IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2015
CHRISLINE FINANCIAL SERVICES - (PLAINTIFF)
KOBI ENTERPRISE LTD & ANOR - (Defendants) CHRISTIAN DADEBOE - (Claimant)
DATE: 20TH OCTOBER 2015
SUIT NO: BFS/212/11
JUDGES: JENNIFER DODOO (MRS) JUSTICE OF THE HIGH COURT
ARCHIE DANSO FOR PLAINTIFF
EDWARD SAM CRABBE (WITH FIIFI ABBAM) FOR DEFENDANT
The Plaintiff in this suit has claimed ownership of a building which the Defendant had seized in execution of a prior judgment. The Plaintiff as Claimant had filed an affidavit of interest in which he had stated as follows:
1. I am the deponent and Claimant herein.
2. I swear to this affidavit the facts of which are within my personal knowledge and belief unless otherwise stated.
3. In or about July 2013, I was informed by a friend who deals in properties that Ideal Finance Ltd was offering a house situate at Ashalley Botwe for sale.
4. I thereafter approached the said company and offered to purchase the said house being No. EAB 11/12, Ashalley Botwe, Accra.
5. Upon enquiry as to the ownership of the property, the company showed me various documents including a Statutory Declaration, a Deed of Assignment, a search and the ruling of the High Court, Accra in its favour. Copies of the documents are annexed hereto and marked as CD1, CD2, CD3 and CD4.
6. I gave copies to my lawyers who after studying same gave me the green light to purchase the property which I did and was given an assignment of the company’s interest in said property. Copy of Deed of Assignment and receipt of payment are annexed hereto and marked as CD5 and CD6..
7. Another search conducted on the property recently is annexed hereto and marked as CD7.
8. I am the bona fide owner of the said property as I have been given valuable consideration for same after making sure that it belonged to my vendor.
9. I accordingly swear to the instant affidavit praying this Honourable Court to uphold my claim.
The Defendant opposed the instant claim stating at paragraphs 3, 4 and 5 of its affidavit in answer to the Claimant’s claim as follows:
3. That as legal and beneficial owner thereof, the judgment debtor’s property was attached by the Sheriff of this Court for purposes of execution. That reserved price has been granted by this court differently constituted.
4. That the affidavit of interest is legally flawed and against the weight of evidence since none of the documents attached and labeled as Exhibits D1-D7 confers title to the property in dispute in the claimant.
5. That in the circumstances, the interpleader claim ought to be dismissed as legally incompetent.
The court proceeded to take evidence from the 2 rival contenders to determine the true ownership of the property in question.
The Plaintiff repeated his averments made in his affidavit of interest. He called a witness who told the court he used to be Head of Credit at Ideal Finance Ltd. Ideal Finance granted a loan facility to Nad Shipping Ltd and one Nana Kwabena Kobi guaranteed the repayment of this loan. When Nad Shipping Ltd failed to pay off the loan, the property used as collateral was proceeded against. PW1 tendered a number of documents in support of the Plaintiff’s case.
Exhibit A is Deed of Assignment made between Ideal Finance Ltd and Christian Dadeboe. It is dated 22nd July 2013. From the recitals, Ideal Finance itself had received an Assignment from Nana Kwabena Kobi on 23rd October 2012 which the latter had assigned to the former the unexpired component of his 99 year lease commencing 28th October 2001. This Assignment had been made in consideration of a loan facility granted to Nad Shipping Ltd. On the failure of Nad Shipping to pay off the loan facility, Ideal Finance Ltd foreclosed on the property.
The Credit Facility Agreement was tendered in evidence as Exhibit C. Among the securities listed was the assignment of landed property in the name of Nana Kwabena Kobi located at Ashalley Botwe.
In further confirmation of this assignment, Nana Kwabena Kobi executed a Statutory Declaration on 22nd April 2012 assigning his interest in the property as part of the security for the loan to Ideal Finance Ltd. (See Exhibit D).
Nana Kwabena Kobi then went on to execute a Deed of Assignment in favour of Ideal Finance Ltd on 23rd October 2012. (See Exhibit E).
The Defendant’s representative told the court that the Defendant had sued Kobi Prime Enterprise and Nana Kwabena Kobi and had obtained judgment against them. They then proceeded to attach the property and auction it in order to realize their judgment. It was then that the Plaintiff made a claim to the said property. He gave the date of attachment as 8th August 2012.
