IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
HARRIET OSEI BEMPOMAH - (Plaintiff)
NOBLE DREAM FINANCIAL SERVICES LIMITED AND AFIA ACHIAA & 2 ORS - (Defendants)
DATE: 16TH NOVEMBER, 2015
SUIT NO: RPC/117/14
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
NANA ASANTEWAA ATTAKORAH FOR PLAINTIFFS
KOFI QUARSHIE SAM FOR DEFENDANT
The instant interpleader application was filed by three claimants 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 ...
How did this come about? Judgment was entered against Noble Dream Financial Services Ltd in favour of Harriet Osei Bempomaa by the Commercial Court, Kumasi. As execution creditor, she sought leave to go into execution and subsequently caused the subject matter of this suit, property numbered Plot 18 A Amakom Brampouso , Kumasi to be attached.
On 29/12/2014, Afia Achiaa, John Agyekum and Philip Adade Acheampong instructed their solicitors to file a notice of claim under Order 44 rule 12(1) of C.I. 47. Upon service of the said notice on the execution creditor, she in turn caused her solicitors to file a notice to dispute the claim on 12/12/2014. Thereafter, the Registrar of this court brought an application under Order 44 rule 12(4) of CI 47 for an order calling upon the claimants to prove their claims. Pursuant to an order granted by this court on 12/02/2015, the claimants and the execution creditor appeared in court for the determination of the claimants ownership of the said property. The court gave directions making the
Claimants, Plaintiffs, and the execution creditor, the defendant. By virtue of Order 32 rule 7A of C.I. 47 as amended by CI 87, the parties were ordered to file their witness statements.
This is a civil action and so the rules regarding proof in civil suits apply, i.e. prove by the preponderance of probabilities. From the facts of this case, the Plaintiffs bear the onus of proof of ownership, having asserted ownership to the property in issue. See Zambrama v Segbedzi (1991) 2 GLR 221 CA ; Adwubeng v Domfeh (1996-97) SCGLR 660; Takoradi Flour Mills v Samir Faris (2005-2006) SCGLR 883; Yaa Kwesi v Arhin Davis ( 2007-2008) SCGLR 580; and Continental Plastics v IMC Industries- Technik GMBH ( 2009) SCGLR 298 at 307.
The 1st Plaintiff gave evidence on her behalf and on behalf of the 2nd Plaintiff , and the 3rd Plaintiff also testified. All the evidence given by the Plaintiffs fall in line and it is as follows: The property in issue was first acquired by one Kwadwo Nsiah as per a lease exhibited to the application. After his demise, Letters of Administration were given to F.K. Agyekum and Kwabena Awuah (both deceased).The 3rd Plaintiff, Philip Adade Acheampong is the customary successor of the last administrator of the estate of Kwadwo Nsiah i.e. Kwabena Awuah. The 1st and 2nd Plaintiffs are the wife and son respectively of the late Kwabena Awuah. Kwabena Awuah shared rooms in the said house among family members, including the 1st Plaintiff who has lived there all her life.
The 3rd Plaintiff was granted Letters of Administration in respect of the estate of Kwabena Awuah and the family agreed that he takes care of the property in dispute. During the lifetime of Kwadwo Nsiah, he put up a mud house on a portion of the land in dispute. After his demise, the 3rd Plaintiff's brother put up six stores on a portion of the vacant land in front of the mud house. The 3rd Plaintiff, with the consent of the family of Kwadwo Nsiah, authorized one Oppong Kyekyeku to negotiate with and enter into an agreement with Noble Dream Financial Services Ltd in respect of a portion of the property in issue. Subsequent agreements were also executed between Noble Dream, and the said Oppong Kyekyeku. All the Plaintiffs admitted during cross-examination that they are fully aware of the agreement between their family and Noble Dream.
Seth Oppong Kyekyeku who was authorized to enter into the agreement with Noble Dream testified as PW1 and tendered copies of the agreements with Noble Dream in evidence as exhibits B,C and D. The following piece of evidence pertaining to the agreements are very crucial to the determination of the issue and are set out below:
We agreed to rent out the land covering four stores to Noble Dream. We further agreed that they build a two storey building on the land which we had rented to them and also a two storey building to cover the land housing the two remaining stores for the family. we rented it to them for thirty-five (35) years. They agreed to compensate us in the sum of Ten Thousand Ghana Cedis ( GH¢ 10,000.00) for the cost of the stores the family had already built on the land.
