IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
MR. PETER OSEI AFRIYIE - (Plaintiff)
PASTOR OSEI AGYEMANG AND JANET OSEI AGYEMANG - (Defendant)
DATE: 10TH FEBRUARY, 2015
SUIT NO: INTS/13/12
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
KWAME ANTWI AFRIYIE FOR PLAINTIFF
KWABENA POKU MENSAH FOR DEFENDANT
The Defendants herein are the execution creditors in suit number OCC/52/2010 where they obtained judgment against one Pastor Osei Agyemang. The said Pastor Osei Agyemang is the husband of the Plaintiff (Claimant) in the instant interpleader proceedings.
Following the failure of Pastor Osei Agyemang to pay the judgment debt, the property in issue, House Number Plot 1 Block 6 A Asuoyeboah, Kumasi was attached by the Deputy Sheriff. The Plaintiff claimed ownership of this house and gave notice to the Registrar of this court on 16/03/2012.
The Registrar in turn caused a Notice to Dispute Claim to be served on the Defendants. On 20/06/2013, the court granted an ex-parte application filed by the registrar calling on the parties to appear in court for the determination of the claimant’s claim. That is, whether or not She is the owner of the property in dispute.
At the trial, the Plaintiff led evidence to the effect that she contributed financially to the acquisition of this property. According to her, Pastor Osei Agyemang, whom she has been married to since the year 1980, was awarded a Government contract to construct stores and stalls. For this project, the Plaintiff told the court that her husband requested her to supply sand so that they could use the profit for an investment. Thus, the disputed property was acquired in the year 1998. Aside this financial contribution towards the construction of the disputed house, the Plaintiff testified that Pastor Osei Agyemang sold two of the four houses which were acquired in the course of their marriage, but gifted the disputed one to her and their children, namely Maxwell Osei Agyemang, aged 32 and Christabel Osei Agyeman, aged 12. It is also her evidence that she has lived in this house with her husband and children for the past ten years. In cross-examination, the Plaintiff admitted that she was aware of the attachment of movable property from this house but her husband agreed that those items be taken away and that he would replace them. However, she denied any knowledge of the fact that her husband has mortgaged this property by a mortgage dated 17/09/2009 as per the search results from the Lands Commission, Kumasi. She told the court that her husband has petitioned for divorce. She tendered a copy of the divorce petition and the notice served on her to enter appearance as exhibit B.
To corroborate her evidence of customary gift of the disputed house, the Plaintiff’s brother gave evidence to the effect that Pastor Osei Agyeman informed their family that he had gifted this house to the Plaintiff. In the year 2001, PW1 said aseda was presented to Pastor Osei Agyeman. The items included a sheep, yams and condiments and that he personally presented the items. He mentioned one Nana Kwame (Pastor Osei Agyeman’s brother), Church members of the pastor as well as Nana Dabanka (now deceased) as some of the people present.
In cross-examination, PW1 admitted that Pastor Osei Agyeman has put tenants in the disputed house but would not know whether the Plaintiff was part of these agreements. In a lengthy cross-examination, Counsel for the Defendants sought to discredit PW1’s evidence on the customary gift but PW1 maintained his position that the property was indeed gifted to his sister and Aseda was duly presented.
As regards the mortgage of the house, PW1 said he had no knowledge of it. However, counsel suggested to him that this mortgage was executed seven years after the alleged customary gift and that the documentation covering the property is in the name of the Bank.
After the Plaintiff had closed her case, Counsel for the Defendants requested for, and was granted several adjournments for the Defendants to state their case. He told the court that his only witness will be an officer from the Lands Commission. A subpoena was duly served on the Lands Commission but they gave one excuse after the other and neglected to come to court to testify. After a series of adjournments, the court had no alternative than to close the Defendant’s case. A date was set for addresses to be filed and for judgment to be delivered. As of the time of writing this judgment, none of the lawyers had field their respective addresses. I will therefore proceed without having the benefit of the written submissions.
