Ownership of Property numbered Plot 18 A Block 'E" Adweeho, Mampong in the Ashanti Region is the subject matter of the instant interpleader suit brought by one Akua Nimo.

The genesis of this suit is that First National Savings and Loans Co. Ltd obtained judgment against one Nana Kwesi Kodua and subsequently attached the property in dispute. Akua Nimo filed a notice of claim on 28/11/2014. Upon service of the said notice on the execution creditor, her claim of ownership was disputed as per the notice filed on 17/12/2014. Subsequently, all the parties, including the Judgment Debtor were served with hearing notices for the determination of the issue of ownership of the property in issue. At the direction of the court, the Claimant was made the Plaintiff and the Execution creditor, the 1^st Defendant. In order to effectively deal with the issue in controversy and to avoid multiplicity of suits, the judgment debtor, Nana Kwesi Kodua, who actually used this property as security for the credit facility was joined as the 2^nd Defendant.

As earlier indicated, the sole issue for determination is whether or not Akua Nimo is the owner of the property numbered Plot 18^A Block 'E" Adweeho, Mampong in the Ashanti Region?

The Plaintiff sought to prove her case through her lawful attorney, Kwaku Attakorah, who identified himself as a sister of the Plaintiff. According to him, the 2^nd Defendant is the ex-husband of the Plaintiff. In giving an account of how the property was acquired, Kwaku Attakorah said the plaintiff who lives in Germany sent some money to him to acquire a piece of land. Subsequently, he acquired plot number 18^A which formed part of the Ofiri Stool Land but was owned by Opanin Kwadwo Bonsu. He put in evidence various documents to show that the land was indeed allocated in the name of the Plaintiff and the building thereon was put up at her instance. The documents so tendered included a site plan (exhibit B); allocation letter from Ofiri Stool Lands (exhibit C); Application letter for a building plot (exhibit D); letters from Asante Mampong Traditional Council and Stool Lands Administration (exhibits E & F) and Receipts of payments in respect of plot registration, property rate ground rent (exhibit G series). Further, Attakorah tendered in evidence a search report from the Lands Commission as exhibit H to buttress his point that the land in issue belongs to Akua Nimo but not Nana Kwesi Kodua. As such, he challenged the 1^st Defendant's right to sell this property in satisfaction of the debt owed by the 2^nd Defendant.

In cross-examination, Attakorah told the court that Akua Nimo is the same person as Adwoa Owusuaa. However, he failed to give any satisfactory explanation as to why the allocation letter (exhibit D) predates the application for the building plot (exhibit C).He also stated that the relationship between the Plaintiff and the 2^nd Defendant broke down two years after their child by name Jennifer Kodua was born and that the documents covering the property were in the custody of Jennifer.

Jennifer Kodua testified as PW1. She told the court that Akua Nimo is the same person as Rose Attakorah, also known as Adwoa Owusuaa. She also corroborated Attakorah's evidence on the acquisition of the plot in issue and the subsequent construction of the building thereon for her mother. Again, PW1 confirmed that exhibits B,C,D,E, and F are the documents covering the property.

PW1 took the Plaintiff's case to another level as she recounted how the documents got into the 2^nd

Defendant's possession. The following part of her evidence needs to be reproduced for emphasis:

"... In 2009, I was a student by then, my mother wanted me to visit her in Germany. I needed a guarantor but my mother's name on my birth certificate is Rose Attakorah and she uses Adwoa Owusuaa in Germany so she could not be a guarantor. My father's name on my birth certificate is his name Isaac Tweneboah Kodua. At that time, my father did not have any landed property they requested so he pleaded my mother gives him the property to be able to guarantee my travel so my mother asked my uncle Kwaku Attakorah to bring the documents to me. We did not tell him what we were using it for. My mother had to do a change of ownership for the documents to bear the name Nana Kwesi Kodua to enable him to guarantee for me...".

The witness admitted that even though the visa application was refused, the 2^nd Defendant caused her to sign a document when she was a student and did not appreciate the contents thereof. Later,

PW1 said the 2^nd Defendant brought a document from the Lands commission to sign on the basis that the land in issue was state land and so he had to apply for a lease from the Lands Commission.

When the visa saga fell through, the witness said her mother requested the 2^nd Defendant to reverse ownership to her. Thus, when the 2^nd Defendant eventually returned exhibits B to F, to Attakorah, they presumed the reversal had been done. Concluding, PW1 said any document bearing any name other than her mother's name is invalid".

Counsel for the Plaintiff strenuously attacked the evidence of PW1 as regards her intended travel to Germany and the land documentation. Even though PW1 admitted that a lease covering the land in issue has been executed in favour of the 2^nd Defendant, she maintained that the said lease is invalid. In her view, the 1st Defendant bank failed to do due diligence regarding this property before they released the money to the 2^nd Defendant.

