SMALL SCALE FINANCIAL ASSISTANCE CO LTD vs JOHN FREEMAN DONKOR & OTHERS & ABUSUAPANIN KWAKU MENSAH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    KUMASI - A.D 2018
SMALL SCALE FINANCIAL ASSISTANCE CO. LTD -(Plaintiff)
JOHN FREEMAN DONKOR AND OTHERS AND ABUSUAPANIN KWAKU MENSAH - (Defendant)

DATE:  31 ST JULY, 2018
SUIT NO:  INTS 23/2016
JUDGES:  DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
LAWYERS:  SHADRACH YEBOAH OBENG FOR CLAIMANT
JUDGMENT

 

Background

In this interpleader action, the Claimant herein claims interest in property H/No. Plot 26 Block ‘B’ Asokwa New Amakom Extension, Kumasi (known as Freeman Hotel, Asokwa) which was attached by the Deputy Sheriff attached to this Court by a Writ of Fifa No. is 56/15 in the substantive suit entitled- SMALL SCALE FINANCIAL ASSISTANCE CO. LTD. VRS. JOHN FREEMAN DONKOR &OTHERS.

 

The Claimant’s Case

The basis of the Claimant’s claim as can be gleaned from the Notice of Claim is thatthe disputed property is the family Property of the Claimant’s family. In his Affidavit of Interest, the Claimant set out the root of title of the said property. The Claimant repeated the said root of title per his evidence before the Court during the hearing. According to the Claimant, the disputed house belongs to the family of Opanin Kwame Asuming (deceased). The Claimant stated that he is the head of the said family which is an Aduana family at AbenaseDwenase near Ejisu in the Ashanti region of the Republic of Ghana. The Claimant further stated that, the said Opanin Kwame Asuming acquired the disputed house from one Stephen Kwadwo Manu per a Deed of Assignment dated 1st December 1969 and registered same at the Lands Commission on 28th April 1970 under Title No. 4325 and Serial No. 247/70. According to the Claimant, upon the death Intestate of Opanin Kwame Asuming, the said property became a family property and same was passed onto his successor and head of family, Kofi Kumah and that the said Kofi Kumah held and managed the property for the family until his death on 11th February 1995. It is also the claimant’s case that upon the death of the said Kofi Kumah, he was appointed by his family as head of the family. The disputed property then came under his control and management as head of the family to hold and manage same for the said family. The Claimant also asserted that, the Judgment Debtor, John Freeman Donkor only rented the property from his predecessor and used same to operate a Hotel, hence the name Freeman Hotel. However, the subsisting tenancy presently is not even with the Defendant/Judgment Debtor but rather same is between the Claimant acting for the family and a limited liability company called J.F. Donkor Hotel Co. Ltd. The said tenancy is for a period of twenty (20) years running in three (3) sub-terms from March 2008. The Claimant contended that the property in dispute is not for the Defendant/Judgment Debtor and same accordingly cannot be attached in execution of judgment against the Defendant/Judgment Debtor.

 

The Case of the Plaintiff/Judgment Creditor

The Claimant’s claim was disputed per a Notice to Dispute filed by the Plaintiff/Judgment Creditoron the 7th day of April 2016. Beside the bare denial of the claimant’s claim, the plaintiff judgment creditor did not lead evidence in dispute of the claim. The main issue confronting the court in this suit is: whether or not property H/No. Plot 26 Block ‘B’ Asokwa New Amakom Extension, Kumasi (known as Freeman Hotel, Asokwa) can be attached in execution of the judgment against the Plaintiff/Judgment Debtor, John Freeman Donkor. The claimant instituted the instant interpleader suit under Order 44 rule 12(1) of the High Court (Civil

Procedure) Rules, 2004 C.I. 47 which states:

“A person who makes a claim to or in respect of a property taken or intended to be taken in execution under process of the Court, or to the proceeds or value of any such property, shall give notice of the claim to the Registrar and shall include in the notice a statement of the person’s address for service.”

 

My understanding of the wording of Order 44 rule 12 as a whole is that property attached in execution of judgment cannot be alienated without leave of the court. The property involved must belong to the judgment debtor for the same to be properly attached. In an interpleader proceeding, the claimant must set out facts which constitute proof of ownership. The claimant must prove on a balance of probabilities as required in civil trials that the property is his or hers. Thus, in the case of Takoradi Flour Mills v. Samir Faris [2005/2006] SCGLR 882 at 900, the court said:

“… in assessing the balance of probabilities, all the evidence, be it that of the Plaintiff or the Defendant must be considered and the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.”