Continuing, PW1 said Noble Dream approached them and a subsequent agreement was executed whereby the latter constructed the second floor of the storey building they had put up for the Plaintiffs on the portion of the land which previously housed two of the original six stores. This agreement is exhibit C. Subsequent to this, Noble Dream rented the first floor of the storey building they had put up for the Plaintiffs and paid GH¢ 126,000.00 as evidenced by exhibit D. According to PW1, the family also gave their ground floor to Noble Dream on condition that it built two rooms on a portion of the land but it never did. His evidence was corroborated by PW2, also a family member.
At this point, the evidential burden shifted onto the Defendant to lead evidence to discredit that of the plaintiffs and their witnesses. The most relevant part of her evidence is as follows:
In respect of House No. Plot 18, Block 'A', Amakom Bramponso, my diligent enquiries and investigations revealed that Noble Dream executed a tenancy agreement dated 28/06/2011 with the owners of the house for a period of 35 years... Noble dream still has an interest in the property because the 35 years has not expired. The Plaintiffs are not entitled to recover the property from Noble Dream.
Having obtained a judgment against Noble Dream Financial Service Ltd, it is the Defendant's evidence that the interest of Noble dream in this property can be attached in satisfaction of the outstanding balance of the judgment debt.
After both parties have given their respective testimonies, it is the duty of the court to closely examine all the evidence and weigh the same by the preponderance of probabilities to find the party whose case is deserving of a favourable verdict. The Supreme Court so held in Takoradi flour Mills v Samir Faris (2005-2006) SCGLR 882 at 884 where the court held as follows (holding 5):
It is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Decree, 1975 ( NRCD 323). 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
From the totality of the evidence adduced by, and on behalf of the Plaintiffs, including the exhibits tendered, the following findings of fact can be made: that Kwadwo Nsiah died intestate; in his life time, he acquired the plot numbered 18 Block 'A', Amakom Bramponso; he put up a mud house on the said land and left a vacant part, Plot number18 Block 'A', Amakom Bramponso formed part of his estate upon his death intestate; rooms in the original mud house were distributed among his family members by late Kwabena Awuah as one of the administrators of his estate; the 1st and 2nd Plaintiffs as the wife and son of the late Kwabena Awuah have a beneficial interest in the said estate; there is a valid agreement between Noble Dream Financial Services Ltd and Representatives of the Beneficial Owners of this property, for and on behalf of the family of the Defendants, for a period of 35 years; other agreements are in force in respect of a portion of the newly constructed storey building which was given to the Plaintiff's family and the mud house originally put up Kwadwo Nsiah; the latter agreements were executed by Oppong Kyekyeku, having been permitted to do so by the 3rd Plaintiff.
What then are the terms of these agreements? Just a word of caution! These agreements were not professionally prepared. However, the true intention of the parties can be inferred, notwithstanding the form of the agreements. They are as follows:
TENANCY AGREEMENT (EXHIBIT B).
This is to certify that the undersigned/marked Madam Afia Nsiah and Yaw Asamoah for and on behalf of Asona Family and agree as the Land Lord and Mr Adomako Cliford for and on behalf of Noble Dream Financial Service of Box 47, Agona as Tenant on the other side: offered a land to the Tenant to construct Banking hall premises and stores at a place commonly known and called Amakom Brapomsom near Anloga junction, Kumasi on the following conditions:
That the tenant is to construct a two storey building as follows:
(a) 2 store rooms on the ground floor and the 1st floor and the rest of the portion as banking hall premises for the bank.
(b) At the last floor, the Tenant would build a big hall for the family and the rest of the portion for the banking hall.
The tenant is to give GH¢10,000.00 to the landlord as compensation.
The tenant is to use the said facility for a period of 35 years, starting from the date the project is completed.
After the expiration of the 35 years, the family shall take possession of the whole premises and then start to rent to tenants.
That after the expiration of the 35 years and the tenant is not interested in renting the premises, no compensation should be given.
None of the parties can withdraw from the said agreement before the end of 35 years.
That both parties have consented to the above conditions on their own accord.
DATED AT MAMPONTEN THIS 28TH DAY OF JUNE, 2011.
(Sgd. madam Afia Nsiah) (Sgd. Yaw Asamoah)
(1st Land Lady) (2nd Land Lord)
Pastor Seth Oppong Kyekyeku Ama Werukoa
AGREEMENT (EXHIBIT C)
This agreement is signed this 23rd day of October, 2012 in the year of our Lord between Mr. Seth Oppong Kyekyeku (landlord) of house number, NAM 18A, Amakom- Kumasi and Noble Dream Investments Ltd.
