KOFI OWUSU vs. BET EXPORT GHANA LTD. & ALBERT KOBINA KOOMSON
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (COMMERCIAL DIVISION)
    ACCRA - A.D 2015
KOFI OWUSU - (Plaintiff)
BET EXPORT GHANA LTD. AND ALBERT KOBINA KOOMSON - (Defendant)

DATE:  23RD OCTOBER, 2015
SUIT NO:  RPC 387/2007
JUDGES:  SAMUEL K. A. ASIEDU, JUSTICE OF THE HIGH COURT
LAWYERS:  MR. DANIEL ARTHUR FOR CLAIMANT
MR. SAMUEL CUDJOE FOR DEFENDANT
JUDGMENT

On the 8th day of September 2009, Kofi Owusu, the plaintiff in this matter, caused a writ of summons to issue against the defendant herein, Bet Exports (Gh) Ltd. The defendant filed a statement of defence in which it also made a counterclaim against the plaintiff.

 

Before the hearing of the matter, precisely, on the 25th day of November 2009, the defendant obtained an order for the interim preservation of “Next Door Hotel situate at Ekumfi Swedru on the Mankesim Accra Road, Next Door Drinking Spot situate near Royal Palace Hotel, Next Door Cold Store situate near Royal Palace Hotel, Unnumbered House situate at Mankesim and KIA Trade Vehicle with registration number GE 7820 Z. These properties were said to be owned by the plaintiff. The interim order was to remain in force for a period of ten days.

 

It appears that the order for interim preservation granted on the 25th November 2009 was modified and expanded to cover an unnumbered house situate at Asene near Saviour Church. This happened on the 2nd day of February 2010 when the court granted an order for the preservation of the said properties pending the determination of the case.

 

After the hearing of the case, the court dismissed the plaintiff’s claim and entered judgment for the defendant on its counterclaim. The defendant then sought to go into execution in order to realize the fruits of its victory. It therefore attached certain properties, purportedly, belonging to the plaintiff including a building which, for the meantime, is being run as a Guest House.

 

It is instructive to remark that by his application for a writ of fieri facias filed on the 19th June 2014, counsel instructed the Sheriff to attach “All immovable property belonging to the plaintiff”. The court is of the view that this instruction given by counsel is very vague and ambiguous and that counsel should have gone ahead to specify the very immovable properties of the plaintiff which he desires the Sheriff to attach in execution in order to dispel all doubts about the nature of the properties to be attached.

 

After the attachment, the claimant, Albert Kobina Koomson, filed a Notice of Claim on the 11th September 2014 stating that he claims ownership, by way of purchase, of the piece and parcel of land with buildings thereon, situate, lying and being at Pompomu Akwakrom via Mankesim. The defendant judgment creditor disputed the claim of the claimant and after an initial ruling by the court in respect of submission made by counsel, the court set down for hearing the claims of the parties to the attached property.

 

The claimant gave evidence at the trial and called two witnesses to close his case. The defendant judgment creditor gave evidence through its representative Tom Kwarteng Amaning and announced the closure of its case.

 

From the evidence on record, it is not in dispute and the court finds as a fact that the property in question originally belong to the plaintiff Kofi Owusu. The court again finds as a fact that currently, the property in question is run as a Hotel or a Guest House. Further, the court finds that on the 7th day of June 2011, Kofi Owusu, the plaintiff in this matter, agreed to sell and the claimant also agreed to purchase “the land and the buildings and structures thereon situate, lying and being at Pompomu Akwakrom via Mankesim. The said agreement between Kofi Owusu and the claimant was reduced into writing and received in evidence as exhibit 1 bearing stamp and numbered LVD/CR/NL. 312B/2015.

 

The court finds that Albert Kobina Koomson paid for the purchase of the property sold to him by issuing two cheques for that purpose. First, a Ghana Commercial Bank cheque, exhibit ‘4A’ to UT Bank for the sum of GH110,928.51 and secondly, a Zenith Bank (Ghana) Limited cheque, exhibit ‘4’ to Kofi Owusu for the sum of GH20,000.

 

The court finds from the evidence on record that Kofi Owusu had taken a loan from UT Bank and had used the said property as security; so, it became necessary for the claimant to pay part of the purchase price directly to UT Bank in order to secure the release of the document, exhibit 3 herein, covering the property.