The Defendant in its written submissions argued that the property in issue was not available for use by the Judgment Debtor in a prior suit as collateral for a loan. Counsel referred to the case of Dadzie v. Amoako (Anokye – Claimant (2003-2005) 1 GLR 569. They also argued that on the balance of probabilities, it was entitled to judgment. It referred the Court to the cases of Re Ashalley Botwe Lands (2003/2004) SCGLR 420 and Ackah v. Pergah Transport Ltd (2010) SCGLR 728.
Exhibit 9 is dated 27th October 2011. It is a judgment in respect of Suit No. BFS/212/2010 titled Chrisline Financial Services v. Kobi Prime Enterprise & another. In this case judgment was entered against the Defendants in the sum of GH¢72,963.02 together with interest from 7th November 2009 till date of final payment. Chrisline thereafter went into execution of its judgment on 2nd and 8th August 2012. The Execution Docket has the following entries made:
CERTIFICATE OF EXECUTION
Writ executed at Ashalley Botwe on the 2nd and 8th August at 6.40 am and 3.35 pm. I seized a Toyota with Registration No. GS5580-12 and items and a storey building known and described to me as the property of the judgment debtor herein Mr. Kobi, 2nd Defendant.
Writ returned to the Deputy Sheriff Commercial Court Accra on the 8th August 2012.
Emmanuel Quagraine 8th August 2012.
From the various dates given above, the property was under attachment as of 8th August 2012 in furtherance of a judgment dated 27th October 2011.
The Defendants/Judgment Debtors to the suit were aware that certain properties had been attached. Consequently, they caused their Solicitors to file an Application for Stay of
Execution and Payment of Judgment Debt by Installments on 28th August 2012. (See Exhibit 13). At paragraph 6 of the affidavit in support of Exhibit 13, the deponent Nana Kwabena Kobi stated:
6. That on the 2nd day of July 2012, the Plaintiffs went into execution and seized 2 television sets, one fridge, dining chairs and then attached my house. They also took away a vehicle belonging to a hiring company.
The Judgment Debtor then filed an Application for Stay of Sale of his house by Public Auction. This application was dismissed by the Court of Appeal on 8th January 2013. (See
Exhibit 15. On 21st April 2003, a reserved price was fixed for the sale of the Judgment Debtor’s house by public auction. (See Exhibit 15)
There is no indication in the execution file (Exhibit 15) that the property was ever released from attachment.
Exhibit 1 is also a Statutory Declaration. It is typeset with the date 23rd April 2012 but the 2 in typed 2012 has been altered in ink to read 23rd April 2013. I am inclined to believe that the deponent meant to write 23rd April 2013 instead of 2012. At paragraphs 3, 4, 5 and 6 the deponent states:
3. That on 2nd October 2012, NAD Shipping Company Ltd (hereinafter called the Company) acting by its Managing Director, Nana Appiantua IV, applied for a loan facility of GH¢200,000.00 from Ideal Finance Ltd….
4. That Ideal Finance Ltd granted the loan by Credit Facility Agreement 22nd October 2012
5. That I have agreed with Ideal Finance Ltd to assign my interest in the property to it, as part of the security for the loan facility granted to the Company.
6. That this loan facility is secured inter alia, with the assignment of the property in favour of Ideal Finance Ltd, the lender.
If the loan was taken in October 2012, the Assignment which was a condition precedent for the granting of the loan could not have been made prior in time to granting of the loan.
Therefore at the time that Nana Kwabena Kobi purported to execute a Deed of Assignment in favour of Ideal Finance Ltd with effect from 22nd October 2012 at the Legal
Department on 24th October 2012 and to make his Statutory Declaration on 23rd April 2013, the property had already been attached in execution of the judgment obtained by Chrisline Financial Services. Nana Kobi had made a false statement under oath assigning his interest in his property when he knew by the court processes that judgment had been taken against him and that his property had been attached under writ of FIFA. He continued in his falsehood when he applied to the court to have his house opened. In the affidavit in support of his application, he denied ever assigning his house to Ideal Finance. (See paragraphs 9 and 10 of Exhibit J) The court in its ruling found that he had signed an assignment and dismissed his application. (See Exhibit K.)