That I, Mr. Seth Oppong Kyekyeku, have agreed to rent a room situated at Amakom with house number NAM 18A Amakom-Kumasi to Messrs Noble Dream Investment Limited at a total cost of GH¢ 15,000.00 for the period of thirty five (35) years commencing on 1st January, 2013.....
TENANCY AGREEMENT (EXHIBIT D)
This is to certify that an Agreement is hereby entered whereby the landlord, Seth Oppong Kyekyeku of House No. ,A,M, 18 A Amakom Bramponso, Kumasi have given two store rooms in the above house to Noble Dream Micro Finance Ltd, P.O. Box 47 Agona -Ashanti for a period of 35 years.
That an amount of GH¢126,000.00 (One hundred and twenty six thousand Ghana Cedis) has been paid by the Noble Dream Micro Finance Ltd to cover for the years mentioned above.
That the starting date of commencement shall be 1st January, 2013.
That under no circumstances shall any member of the landlord interfere with the negotiation of this agreement.
That the landlord shall have no power to collect back the store rooms if the period has not elapsed.
That both parties have agreed accordingly.
DATED AT KUMASI THIS 1ST JANUARY, 2013
(Sgd. Seth Oppong Kyekyeku) (Sgd. C.E.O. Noble Dream Micro Finance)
(Sgd)Yaw Asamoah (Sgd) Isaac Oppong.
(RTP ) Amma Wirekoa
It is to be noted that per exhibits B, C and D, three companies have agreements with the beneficial owners and / or their representative , the Land Lord/Lady of Plot 18, Amakom in respect of a part of the land which excludes the mud house. These companies are: (i) Noble Dream Financial Services;
Noble Dream Investments Ltd and (iii) Noble Dream Micro Finance Ltd. Though housed in the same building, these companies have separate legal existence. No evidence has been adduced as to whether Noble Dream Micro Finance Ltd and Noble Dream Investments Ltd are owned by Noble Dream Financial Services Ltd as the sole shareholder. No evidence of fraud or the like has also been adduced to merit the piercing of the veil of incorporation. For now, they are to be considered as three separate legal entities.
The Defendant obtained judgment against Noble Dream Financial Services . In that light, she cannot go into execution against the interest of other Companies i.e. Noble Dream Micro Finance Ltd and Noble Dream Investments Ltd. She will be limited to the interest of Noble Dream Financial services Ltd as contained in exhibit B.
Flowing from the above, the court concludes that the Plaintiffs have proved their ownership, and /or interest in the disputed property. However, whatever interest they have is subject to the 35 year agreements between their family and the respective tenants. The Plaintiffs and their family are thus bound by these subsisting agreements.
Per exhibit B, the only interest which the Plaintiff's family has before the expiration of the 35 years is the "hall constructed for the family" on the 2nd floor, and it appears this has also been let out to one of the Noble Dream Companies, different from the Defendant judgment debtor herein. That apart, the execution process can proceed against the interest of Noble Dream Financial Services Ltd in respect of the portion of the property covered by exhibit B.
It is to be stressed that only the 35-years interest of Noble Dream Financial Services in exhibit B is to be attached. Therefore, the property cannot be sold by the Defendant (execution creditor). At best, she can take rent from the said portion of the property upon attachment, until the judgment debt is fully liquidated. Noble Dream Financial Services Ltd can neither use the premises covered by exhibit B for its business nor take rent from this property for its use until the judgment debt is fully paid.
In order to do substantial justice, the Regional Valuer of the Land Valuation Division of the Lands Commission, Ashanti Region, is hereby appointed to estimate the annual commercial rent of this property and make projections up to June, 2046, taking into consideration the rate of inflation. The parties to the interpleader suit are to bear the expenses equally. Thereafter, Defendant (execution creditor) may rent out the property so described at the commercial rent determined by the valuer and use the proceeds to satisfy the outstanding balance of the judgment debt. A copy of the valuation report is to be filed at the registry of this court within a reasonable time. This valuation is to ensure that the execution creditor does not take more than what is due her when the property is let out. If the judgment debt, together with the post judgment interest, is fully liquidated before the expiration of 35 years, the interest of Noble Dream Financial Services Ltd shall revert to the said Company. However, if there is any balance outstanding after the 35 years, the execution creditor cannot continue to take rent from the property because Noble Dream's interest would have terminated, and the property will revert to the Plaintiffs herein.
Judgment entered for the Defendant on the above terms. The execution process is to continue on the terms stated in this judgment. The parties are to bear their own costs.