First, I will consider the question of gift. The line of cross-examination adopted by counsel for the Defendants seems to suggest that there was no such gift because of the absence of family members of the donor at the ceremony where aseda was presented. And, if the property had actually been gifted to the Plaintiff, her husband would not have used it as a security without reference to her. The decision in Bonney v Bonney (1992-93) 2 GBR 779 is relevant. The Supreme Court held (holding 1) thus:
“The consent of the members of, or witnesses from, the donor’s family was no longer necessary for a valid gift inter vivos of self-acquired property; neither did the continued enjoyment by the donor of the property so gifted detract from the validity of the gift.”
The property in issue is a self acquired property. Even though it would have been desirable to notify as many members of family, failure to do so would not invalidate the gift. The incidents of a customary gift include the acceptance of the gift and acknowledgment of the same by the timely presentation of the customary “aseda”. The Aseda is usually a customary drink or a sheep. See Ofori Atta v Duodu (1982-83) GLR 1094 and Anaman v Eyeduwa (1978) GLR 114, CA. Once the aseda has been presented, the gift is irrevocable except in gifts between parent and child. See Sese v Sese (1984-86) 2 GLR 166. In Ofori Atta’s case, referred to supra, the court held:
“The fact that a gift was made in the presence of witnesses and that the aseda was paid was sufficient to prove the validity of a gift inter vivos.”
In the instant case, the evidence shows that after the gift, the Plaintiff and her nuclear family continued to live in a portion of this house even though Pastor Osei Agyemang had rented out some rooms to tenants.
The customary aseda was also presented in the form of a sheep and other items. Having observed the Plaintiff and PW1 in court and having considered the substance of their testimony, I have no reason to doubt their credibility. I accept the Plaintiffs version of the story that her husband customarily gifted this house to her and the children of their marriage over a decade ago. I must add that the Plaintiff’s husband would have been a vital witness for the Plaintiff but in view of the pending divorce proceedings as per exhibit B, it was obvious that such a witness would not come to testify.
That notwithstanding, the Plaintiff concedes that Legal title is still vested in her husband because he failed to convey the same to her. In her own words, her husband promised to change the papers into her name but never did so. Under the circumstance, Pastor Osei Agyeman can be described as a trustee of the said house for the benefit of the Plaintiff and her children.
Even if the property was not gifted to the Plaintiff, per her evidence in court, she still has an interest therein having contributed financially to its acquisition. Equity is equality and it will be unfair for a woman who has toiled with her husband to put up a matrimonial home to be deprived of any interest in the property.
The issue of mortgage was raised by the Defendants’ lawyer in cross-examination. Apart from merely denying the existence of the mortgage, the Plaintiff could not positively discredit the same. On the totality of the evidence on record, I find that the property in issue is the subject matter of a mortgage dated 17/09/2010 between Pastor Osei Agyeman and The Trust Bank (Now Ecobank). This mortgage makes the mortgagee a secured creditor who must be given priority over any unsecured creditor. It is on record that whereas the mortgage was executed on 19/09/2010, the Defendants obtained judgment against Pastor Osei Agyemang on 26/05/2010 The Defendants herein are unsecured creditors. Obviously, the secured creditors have priority over them. It is my considered opinion that this mortgaged property cannot be attached by any unsecured creditor or creditors unless they take steps to redeem the mortgage. By section 20 of the Mortgages Act, 1972 NRCD 96, the methods of redemption include (i) performing the acts secured by the mortgage which have yet to be performed and (ii) compensating the mortgagee by payment of interest, costs and any other expenses due in respect of the failure to have timely performance of the acts secured by the mortgage.
On the evidence before me, the Defendants, who brought the issue of mortgage to the notice of this court, have not demonstrated that they have taken any of these steps to redeem the mortgage which will then entitle them to attach the disputed property. They have also not demonstrated through cross-examination that the mortgage was not in compliance with section 25 of the Borrowers and Lenders Act, 2008 Act 773. Under the said section, a charge or mortgage is of no effect if it is not registered at the collateral registry within 28 days after the date of creation of the mortgage or charge.
For the reasons stated above, the Defendants cannot attach the property in dispute. The Deputy Sheriff is ordered to withdraw from possession of House number Plot 1 Block 6 A, Asuoyeboah, Kumasi, which was attached in execution of the judgment debt owed by Pastor Osei Agyeman forthwith.
Judgment entered in favour of the Plaintiff. The parties are to bear their own cost.