The 2^nd Defendant took his turn to testify. He corroborated the evidence of PW1 with respect to her visa application and the execution of a lease covering the land in his name. He admitted presenting the said lease as security for a loan facility from the 1st Defendant bank. Upon presentation of the lease to the bank, the 2^nd Defendant said the manager told him the documentation was not complete and that he had to obtain a land Title Certificate. That apart, he testified that the Lands Commission drew his attention to the fact that the land in issue is State land and Nana Mamponhene could not have executed a lease in respect of the same. It is also in his evidence that he was once the chairman of the Mampong Stool Land Committee.

On the part of the 1st Defendant, its credit officer by name Anthony Agyei Sarpong gave evidence. Per his testimony, the 2^nd Defendant applied for an overdraft facility of GH¢60,000.00 and secured it with the property numbered Plot 18 ^A Block E Adweeho Mampong. He also handed over a lease and deposited a memorandum of deposit of title deeds. According to the witness, the Bank did due diligence before accepting the security but the Defendants disagreed during cross-examination by stressing that if due diligence had been done, the bank would have known that the 2^nd Defendant is not the owner of the property. Documents tendered in support of the 1st Defendant's case include the Banking Facility Agreement (exhibit 5); The Lease executed between Mamponhene and Nana Kwasi Kodua (exhibit 3) and a letter written by the 2^nd Defendant under the heading " REQUEST FOR STOPPAGE TO SELL MY PROPERTY REF: PROPERTY NUMBERED AS PLOT 18 A BLOCK E SITUATED AT ADWEHO, ASHANTI MAMPONG, ASHANTI" (exhibit 4).

The lawyers for the parties were to file their respective written submissions on or before 07/09/2015 but as at the third week of September, no written address had been filed by any of the lawyers. I therefore did not have the benefit of their written submissions.

My task here is quite simple. That is, to analyze the entire evidence on record and determine who owns the property in dispute. In this case, the Plaintiff who is asserting ownership bears both the evidential burden as well as the burden of persuasion, until the burden is shifted. The Plaintiff is required to prove her title so that on the balance of probabilities, the court will find her case to be more probable than not, else she loses. In resolving this issue, I am enjoined to consider all the evidence on record, be it that of the Plaintiff or the Defendant, as was held in Takoradi Floor Mills v Samir Faris (2005/2006) SCGLR 882 at 900 per Ansah JSC.

Indeed, the Supreme Court in the case of Mondial Veneer (Gh) Ltd v Amuah Gyebi XV (2011) 1

SCGLR 466 said at page 475 thus:

“ In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title , and on whom the burden of persuasion falls, as in this instant case, to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where a party has succeeded in establishing these facts on the balance of probabilities, that the party would be entitled to the claim..."

Also, the Supreme Court in the case of Yaa Kwesi v Arhin Davis & Anor (2007/2008) SCGLR 580 (holding 1) expressed a similar view. The court held that since the Plaintiffs/Appellant had sued for a declaration of title, among other things, he assumed the onerous burden of proof of title to the disputed land by the preponderance of the probabilities as required by sections 11(1), 11 (4) and 12 of the Evidence Act 1975 (NRCD 323), or risk the prospect of losing his case. There are several permissible ways of proving a party's case in court. The Supreme Court in the case of Ackah v Pergah Transport Ltd (2010) SCGLR 728, pointed out various methods of producing evidence . These include testimonies of the party and material witnesses, admissible hearsay, documentary and other real evidence , without which the party cannot succeed in establishing the requisite degree of proof in the mind of a tribunal of fact.

In the case before me, the Plaintiff's source documents are exhibits B, C and D. Exhibit B is a site plan bearing the name of the Plaintiff. I will revert to it. Exhibit C is an allocation letter dated 28-05-2004 and it is as follows:

Dear Sir/Madam,

Plot N0 18 A Block E Adweeho, Mampong- Ashanti

I the undersigned/marked have the honour to inform you that the above mentioned plot has been allocated to Akua Nimo and shall be grateful if the necessary action shall be taken.

The allocation is made subject to the following conditions:

That the allotee shall pay the rent involved

That the allotee will within one year commence and within two (2) years complete the building on the plot

That the Ofiri Stool reserves the right to re-enter the plot if any of the above conditions are not complied with and without the right by the allotee for expenses or compensation.

Yours Faithfully

(sgd.)

For and on behalf of the Ofiri Stool.

I accept the conditions

....Akua Nimo......

(ALLOTTEE)

THE SECRETARY

MAMPONG TRADITIONAL COUNCIL

PLOT ALLOCATION COMMITEE

MAMPONG/ASHANTI.

Exhibit D which is the application for a building plot predates exhibit C. In fact it is dated 30/05/2004.

It reads:

Dear Sir,

APPLICATION FOR A BUILDING PLOT

I wish to apply for a suitable building plot to develop a dwelling house to accommodate my family.

