|
=======================================================
JUDGMENT:
Plaintiff/Judgment Creditor,
Stanbic Bank Limited (designated
the defendant in this
inquiry) obtained a judgment
against Davek Dynamic
Investments and Erasmus Karl
Atuchem. The former went into
execution and attached under a
warrant of execution, the
property situate at Adjiriganor,
East Legon, Accra. Stanbic Bank
also attached in execution of
the judgment, some unmovable
properties. They did so because
Plaintiff/judgment Creditor
believed the properties belong
to the Defendant, Erasmus Karl
Atuchem.
The Claimants herein (designated
as Plaintiffs in this inquiry)
issued interpleader summons
claiming ownership of the
properties in question. The 2nd
Claimant, Edlorm (Gh) Limited’s
claim is that the property
situate at Adjiriganor, East
Legon, Accra is not the property
of the Defendants. The evidence
of Eddie Kotey, the 2nd
Claimant’s representative, was
that the whole track of land,
part of which the property in
question was constructed, was
acquired by the 2nd
Claimant from the Lands
commission and developed by the
2nd Claimant. He
tendered in evidence, the Lease
covering the land (Exhibit
“A”). He also tendered in
evidence a Search conducted at
the Lands Commission which
indicated that the whole site
was registered in the name of
the 2nd Claimant
(Exhibit “D”).
Mr. Kotey’s further evidence was
that 2nd Claimant
attempted to sell the property
in question to the 2nd
Defendant and gave him terms of
payment. Mr. Atuchem made the
first payment but defaulted in
the subsequent payments. After
Mr. Atuchem failed to make the
payments after reminders have
been sent to him to no avail,
the 2nd Claimant
informed Mr. Atuchem that they
were going to convert his
deposit into rent and when the
rent ran out he would be ejected
from the house and 2nd
Claimant would repose the
property (see Exhibits “B”) and
“C”). Per Exhibit “C”, Mr.
Atuchem’s tenancy was to expire
in March 2011.
Under cross-examination, Mr.
Kotey testified that the Deed of
Assignment between the 2nd
Claimant and Mr. Atuchem
(Exhibit “1”) was prepared in
anticipation of the conclusion
of the contract when 2nd
Claimant finished paying for the
house. 2nd Claimant
in addition, wrote a letter
seeking the Consent of the Lands
Commission to assign the
property in question to Mr.
Atuchem. The evidence of Mr.
Kotey on this was that the
letter was not meant to be sent
to the Lands Commission only
after Mr. Atuchem had made full
payment.
The Plaintiff/Judgment Creditor
contested the claim on the
grounds that Edlorm Ghana
Limited, the 1st
Claimant assigned the interest
in the immovable property in
question to Mr. Atuchem. The
Judgment Creditor also contended
that it is evident that the
claims of the 1st and
2nd Claimants were a
mere collusion between the
Claimants and the Defendants
meant to deprive Plaintiff of
the fruits of the judgment
obtained.
The evidence of the Plaintiff’s
representative, Patrick Kodua,
was that the property in
question was used as security
for a facility of GH¢400,000
granted by the Judgment Creditor
to the Judgment Debtors.
Furthermore, it was the Judgment
Debtors who furnished the
Judgment Creditor with the Deed
of Assignment ( Exhibit “1”) and
the application for consent to
the Lands Commission to assign
the property to Mr. Atuchem.
Mr. Kodua also tendered in
evidence a letter of
acknowledgment from the Lands
Commission (Exhibit “5”). His
further evidence was that at no
point in time was Plaintiff made
aware of any agreement between
Mr. Atuchem and 2nd
Claimant that the assignment had
been converted to as tenancy
agreement.
Under cross-examination, Mr.
Kotey disagreed with the
suggestion by Counsel for the
Claimants that the reason why
there was no purchase price
stated in the Deed of Assignment
was because the said deed was
not meant to be sent for
registration at the time.
The position of the law is that
a deed, if it is at all valid,
should not have blanks.
However, if there are blanks, as
is the case in the Deed of
Assignment in the instant suit
(Exhibit “1”), it only makes the
deed ineffective. However, in
my opinion , the issue is not
germane to the instant matter.
The issue to be determined is as
between the Judgment Creditor
and the 2nd Claimant
who has a better title to the
property in question.
I will start by looking at the
interest of Mr. Atuchem
(Judgment Debtor) which he
sought to transfer to the
Judgment Creditor. As stated
above, the evidence placed
before the Court, which evidence
I accept , was that Mr. Atuchem
failed to pay the full purchase
price for the property in
question and therefore the
assignment was not completed, in
spite of the fact that a Deed of
Assignment had been signed and
all. The attempted purchase of
the property was consequently
converted into a tenancy.
Plaintiff/Judgment Creditor did
not lead any evidence to debunk
this. Mr. Atuchem is therefore
technically a tenant, and
therefore has no legal interest
in the property in question.
However, at the time that the
Judgment Debtors obtained the
facility from the Judgment
Creditor, Mr. Atuchem had made
part payment of the purchase
price, and so could be said to
have an equitable interest in
the property in question.
