IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2019
ERIC OPOKU - (Plaintiff/Applicant)
STANDARD SECURITIES LTD (KUMASI BRANCH, AHODWO) - (Defendant/Respondent)
AFRICAN SUPPORT NETWORK - (Claimant)
DATE: 6TH MAY, 2019
SUIT NO: INTS 02/2019
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
LAWYERS: ISAAC RIVERSON 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 Order 44 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 judgment creditor herein obtained judgment against the defendants/judgment debtors herein and proceeded to attach certain properties including uncompleted two (2) bedroom semidetached houses numbered IPC3, IPC8, IPC19, IBC14, IBC15, 4BC4, 4BC5, 4BC2 and 4BC3 situate and lying within an estate development described as Greenfield Estates, Katamanso, in the Greater Accra Region of the Ghana. On 15/08/2018, the claimant herein 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 judgment creditor, and on 24/08/11 the execution creditor, acting per his solicitor, filed a notice to dispute the claim. The Registrar/Deputy Sheriff served the order for the claimant to appear on 14/11/2018. On 30/11/2018 the claimants, acting per Prince Sarpong, filed an affidavit of interest in accordance with the rules of the court setting out the basis of their claim as follows:
1. That I am the deponent herein and the Managing Director of African Support Network, the Claimant herein.
2. That I have the authority and consent of the Claimant Company herein to depose to the facts in this affidavit, which facts are within my personal knowledge and belief, unless otherwise stated.
3. That the Claimant Company is the beneficial owner of uncompleted two (2) bedroom semidetached houses numbered IPC3, IPC8, IPC19, IBC14, IBC15, 4BC4, 4BC5, 4BC2 and 4BC3 situate and lying within an estate development described as Greenfield Estates, Katamanso, in the Greater Accra Region of the Republic of Ghana and forms part of a larger land portion registered in the name of the Claimant (hereinafter referred to as the “Property”).
4. That per an indenture dated 3rd April, 2013 (“the Indenture”) made between the OKLEY FAMILY (the “Family”) acting through its Joint Heads, SETH OUT OKLEY and HUMPHREY OUT OKLEY on the one part and AFRICAN SUPPORT NETWORK (“the Claimant”) actin through its Managing Director, Prince Sarpong, the said Property was leased to the Claimant.
A copy of the Indenture is attached hereto and marked as Exhibit “PS1”.
5. That subsequent to the grant of the lease to the claimant, the Property was registered in the name of the Claimant at the Land Title Registry and the Claimant was subsequently issued with a Land Title Certificate Numbered TD.8521 dated 16th October, 2013.
A copy of the Land Title Certificate is attached and marked as Exhibit “PS2”.
6. That the Claimant, in or about the year 2013, began putting up residential houses (Greenfield Estates) on the property and this includes IPC3, IPC8, IPC19, IBC14, IBC15, 4BC4, 4BC5, 4BC2 and 4BC3 that have been attached by the Plaintiff Judgment Creditor in the instant suit.
7. That construction of the said houses were authorized by the relevant Municipal Assembly which issued out a valid Building Permit to the Claimant for that purpose.
A copy of the Building Permit is hereby attached and marked as Exhibit “PS3”.
8. That the Defendant Judgment Debtor is not, and has never been owner of the said houses that have been attached by the Deputy Sheriff.
9. That the preceding depositions establishing the ownership of the Property and the Houses contained notwithstanding, my attention has been drawn to the attachment of the Houses by the Deputy Sheriff following Judgment entered in favour of the Plaintiff/Judgment-Creditor herein and against the Defendant.
10. That the attached by the Deputy Sheriff are the bona fide properties of the Claimant and not that of the Defendant.
11. That in the circumstance the Housed are unavailable for the purpose of any attachment as purportedly undertaken by the Deputy Sheriff in execution of the judgment-debt.
12. WHEREFORE I swear to this affidavit in good faith.
When the trial commenced, the Claimant testified through Prince Sarpong, the director of the Claimant Company. He based his testimony largely on the depositions contained in the affidavit of interest. Mr. Sarpong in his evidence testified that he was once a director of the defendant/judgment debtor until 2016 and he is no longer in that employment. He further stated that, in and around 2012, African Support Network approached the Okley Family to grant them land to build estate and same was granted and leased to them. The said lease was admitted in evidence subject to the production of the original and marked as exhibit K.
Thereafter, the Claimant registered the lease at the Land Title Registry and obtained the Land Title Certificate which was tendered and marked as Exhibit B. Mr. Sarpong tendered in evidence building permit, receipts and other documents relating to the permit, which were obtained from the Municipal Assembly. The building permit, receipts and other documents relating to the permit were admitted, subject to the production of the originals, and marked Exhibits C and C1 to C12.
The Claimant’s representative ended his evidence by stating that, after receiving all the permits they started building the houses in question, among others. He therefore contends that the properties, which are the subject matter of this suit belong to the claimant and not the defendant/judgment debtor.
The Plaintiff/Judgment Creditor failed to appear in court to participate in the trial in spite of the fact that hearing notices were served on him.
The Relevant Law
In interpleader proceedings 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.”
The plaintiff judgment/creditor failed or refused to participate in the trial. However, once there is a full trial the legal burden of proof is not dispensed with in spite of the implied admission by the plaintiff/judgment creditor for failing to contest the matter. In the instant case, the claimant continued to bear the burden proof in respect of the claim.
It is also apparent that the Claimant bears the evidential burden to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. 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. The Claimant led documentary evidence in the nature of Indenture, Land Title Certificate, Building Permit – all of which bear the Claimant’s name – to show that the properties in dispute belong to them. I find it reasonable to say that they have successfully discharged the evidential burden placed on them by law.
The case of Takoradi Flour Mills v. Samir Faris (2005/2006) SCGLR 882 at 900 requires that in assessing the balance of probabilities, all the evidence 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 only evidence on record in respect of this suit is that of the Claimant and I find it probable enough to warrant the tilt of the balance in its favour.
The result is that the interpleader action succeeds. It is therefore ordered that the execution process in respect of uncompleted two (2) bedroom semidetached houses numbered IPC3, IPC8, IPC19, IBC14, IBC15, 4BC4, 4BC5, 4BC2 and 4BC3 situate and lying within an estate development described as Greenfield Estates, Katamanso, in the Greater Accra Region shall cease.
There will be no order as to costs.
DR. RICHMOND OSEI-HWERE
JUSTICE OF THE HIGH COURT