he
gifted to Ambrose Agbana. It is
also stated in the Deed of Gift
(Exhibit “1A”) as follows:
“THAT THIS DEED OF GIFT
covered customary drinks and
thanks offered by the DONEE
AS NATIVE CUSTOMARY RITES
demands.”
An acceptance plays an important
role in that it fulfils the
necessary function of perfecting
the gift. It also affords an
opportunity for express denial
of any intention to make a gift
when no gift was intended by the
donor. Acceptance of gift by
the donee is signified by the
expression of thanks and the
presentation of some articles by
the donee to the donor. The
articles are presented in the
presence of witnesses to
validate the gift; See
Boakye v. Broni (1958) 3 WALR
475; Mamavi v. W.A. Building Ltd
(1965) GLR 216.
Acceptance is also signified by
the exercise of the rights of
ownership over the land.
I have observed that the Deed of
Gift (Exhibit “1A”) was duly
registered at the Land’s
Commission as was at that time
required. After the Deed had
been duly stamped, the Land
Registry Act, 1962 (Act 122)
required that it be registered.
Registration of Deed of Gift is
very important because the
position of the law is that;
first, unless and until an
instrument affecting land has
been registered it cannot pass
any title and interest.
Secondly, it constitutes actual
notice of the transfer and the
fact of its registration and
serves notice on the whole world
from the effective date of its
registration. Registration,
however, does not confer title
on the donee if the donor has no
title to covey to him.
In the instant case, from the
evidence before the court, the
donor had title to the property
in question, and therefore had a
right to make the grant to
Ambrose Agbana. Ambrose Delali
therefore had the capacity to
give the property to NIB as
security for the facility. Per
exhibit “1”, letter of consent
dated 17th July 2006,
Mr. Ambrose Agbana consented to
the use of the property in
question to secure the overdraft
facility granted to the 1st
Defendant/Execution Debtor by
the Plaintiff/Execution
Creditor. It is my view that NIB
did all that could reasonably be
expected of it in the
circumstance. It cannot be
required to do more by way of
due diligence than conduct a
search to verify that the donor,
Mr. Gilbert Kwaku Agbana, was
the rightful owner of the
property in question; which was
done. I therefore do not accept
the contention of the Counsel
for the Claimants that the
Plaintiff/Executive Creditor did
not conduct due diligence before
accepting the use of the
property as security.
From the evidence placed before
the court, at the time Gilbert
Agbana made his Will, there was
a valid Gift to Ambrose Agbana
subsisting. Gilbert Agbana had
alienated his interest in the
property in question and could
therefore not have bequeathed
same to his other children. In
which case NIB had the right to
attach the property in dispute
which had been given to it as
security for the facility
granted to 1st
Defendant.
In the premises, I will dismiss
the claim, and the property in
question shall remain attached.
Costs of GH¢1,000.00 awarded
against the Claimants.
(SGD)
BARBARA ACKAH-YENSU (J)
JUSTICE OF THE HIGH COURT
COUNSEL
KWAKU PAINTISEL
- CLAIMANT
BRIGHT OKYERE ADJEKUM
- PLAINTIFF |