It appears that Nana Kobi knowing that his house had been attached, still went ahead to offer it as security for a loan when it was already encumbered having been attached by the court. The said property was not available for assignment and it was certainly not available to be sold to the Plaintiff, Christian Dadeboe. In the case of Dadzie v. Amoako (Anokye, Claimant) 2003/2005 GLR 569, the Appellant who happened to be the Judgment Creditor obtained judgment against the Defendant/Judgment Debtor. The Judgment Debtor’s property was subsequently attached in execution of the said judgment. The Sheriff’s Official attached the property by serving a copy of the order on the Judgment Debtor. The Judgment Debtor in spite of these developments sold the property to the Claimant. The Claimant promptly filed a Notice of Claim to the property. His claim was upheld by the trial judge. On appeal, the Court of Appeal at page 576referring to Order 43 r. 11 of LN 140 A said;
After any attachment shall have been made by actual seizure or by written order, after is shall have been duly intimated and made known in manner aforesaid, any alienation without leave of the court of the property attached, whether by sale or gift or otherwise and any payment of the debt, or debts or dividends or shares to the judgment debtor during the continuance of the attachment, shall be null and void, and the person making such alienation or payment shall be deemed to have committed a contempt of court.
The Court held further that according to the wording of Order 43 r. 11 it is immaterial whether or not a purchaser from the debtor had notice of that seizure, or even of the writ of execution. During the continuance of the attachment, the rule placed the attached property in the hands of the Court through the Sheriff. That would therefore render any alienation without leave of the Court null and void as well as a subject matter of sanction by the Court.
From the evidence, the disputed property had been attached by the Court. Although it was referred to as being unnumbered, it was the same property that had been attached that the Plaintiff laid claim to. In the Plaintiff’s claim it was found to have been numbered i.e. EAB 11/12. The property howsoever described was not unencumbered. The foundation of the Plaintiff’s acquisition of the property was non-existent. At the time it was assigned to his “grantor” Ideal Finance, it was the subject matter of attachment by the court. Consequently, no conveyance could have been made to him. Any document he obtained through the purchase of House No. EAB 11/12 would be of no effect. As Lord Denning put it succinctly in MacFoy v. UAC (1962) AC 152
“You cannot put something on nothing and expect it to stay there. It will collapse.”
The property was encumbered at the time Ideal Finance Ltd purported to assign same to the Plaintiff on 22nd July 2013 (See Exhibit A). Consequently, Ideal Finance Ltd had nothing to pass on to Christian Dadeboe. The documents he had tendered rather go to support the Defendant’s case that they were made after the attachment of 8th August 2012. Thus the attachment predated the Plaintiff’s acquisition. See also the case of Manu v. Nsiah (2005/2006) SCGLR 25 where the court stated that the well-established rule was that where the evidence of a party on a point in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good and apparent reason the court finds the corroborated version incredible impossible or unacceptable.
Ideal Finance, the Plaintiff’s grantor said it went into peaceful possession of the disputed property by virtue of the Borrowers and Lenders Act, 2008 (Act 773). Sections 21-25 specify the steps a lender has to go through to register and realize a collateral under this act. These are set out as follows:
21: Collateral Registry
There is established by this Act a Registry known as the Collateral Registry.
22: Object of the Registry
The object of the Registry is to register charges and collaterals created by borrowers to secure credit facilities provided by lenders.
23: Functions of the Registry
The Registry shall register charges and collateral, perform other functions as are determined by the Bank.
24: Appointment of Collateral Registrar
The Bank shall appoint a Registrar of charges and collateral on terms and conditions specified in the letter of appointment.
25: Registration of Charges
(1) A borrower or a person interested in a charge shall register a certified copy of a charge or collateral created by the borrower in favour of a lender with the Collateral Registry within 28 days after the date of the creation of the collateral or charge.
(2) Where a charge is created by a company, the requirement to register charges with the Collateral Registry under this section shall be in addition to the requirement under section 107 of the Companies Act, 1963 to register charges with the Registrar of Companies.
(3) A charge which is not registered in accordance with subsection (1) is of no effect as security for a borrower’s obligations for repayment of the money secured and the money secured shall immediately become payable despite any provision to the contrary in any contract.
Section 26 provides the details of the register as containing:
(a) The name of the borrower
(b) The name of the lender
(c) The nature of the charge
(d) The date of creation of the charge
(e) The amount secured by the charge
(f) Short particulars of the property charged
(g) In the case of a floating charge, the nature of any restriction on the power of the borrower or chargor to grant further charges that rank in priority to and with the charge created.