Please , i possess the necessary building materials in stock and will soon commence the project whenever the allocation is made.

I hope this my humble application will be considered and approved.

Yours Faithfully

for (sgd.)

AKUA NIMO

THE CARETAKER

OFIRI FAMILY LANDS

ADWEEHO, MAMPONG-ASH.

A question keeps lingering in my head. Are exhibits C and D authentic documents? How come the allocation letter predates the application for building plot? Is it a ploy to deceive the court? Again, Exhibit C was purportedly signed by Akua Nimo in ink on 28/05/2004. Yet, exhibit D was signed on her behalf by an unknown person who wrote ANimo However, the evidence on record shows that Akua Nimo was in Germany at the time of that transaction. These inconsistencies defy good reason!

As if that is not enough, the supposed lease presented by the 2^nd Defendant (the Lessee therein) in respect of the same land bears the date 24/09/2004. On these facts, it can be reasonably inferred that

about four months after the acquisition of the land in the name of Akua Nimo, the 2^nd who used to be in an amorous relationship with her also acquired the same land in his name and even got no less a person than Daasebre Osei Bonsu II, Omanhene of Mampong Traditional Area to endorse it! As to whether the land is State land or Stool land, that is not an issue before me at this time. In effect, the 2^nd Defendant’s exhibit 3 casts so much doubt on the Plaintiff's lawful attorney's testimony as well as the allocation letter.

These apart, Attakorah who described himself as the Plaintiff's lawful attorney indicated that Akua Nimo travelled to Germany and that she sent money to him for the purpose of purchasing land when she had been there for four years. By reasonable inference, this would have been about 16 years ago. Was the disputed land purchased 16 years ago? The answer is an obvious no! Granted that exhibit C is authentic, the allocation was made in the year 2004. From 2004 to 2015 when Attakorah gave evidence is a period of 11 years. So that if Akua Nimo sent money to Attakorah to purchase land for her when she had been in Germany for four years, it was probably not the disputed land. The remittances said to have been made from Akua Nimo to Kwaku Attakorah over the years were indeed capable of positive proof. Yet, not a single document evidencing any bank or wire transfer or receipt of funds was tendered. Kwaku Attakorah did not also say that he received only cash from the said Akua Nimo from the acquisition of the land and throughout the construction period. His oral evidence as regards monies sent to him by Akua Nimo is therefore unreliable. In that regard, documentary proof would have made his story more credible.

Another observation I have made is that exhibit C was not signed by any designated person as it is always done. Who is the allocating authority for and behalf of the Ofiri Stool? Is it the head of family? Chief? There is certainly a missing link which casts a shadow of doubt on the authenticity of exhibit C. It is also on record that the 2^nd has ever been the Chairman of the Mampong Stool Land Committee.

He made this admission when he was being cross-examined by counsel for the Plaintiff. On the totality of the evidence adduced, it is highly probable that by virtue of his association with the Mampong Stool Lands Committee, the 2^nd Defendant caused exhibit C to be prepared in furtherance of his ill motives.

This position is better appreciated when exhibits 3,4 and 5 are brought into the picture. In exhibit 5, the 2^nd Defendant executed the agreement for an overdraft of GSH 60,000.00 on 10/02/2011 and provided "Plot No. 18A Block E situate at Adweeho, Ashanti", as security. In further proof of his title, the 2^nd Defendant tendered a lease document (exhibit 3). The validity of the said lease is not an issue before me. Exhibit 3 was purportedly made on 24/09/20004. Between 2004 and 2010 when PW1 said she intended to travel is a period of six years. From the oral evidence of PW1 and the exhibit J series, her intended travel arrangements, particularly the visa issues, took place in the first half of the year 2010. Yet, she is inviting the court to find that ownership of the property was changed from her mother's name into the 2^nd Defendant's name merely for travelling purpose. It is instructive to note that PW1 witnessed exhibit 3 in the year 2004. In other words, the 2^nd Defendant signed the lease document in her presence six years before her intended travel. In all the supporting documents in respect of PW1's visa application and/or intended travel, the 2nd Defendant's name does not appear. Rather, it is one Asumadu-Aboagye E. who provided the financial support in the form of Statements of Accounts from his bankers as in exhibits J10 to J16. How then did the 2^nd defendant come into the picture? In sum, I find the story of PW1 that Akua Nimo agreed to transfer ownership of the disputed property to the 2^nd Defendant to enable him stand as a guarantor for her intended travel to Germany in 2010 as concocted. PW1 is merely using this fabricated story to blur the court's vision. But certainly, this court is able to see its way clear even behind this "smokescreen". PW1 who happens to be an employee of the 1^st Defendant Bank is not a credible witness. The Plaintiff who assumes several identities as and when she likes is also not a credible person. For instance, per the evidence on record, she has a marital name, a different name for travel purposes and yet another name for purposes such as the acquisition of property. In one moment, she styles herself as Adwoa Owusuaa and in another, as Akua Nimo. Exhibit 4 even worsens the case. It was written by the 2^nd Defendant and addressed to the former solicitors of the Plaintiff .The document is dated 1/11/2014. I will set it out in extenso:

REQUEST FOR STOPPAGE TO SELL MY PROPERTY REF: PROPERTY NUMBERED AS PLOT 18A BLOCK E SITUATED AT ADWEHO, ASHANTI MAMPONG, ASHANTI

With reference to the ATTACHEMNET OF IMMOVABLE PROPERTY dated 8th October, 2014 pertaining to the sale of my property specified above issued by the HIGH COURT/COMMERCIAL COURT, I the undersigned DEBTOR respectfully request for STOPPAGE pertaining to the sale of the property due to the below stated reasons, to enable me to settle the debt outright within the period agreed upon on the TERMS OF PAYMENT dated 17^th April, 2014:

MY VEHICLE golden dragon bus No. GM 3190- 12 which was in operation to assist me to effect the monthly installment payment of GH¢9, 573.00 in ten months to cover the total debt of GH¢ 97, 734.00 got involved in an accident on 24/06/2014 after the terms of payment was agreed upon.

I did notify my INSURANCE COMPANY- GLICO who also did agree to sort out my claims, of which the company later issued out OWN DAMAGE CLAIM LETTER dated 12/08/2014 pertaining to the settlement of the claims. Whilst I was awaiting to receive the claim as agreed upon after the thorough investigation conducted by the insurance company into the accident, the vehicle (IS UNDER COMPREHENSIVE) on the 2nd time involved in an accident on 4^th October, 2014 beyond repairs.

That, after notifying the insurance company, they executed all their investigations and demanded for a police report in respect of the accident, of which I have submitted the report to the insurance company awaiting for response, to enable me present all information relating to the accident to you.

That, I wholeheartedly hereby REQUEST you to kindly put a STOP of selling my stated property, and permit me a while to get the response from the insurance company, of which I am fully prepared to settle the entire debt before the agreed date thus 10^th April, 2015 without fail.

Your outfit reserves the right to sell the property in my failure to settle the entire debt before 10^th April, 2015.

I hope my request will be granted to enable me to settle the entire debt before 10^th April, 2015. I have attached herewith all relevant information for your study.

Thank You.

(sgd.)

Nana Kwesi Kodua

cc.

FIRST NATIONAL SAVINGS AND LOANS CO. LTD.

KUMASI, GHANA.

From the foregoing, I will not hesitate to say that the evidence adduced in support of the Plaintiff's claim of title leaves more questions than answers . I indicated i will revert to exhibit B, i.e. the site plan bearing the name Akua Nimo. Exhibit B was not endorsed by the Director of Surveys or his representative. It was not even signed by any licensed surveyor. In the absence of such endorsement, it 's probative value diminishes. In the case of Nortey (No 2) v African Institute Of Journalism And Communication & Others (No 2) (2013/2014) SCGLR 703 at 707 (holding 4), the Supreme Court affirmed the view of the Court of Appeal that a site plan tendered in evidence by the plaintiff in apparent proof of his claim of title to the disputed land was of no probative value because it was not signed by the Director of surveys or his representative, contrary to regulation 3(1) of the Survey ( Supervision and Approval of Plans) Regulations, 1989 ( LI 1444). Even though the site plan had already been admitted in evidence without objection, the court held that it could not constitute evidence for the purpose for which it had been tendered. Although the Plaintiff before me did not attach exhibit B to any documents presented for registration, I will not attach any weight to it as opposed to the 2^nd Defendant's site plan duly endorsed by a licensed surveyor.

Weighing all the evidence on record on the balance of probabilities, I find that the Plaintiff has failed to satisfactorily prove her title to the property described as Plot No. 18 A Block E, Adweeho, Ashanti Mampong which has been attached. I further find that the property sought to be attached is the bona fide property of the 2^nd Defendant and having failed to stop the execution process, the instant interpleader suit was initiated to further frustrate the Execution creditor ( 1^st  Defendant herein). The Plaintiff's claim has no merit. Judgment is entered in favour of the 1^st Defendant/Execution Creditor. The execution process can continue

I have taken into consideration the provisions on award of cost under order 74 of the High Court

(Civil Procedure Rules) ,2004 C.I. 47. If the 2nd Defendant had been candid enough, this interpleader Suit would have been avoided. I award cost of GH ¢5,000.00 each against the Plaintiff (Akua Nimo)

and the 2^nd Defendant, Nana Kwesi Kodua in favour of the 1^st Defendant, First National Savings & Loans Company Ltd which is now known as GN Bank.