 

Also, in Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the Supreme Court held:

“It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.”

 

Indeed, balance of probabilities connotes the existence of a state of fact which is more probable than its non-existence. The Evidence Act, 1975 (NRCD 323), s 12(2) also provides:

“Preponderance of the probabilities’ means 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.”

 

Counsel for the Claimant argued forcefully in his written submission that the Defendant/Judgment Debtor, John Freeman Donkor has no interest in the disputed property and as such same cannot be attached in fulfilment of the judgment debt. Counsel made reference to exhibit A, Band D which are evidence of tenancy entered into by the family of the claimant on one hand and the defendant/judgment debtor on the other. He also made reference to a subsisting tenancy agreement, exhibit E in respect of the subject matter of the dispute made between the claimant and J. F. Donkor Hotel Company Limited acting per its Managing Director who is the Defendant herein and submitted that there is no tenancy agreement between the claimant and the defendant. Counsel invited the court to uphold the claim as cogent evidence has been led to establish same. At the end of the trial counsel for both parties were ordered to file their written submissions. Counsel for the claimant complied with the order but plaintiff/judgment creditor’s counsel failed to do so. This judgment is therefore delivered without the input of counsel for the plaintiff/judgment creditor. In establishing his claim, the claimant led both oral and documentary evidence. The position of the law on documentary evidence was amplified by the Supreme Court in Adei and Anor vrs Robertson and Anor (2016) 101 GMJ 160 when it was stated that:

“unless a document in evidence is invalid on the grounds of breach of statute of has been shown not to be authentic, a Court of law would consider it favourably in preference to inconsistent oral testimony”.

 

Exhibits A, B and D are evidence of tenancy agreements entered into by the representative of the claimant’s family and the defendant judgment/debtor herein. Exhibit E is a subsisting tenancy agreement between the claimant (acting on behalf of his family) and J. F. Donkor Hotel Company Limited acting per its Managing Director, the defendant/judgment debtor herein. These documents corroborate claimant’s testimony that the disputed property is for his family. In addition to the above exhibits, the claimant also tendered exhibit C which is a search report from the Lands Commission. The said report clearly indicates that Opanin Kwame Asuming acquired the disputed property from one Stephen Kwadwo Manu. From the search report, a Deed of Assignment dated 1st December, 1969 was registered on 28th April 1970 to cover the transaction. Again, this corroborates claimant’s testimony relating to the root of title of his family. Indeed, the authenticity of exhibit C as an official document is not in doubt.It is a copy of a writing in official custody and therefore in the absence of any evidence to the contrary the same is presumed to be genuine. Section 162 of the Evidence Act, 1975 (NRCD 323) provides:

“Section 162—Copies of Writings in Official Custody.

 

A copy of a writing is presumed to be genuine if it purports to be a copy of a writing which is authorised by law to be recorded or filed and has in fact been recorded or filed in an office of a public entity or which is a public record, report, statement or data compilation if—

(a) an original or an original record is in an office of a public entity where items of that nature are regularly kept; and

(b) the copy is certified to be correct by the custodian or other person authorised to make the certification, provided that the certification must be authenticated.”

 

The evidence on record suggests that at all material time the judgment debtor has never owned the disputed property. With this, the judgment creditor had the reverse onus to rebut the prima facie evidence and prove that the disputed property belonged to the defendant/judgment debtor at the time it was attached. The plaintiff/judgment creditor, however, made no serious attempt at discrediting the oral and documentary evidence of the claimant. In fact, the claimant was resolute and never wavered under cross examination. It is concluded that the claimant led documentary evidence to prove that the disputed property belongs to his family. In the circumstance, I conclude that the claimant managed to prove on a balance of probabilities that the H/No. Plot 26 Block ‘B’ Asokwa New Amakom Extension, Kumasi (known as Freeman Hotel, Asokwa) is his family property. The interpleader action succeeds.

 

It is hereby ordered that H/No. Plot 26 Block ‘B’ Asokwa New Amakom Extension, Kumasi cannot and shall not be attached in execution of the judgment.

There will be no order as to costs.