When the above has been complied with, the Registrar shall issue a certificate of the registration of particulars of any charge registered to the borrower. This certificate shall be evidence in the absence of a copy of a document on the charge.
Neither the Plaintiff nor his grantor has led any evidence to show that the charge made by Nana Kwabena Kobi in favour of Ideal Finance on behalf of NAD Shipping was ever registered. Since they did not avail themselves of the provisions of the Borrowers and Lenders Act, it is surprising that the vendor is staking a claim under it. They also did not go into possession by the tenets of the Borrowers and Lenders Act which prescribes the form in which peaceful possession could be made. See Sections 32 (1) and (2) and 33 which provide as follows:
32. Default in payment
1. Where a borrower fails to make payment on the due date for a payment, the lender shall give notice of default to the borrower in writing and request the borrower to pay the amount due within 30 days.
2. The lender may send the notice by
(b) Courier Service
(c) Registered Mail or
(d) Other means determined by the lender in consultation with the borrower.
33. Remedies of lender on default
Where a borrower fails to pay an amount secured by a charge under this Act, the lender may
(a) Sue the borrower on any covenant to perform under the credit agreement or
(b) Realize the security in the property charged on notice to the person in possession of the property.
Section 34 is captioned Lender’s right to possession and states as follows:
(1) In the exercise of right of possession of property that is subject to a charge to secure a borrower’s obligation under a credit agreement, a lender is not obliged to initiate proceedings in court to enforce the right of possession.
(2) When a lender is unable to enforce a right of possession in a peaceable manner, the lender may use the services of the police to evict the borrower or other person in possession pursuant to a warrant issued by a court.
The Act makes it an offence for anyone to refuse to vacate the premises or to obstruct the lender who decides to exercise his rights of foreclosure.
In PW1’s evidence given on 7th May 2015 he testified as follows on pages 7- 8:
Q. In paragraph 7 of a supplementary affidavit served by the Defendant the property they claim was attached is an unnumbered house situated at Ashaley Botwe. What do you have to say to this?
A. My Lord the property assigned to Ideal Finance is a numbered property EAB/11/12 Ashaley Botwe.
Q. The Defendant also says that Ideal Finance did not comply with the requirements of the Borrowers and Lenders Act and therefore its possession of the property is of no legal effect. What do you have to say to that?
A. My Lord. The repossession was not only done because of the existing assignment of the property to Ideal Finance, but because of the existing assignment executed in favour of Ideal Finance. But also the client, the said Nana Kwabena Kobi executed a Statutory Declaration giving his consent and ownership of the property to Ideal Finance. So we rightfully possess the property.
In cross-examination at pages12-13 this is what transpired:
Q. You failed to do a search at the Collateral Registry, I put it to you?
A. My Lord, I am not aware that a search was done or not.
Q. In fact Ideal Finance made no such search at the Collateral Registry at the Bank of Ghana?
A: My Lord. I am not aware.
Q. And yet Ideal Finance claim they went to claim the property peacefully is that correct?
A. It is correct.
Q. And by Exhibit A paragraph 3 you said you peacefully repossessed the property?
A. Yes. My Lord
Q. Did you register the charge over the property at the Collateral Registry?
A. My Lord, I am not aware.
Exhibit 14, a search report of any collateral registered at the Collateral Registry came up with the following result:
“No security interest matching your search parameter was found.”
Ideal Finance could have under the Borrowers and Lenders Act, peacefully possessed the property so long as it had registered its interest in the property at the Collateral Registry of the Bank of Ghana. Not having done so, it could not take benefits under this Act to peacefully possess the property. It ought therefore to have gone to court to realize the security it deemed to have had.
In Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the 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.
See also Section 12(1) of the Evidence Act which provides as follows:
Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
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
The rules of evidence required the parties to make out their claims on a balance of probabilities. 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.
The Plaintiff’s evidence failed to measure up to the standard required in law suits See sections 10, 11 and 12 of the Evidence Act. He is therefore not entitled to relief from this court as there was insufficient evidence to uphold his claim.
The Plaintiff has bought nothing and the property which is still in the Court’s possession and due for auction will be put up for public auction as already scheduled.
The interpleader action fails and is dismissed.
In view of the circumstances of this case where the Plaintiff has been thrown into litigation through no fault of his own, there will be no awards as to costs.
JENNIFER A. DODOO
JUSTICE OF THE HIGH COURT