 

The crucial issues for determination of the court are the identity of the property in dispute and also whether, the sale of the property to Albert Kobina Koomson, the claimant herein, was valid in the face of the order of the court preserving the property until the final determination of this case. These are so because whereas the claimant maintains that the property he purchased is situate at Pompomu Akwakrom near Mankesim and for that matter it is not the subject of the preservation order, the defendant judgment creditor says that the property is situate at Ekumfi Swedru and that it is the subject of the preservation order made by the court.

 

From the evidence on record the court finds that the name of the place where the property in dispute is situate is Pompomu Akwakrom and not Ekumfi Swedru as contended by the defendant judgment creditor. This finding is supported by exhibit ‘3’ the original lease made on the property between the grantors of the land and Kofi Owusu. This exhibit, tendered in evidence by the claimant, was not challenged by the defendant creditor and the court finds that the original owners of the land have described their town as Pompomu, Ekumfi Akwakrom. In the absence of credible evidence to the contrary, the defendant judgment creditor is bound by the content of exhibit 3. The oral testimony of the claimant and his witnesses support this finding of fact.

 

The next issue which the court wishes to examine is whether the property in question is part of the properties preserved by the court. The evidence and the records generally before the court leave one in no doubt as to the property in dispute. The Notice of claim filed on the 11th September 2014, describes the property which was attached and which the claimant claims to be his. It states, among others, that

 

“PLEASE TAKE NOTICE that the piece or parcel of land and the buildings and structures thereon situate, being and lying at Pompomu Akwakrom via Mankesim which has been attached by the defendant/judgment/creditor in satisfaction of the judgment debt in the above cause or matter is the bona fide property of ALBERT KOBINA KOOMSON (claimant herein) by purchase and that let nothing be done on same without notice to him”

 

It is clear from the deed of lease between Ebusuapanyin Kweku Eduafo and Kofi Owusu, the plaintiff in this matter, that the property described in this deed of lease, exhibit 3, is the property that was leased to Kofi Owusu. It is also clear from exhibit 1 that the land described in exhibit 3 is what was sold to the claimant together with all the buildings and structures thereon. There is no doubt that it is the land and the buildings situate on the land that forms the subject of attachment and the subject of the claim/dispute before this court.

 

The order for preservation obtained by the defendant in this matter on the 2nd of February 2010 also states that

 

“It is hereby ordered that the building housing Next Door Hotel situate at Ekumfi Swedru on the Mankesim road, the building housing Next Door Drinking Spot situate near Royal Palace Hotel, the building housing Next Door Cold store situate near Royal Palace Hotel, Unnumbered house situate at Mankesim, unnumbered house at Asene near Saviour’s church and KIA Trade vehicle registration number GE 7820 Z be preserved pending the final determination of the suit.”

 

It is the opinion of the court that without difficulty one could easily say that the property attached and which is described in the notice of claim is not part of the properties which formed the subject of the preservation order obtained by the defendant on the 2nd February 2010. For, whereas the subject of the preservation order, as far as is relevant to the dispute before this court is “the building housing Next Door Hotel situate at Ekumfi Swedru on the Mankesim road”, the subject matter of the attachment and the subject matter in dispute is that “piece or parcel of land and the buildings and structures thereon situate, being and lying at Pompomu Akwakrom via Mankesim.” Clearly, the two properties described above are not the same and therefore it is wrongful, in the opinion of the court, for the defendant/judgment creditor to attach the property subject matter of this dispute in execution of the judgment he obtained against Kofi Owusu under the guise of same being the subject of the preservation order entered in his favour.

 

A close scrutiny of the evidence on record reveals that at the time the defendant obtained the preservation order, there was not in existence any hotel by name Next Door Hotel. In his evidence in chief, the representative of the defendant, Tom Kwarteng Amaning testified as follows

 

“I came into contact with Kofi Owusu in 2007….Sometime in 2008; he told me he was building a hotel at Ekumfi Swedru either in Mankesim or near Mankesim. He took me to that site where the project was in progress. He told me the name of the hotel was going to be Next Door Hotel….But when the hotel was commissioned in 2010 by him; he named it Vocanga Africana Hotel….”

 

It must be stressed that the order of preservation was specific. The order preserved

 

The building housing Next Door Hotel situate at Ekumfi Swedru on the Mankesim road.”

 

From the evidence on record therefore, it is clear that Kofi Owusu never owned a hotel called Next Door Hotel whose building could have been preserved. Indeed, no hotel owned by Kofi Owusu near Mankesim, ever existed called Next Door Hotel. The defendant can therefore not attach, in execution of his judgment, the buildings and structures owned by the claimant in which the claimant operates a hotel named Nabert Royal Hotel.