So, what was the nature of the
interest that the Judgment
Creditor (the Bank) obtained in
the property? The evidence
before the Court is that the
Bank collected a Deed of
Assignment from the Judgment
Debtors. There is also no
evidence that there was any
written mortgage over the
property in question. Section 1
(3) of the Mortgages Decree,
1972 (NRCD 96) makes it clear
that “a mortgage may be created
in any interest in immovable
property which is alienable”.
The “any interest” could include
legal, equitable or customary
law interests. I have already
stated above that Mr. Atuchem
had an equitable interest in the
property in question at the
time. And under the Decree, an
equitable mortgage can be
created over equitable interests
in land and these need not be in
writing. The Judgment Creditor
herein therefore also had an
equitable interest in the
property in question.
It is trite learning that where
the equities are equal, the
first in time shall prevail.
Hence the equitable maxim qui
prior est tempore, potior est
jure; i.e. he who is earlier
in time is stronger in law. In
the case of Gyimah & Brown v.
Ntiri (Williams –Claimant)
[2005-2006] SCGLR 247, Dr.
Date –Bah JSC stated that the
above quoted maxim means that,
where nobody has acquired a
legal interest in the property
in question an equitable
interest created in the property
earlier or “first in time” will
prevail against a later
equitable interest created in
the same property, unless the
holder of the later equitable
interest has the better equity.
In the instant case, the 2nd
Claimant has a legal interest in
the property in question. The
evidence adduced on behalf of
the 2nd Claimant was
that the whole site on which the
property in question is situated
is still registered in the name
if the 2nd Claimant
on the records of the Lands
Commission, and no evidence
there has been no transfer made
to the Judgment Creditor. The
land is the subject matter of a
lease dated 11/5/2007 from the
Government to the 2nd
Claimant. It is trite learning
that a good title to land is
documentary, and registration of
title documentation serves
notice to the whole world. I
will therefore find that the 2nd
Claimant still has the legal
interest/title, which is a
superior interest. The Judgment
Creditor can therefore not
attach the property in question
and sell it.
The 1st Claimant,
Mrs. Mackelia Antwi-Dua is also
claiming that some of the
movable items attached in
execution of the Judgment belong
to her and not the Judgment
Debtor. The 1st
Claimant led evidence and
tendered two invoices as proof
of purchase of the items stated
in the invoices. The items in
question are:
1.
1 pc
40 in Sony Bravia LCD
2.
TV
c/w mounting bracket
3.
1 set
furniture
4.
2 pcs
leather single seater chair
5.
1 set
garden chairs c/w table with
umbrella
In her evidence, the 1st
Claimant stated that she was a
sister to Mr. Atuchem. She said
she and her husband bought the
said items but could not send
them to their house because they
did not have enough space to
keep them where they live. They
were therefore keeping the items
in Mr. Atuchem’s house, which
was more spacious, until they
were able to complete their own
house. Under cross examination,
the suggestion by Counsel for
the Judgment Creditor that she
had not proved her case because
she had tendered in evidence an
invoice and not a receipt, was
rejected by the 1st
Claimant.
The definition of an invoice
provided in the Oxford Advanced
Learners Dictionary is as
follows:
Invoice – a list of goods that
have been sold, work that has
been done etc.
The definition in Wikepedia (the
free internet encyclopaedia) is
that “an invoice or bill”
is a commercial document issued
by a seller to the buyer,
indicating the products,
quantities and agreed prices for
products or services the seller
has provided the buyer......From
the point of view of a seller;
an invoice is a sales
invoice. From the point of
view of a buyer, an invoice is a
purchase invoice.” In
my opinion, an invoice is
sufficient proof of purchase.
And in view of the fact that
civil matters are decided on the
balance of probabilities, I will
find that the 1st
Claimant has sufficiently proved
that she purchase the goods
stated in the invoices tendered
in evidence.
The Judgment Creditor raised
what I consider to be a side
issue; i.e. that by engaging the
same Solicitor, the Judgment
Debtors and the Claimants appear
to be in some collusion. In my
view, it would have looked
better if the Judgment Creditor
and the Claimants has engaged
different Solicitors because the
rules on interpleader summons by
itself raise collusion and
therefore such representation
may tend to lend credence to
this. Nonetheless no evidence
was adduced by the Judgment
Creditor to sufficiently
establish that there was
collusion. But more
importantly, this issue is so
tangential to the issues raised
in this suit that I think the
court can decide this matter
without getting bogged with this
issue.
In conclusion therefore I will
hold that the attachment of the
properties, subject matter of
the interpleader, is wrongful.
I therefore set aside the
attachment.
Costs of GH¢2,000.00 awarded in
favour of Claimants.
BARBARA ACKAH-YENSU(J)
JUSTICE OF THE HIGH COURT
COUNSEL
KARREN ADDO
- PLAINTIFF
EMMANUEL EFFAH ANNAN
- CLAIMANTS |
