IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2016
ADU BOAHEN - (Appellant)
NOBLE DREAM MICRO FINANCE AND CHARLES E.K. ASAFUAH - (Defendants)
DATE: 27TH JUNE, 2016
SUIT NO: INTS/06/16
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS: OHENEWAA BOATENG NEWMAN FOR EXECUTION CREDITOR IBRAHIM ADAMS FOR CLAIMANT
It is provided under Order 44 rule 12 of the High Court (Civil Procedure) Rules, 2004, C.I. 47 as follows:
(1) 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 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 that person's address for service.
(2) On receipt of a claim made under sub rule (1), the Registrar shall forthwith give notice of it to the execution creditor who shall within four days after receiving the notice, give notice to the Registrar informing the Registrar whether the execution creditor admits or disputes the claim.
It is further provided under Order44 rule 13 (1) of C.I. 47 that:
(1) Where on the hearing of proceedings pursuant to an order made under rule 12(4) all the persons by whom adverse claims to the property in dispute, in this rule referred to as the "claimants" appear, the court may
(a) summarily determine the question in issue between the claimants and execution creditor and make an order accordingly on such terms as may be just: or
(b) order that any issue between the claimants and the execution creditor be stated and tried and may direct which of them is to be plaintiff and which defendant.
The execution creditor herein obtained judgment against Noble Dream Financial Services and proceeded to attach vehicle with registration number AW 4560- 13 allegedly belonging to the said company. On 31/8/2015, Charles E.K. Asafuah filed a notice of claim under Order 44 rule 12 of the High Court (Civil Procedure) Rules, 2004, C.I. 47. The Registrar duly notified the execution creditor, and on 09/09/15, the execution creditor, acting per his solicitor, filed a notice to dispute the claim.
When the interpleader suit was placed before this court, directions were given on 30/10/2015 for the claimant to file his affidavit of interest and exhibit evidence of title to the vehicle in issue. The execution creditor was also ordered to file his affidavit in response. These processes were duly filed and the court proceeded to determine the issue of ownership of the vehicle summarily. The parties were cross-examined on their respective affidavits
The execution creditor deposed that he obtained a loan of GH¢ 40,000.00 from the defunct Noble Dream Micro Finance, Fawade Branch, Kumasi and used the same to purchase vehicle No. AW 4560-13 from an auctioneer. He further deposed that all documents pertaining to the sale of the vehicle were handed over to the Management of the said financial institution until the loan was completely repaid. He then exhibited photocopies of his savings passbook, pay-in-slips and agreement signifying his ownership of this vehicle as the exhibit A series.
The execution creditor rejected the depositions contained in the claimant's affidavit of interest as being false. In response, he averred that the claimant failed to exhibit proof of purchase from the alleged auctioneer, specifically, a certificate of purchase. And, to the extent that all documents covering the vehicle bear the name Noble Dream Financial Services, it is the legitimate owner. The title documents were exhibited as exhibit 1 series. He further deposed that being in possession of documents pertaining to the vehicle does not make the defendant the owner of the vehicle.
The question which has to be decided is whether or not the claimant is the owner of the vehicle in issue. Counsel in the case were to file their respective closing submissions on or before 03/06/2016. Counsel for the execution creditor filed her address on 02/06/16 and as at the close of work on 10/06/16, the claimant's lawyer had not filed his submissions. I therefore proceeded to write the judgment without his inputs.
The principle of proof in civil suits as expounded by Kpegah JA ( as he then was) in Zambrama v Segbedzie (1991) 2 GLR 221 and subsequently applied in cases such as Takoradi Floor Mills v Samir
Faris (2005/2006) SCGLR 882 at 884 (holding 5); Fosua v Dufie (deceased) & Adu-Poku Mensah (2009) SCGLR 316; Continental Plastics Ltd v IMC Industries (2009) SCGLR 298 at pages 306 to 307, was adequately analyzed in the closing submissions of counsel for the execution creditor. Hence, there is no need to belabour the point.
After reviewing the evidence before this court, counsel for the execution creditor submitted that the claimant failed to adduce evidence of his ownership apart from admitting in cross-examination that the title documents are in the name of the judgment debtor who loaned money to him to purchase the vehicle at an auction. Counsel then drew the court's attention to the DVLA FORM C which bears the name of the judgment debtor as the new owner and she invited the court to find that by the preponderance of the probabilities, the claimant has failed to show that he is the legal owner of the vehicle.
Going by the principle of proof in civil suits as stated above, i am in agreement with the submissions made by counsel for the execution creditor to the effect that the claimant has failed to discharge the evidential burden placed on him to establish his ownership of the vehicle in issue.
The reasons for giving preference to that version of the rival claims are these: (i) the claimant did not show any documentary evidence of legal ownership but the execution creditor tendered a copy of the DVLA FORM C which has NOBLE DREAM FINANCIAL SERVICES, whose address is P.O.Box 48 Agona Ashanti, as the New owner; (ii) the claimant did not tender any hire-purchase agreement or "work and pay" agreement between him and Noble Dream Financial Services from which reasonable inferences could be made as to whether he has some form of equitable interest in the said vehicle through regular repayments towards the purchase price and or interest; (iii) the exhibit A series are a typical micro finance loan agreement and repayments made. Per the loan agreement, an amount of GH¢40,000.00 was given to the claimant by Noble Dream Financial Services and he was expected to pay back in 18 months in monthly installments of GH¢3,622.22; In exhibit A1, the loan amount was credited to the claimant's account with Noble Dream Financial Services numbered SU 000232 on 24/05/2013 and he withdrew this amount in tranches between 24/05/2013 and 11/06/2013; (iv) there is no link between the money loaned to the claimant and any auction sale and in fact, there is absolutely no credible evidence of the alleged auction at which the claimant purchased the vehicle in issue and legal title passed on to the judgment debtor, Noble Dream Financial Services. His bare assertion on oath that he bought the vehicle at an auction will not suffice.
On the totality of the affidavit evidence and all the evidence on record, the only irresistible conclusion is that Noble Dream Financial Services Ltd is the legal owner of the vehicle with registration number AW 4560- 13 and I so find. The claimant has failed to establish his interest in the vehicle in any manner.
I will have to enter judgment in favour of the execution creditor and judgment is accordingly entered in his favour. The execution process in respect of vehicle numbered AW 4560- 13 can therefore continue.