 

Assuming however that the subject matter of the preservation order is the same as the subject matter of attachment then the question which crops up for determination is whether the sale of the property attached to the claimant is unlawful and therefore null and void.

 

On this issue, the court finds from the record that there is no evidence whatsoever to show that the claimant Albert Kobina Koomson had fore knowledge of the preservation order before he bought the subject matter in dispute from Kofi Owusu. The defendant’s representative testified to the effect that he was not in the position to say that the claimant was aware of any pending suit between himself and Kofi Owusu. The court finds from the evidence on record that the claimant was not aware that the property subject matter of the attachment had been the subject matter of any order of preservation from the court. Hence the conscience of the claimant was not in any way tainted by the fraud committed by Kofi Owusu even if the property in question was affected by the preservation order obtained against Kofi Owusu.

 

The evidence on record shows that first there was an order for interim preservation made by the court on the 25th November 2009. This interim order was obtained ex parte and was made to have operative force for a period of ten days. In respect of this interim order, Tom Kwarteng Amaning testified that the order was served on Kofi Owusu at Mankesim by the bailiff of the court but then the bailiff refused to post copies on the building since he the bailiff was not ordered by the court to carry out a substituted service of the order. There is no positive evidence on record to the effect that the interim order was actually posted on the building.

 

An order for preservation was finally obtained on notice to Kofi Owusu. This order was made on the 2nd February 2010. This order which was obtained on notice was neither served on Kofi Owusu nor posted on the building the subject matter of that order and the defendant’s reason for not serving the order or posting copies on the building was that his lawyer told him that “the attorney was at the court and that there was no need for the service”. The court is therefore satisfied that at the time that the claimant entered into negotiations and bought the attached property from Kofi Owusu, the claimant was not aware of any court order preserving the property and prohibiting Kofi Owusu from disposing it off.

 

There is no doubt that Kofi Owusu was aware of the preservation order. However, Kofi Owusu’s knowledge of the order cannot be imputed to the claimant. There must be cogent evidence that the claimant was also aware of this order before he purchased the property. The contrary is the case. That is, the evidence rather shows that the claimant was not aware. Hence the conscience of the claimant was not tainted by the fraud perpetrated by Kofi Owusu. Equity acts on the conscience.

 

In the view of the court the claimant innocently acquired the subject matter of the attachment unaware of any court’s order prohibiting its sale. In other words, the claimant is a bona fide purchaser for value without notice of any fraud or any encumbrance on the property. According to Kludze, “the rule is that a bona fide purchaser for valuable consideration who obtains a legal estate at the time of his purchase without notice of a prior equitable right is entitled to priority in equity as at law. The rational of the rule is that the purchaser’s conscience is not in any way affected by the equitable right of which he has no notice. Equity acts on the conscience”. See Modern Principles of Equity by A K P Kludze, published by Foris Publications Holland (1988), page 36.

 

In Appolo Cinemas Estates (Gh) Ltd vs. Chief Registrar of Lands [2003-2005] 1 GLR 167 the court explained the circumstances under which the plea will be available to a party. The court held that

 

“The plea of bona fide purchaser for value without notice was an absolute, unqualified and unanswerable defence against the claims of any prior equitable owner. However, in order for the plea to be successfully invoked, the party relying on it had to prove that he had: (a) acted in good faith; (b) paid consideration in money; (c) the legal estate properly vested in him; and (d) no notice, actual or constructive of other encumbrances on the property.”

 

Again in Donkor vs. Wih [1989-1990] 1 GLR 178 the court of Appeal again noted that

 

“to be qualified as the purchaser of the legal estate the purchaser must show that he had acquired some legal estate in the land and not a mere equitable interest. The requirement was satisfied if the purchaser of an equitable interest without notice of other equities subsequently acquired a legal estate or if he acquired a better right to the legal estate than a prior equitable encumbrance.”

 

In the instant matter, as already pointed out, the claimant purchased the attached property from Kofi Owusu by paying cash the sum of GH110,928.51 and GH20,000 in respect thereof as shown by exhibits 4A and 4 respectively. Again there is ample evidence on record to the effect that at the time of acquiring the property the claimant had not the faintest knowledge of the order for preservation of the property subject matter of that order. In the opinion of the court therefore the attachment of the property acquired by the complainant by the defendant is wrongful and ought to therefore be set aside which the court hereby do.

 

In the circumstances judgment is entered for the claimant and an order is hereby made releasing the attached property from attachment.