IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2014
JAMES OPOKU BAAH AND KWABENA TWUM
DATE: 27TH MARCH, 2014
SUIT NO: INTS/11/13
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
OBENG MANU JNR. FOR THE PLAINTIFF
JUDY EDUSEI FOR ASANTE KROBEA FOR THE DEFENDANT
The Plaintiff herein caused an interpleader application to be filed on his behalf when the Defendant herein caused the property in dispute to be attached in execution of a judgment obtained against one James Opoku Baah at the Commercial Court, Kumasi. The Defendant filed a notice to dispute the Plaintiff’s title under Order 44 rule 12 (2) of the High Court (Civil Procedure) Rules 2004, C.I. 47.
A notice was subsequently served on both parties for the issue of the Plaintiff’s title to the disputed property which has been variously described as H/N0. 18 Block NW 6022 Street, Breman and H/N0. Plot 30 Block C, Breman, to be determined.
At the trial, the Plaintiff narrated the history behind his acquisition of the said property as follows: He bought the disputed property which had been built up to the lintel level from one Ama Serwaa in the year 1999 for nine (9) million Cedis as per the document of transfer tendered as exhibit A, allocation note and site plan (exhibits B and B1). The Plaintiff continued the construction, roofed the same and was living in this house.
Whilst working with Nana Opoku Baah, the Plaintiff encountered financial difficulties as a result of which he sold this property to Nana Opoku Baah. The Plaintiff transferred this house to Opoku Baah and this was evidenced by a document of conveyance dated 2002 (exhibit C). This transfer was done in the year 2002. Mr. Opoku Baah also run into a debt, collected various sums of money from the Plaintiff and eventually sold the house back to the Plaintiff. This time round, the deed of conveyance (exhibit D) was prepared by one Lawyer Dapaa who is now a High Court Judge. He explained that Breman stool lands are first sold by families who then take the purchaser to the Bremanhene for a proper allocation paper to be issued. That accounts for the two allocation papers in respect of the plot in issue (exhibit E and E1).
When Nana Opoku Baah sold the house back to the Plaintiff, he could not trace the documents which the Plaintiff had given to him earlier on. This necessitated the preparation of exhibit D by Lawyer Dapaa. Out of the blue, the Plaintiff saw a notice of attachment which had been posted on this house. Upon enquiries, he was informed that Nana Opoku Baah had used this house to secure monies taken from Thomas Minkah. All this while, Opoku Baah lived in this house. In cross examination, the Plaintiff denied that this property initially belonged to their partnership. He said this property was his but he owed Opoku Baah when he was a bank manager as a result of which he sold it to Opoku Baah.
The Plaintiff called two witnesses, namely, Opoku Baah and Justice Kwasi Dapaa who was formerly Lawyer Kwasi Dapaa (PW1 and PW2). PW1 said the building in issue had been built up to the lintel level when he and the Plaintiff herein bought it. He continued that even though they were doing business together, the name used on this property was Kwabena Twum (i.e. the Plaintiff).When the assets of the business were shared, the Plaintiff had the cars whilst the building in issue went to PW1. As at the time exhibit C was made on 03/04/2002, PW1 said the building had been completed so it was habitable. In 2008, the building was transferred by PW1 to the Plaintiff for a consideration of GH¢10,000.00 and exhibit D was prepared.
At the time of executing exhibit D, PW1 said he did not take the documents covering the house to PW2. Even though the documents were in his possession, PW1 said he did not also give them to Kwabena Twum. He said he intended to give them to Kwabena Twum later but they both forgot about it. He recounted the process by which the said documents got into the Defendant’s (Thomas Minkah) possession. In short, he told the court that these documents were taken from him under duress. According to PW1, he knew he could settle his indebtedness with Thomas Minkah and take back his documents. When asked him cross-examination why he failed to disclose during the trial in suit No. RPC 71/2012 that the property in issue belonged to some other person, PW1 answered that it was because the documents covering the property bore his name. He admitted referring to this property as his own in exhibits J and 1.
When PW2 testified, he admitted preparing exhibit D for the parties when he was in private Legal practice and that the parties executed this document before him. He told the court in cross-examination that PW1 presented some documents to him and he used them in the recitation part of exhibit D. He listed these documents as an allocation note with a site plan executed by Nana P.K. Mensah dated 24/11/1994, a note of transfer executed by Ama Serwaa transferring her title to Kwabena Twum, the purchaser and a document made by Kwabena Twum transferring his ownership to Opoku Baah on 03/04/2002.
Concluding, PW2 said his task was to re-convey the property from Opoku Baah to Kwabena Twum and he did so by preparing exhibit D. After preparing exhibit D, PW2 said he handed copies to the Kwabena Twum and Opoku Baah immediately.
The Defendant resisted the Plaintiff’s claim to this property in its entirety. He testified that in respect of the loan agreements executed between him and Opoku Baah, the latter claimed legitimate ownership of the property in question which he used as security. To confirm his claim, he submitted the original documents of the property to the Defendant in February, 2010. These documents are in the custody of the registrar of this court as exhibits in a case which is now on appeal. When the property was attached after judgment, the Plaintiff filed the instant interpleader application. He admitted that up to the year 2002, this house belonged to Kwabena Twum but he made a formal transfer to James Opoku Baah in that year.
Concluding, the Defendant invited the court to strike out the claim as Kwabena Twum has no ground to claim the property. He made reverence to the close friendship between the Plaintiff, PW1 and PW2 and described their action as a last resort to prevent the sale of the property in favour of James Opoku Baah. In cross-examination, Counsel for the Plaintiff suggested that Opoku Baah had already sold the house and used the money at the time he approached the Defendant and that the Defendant had been defrauded by Opoku Baah. These suggestions were denied by the Defendant who maintained his stance that Opoku Baah has been the legitimate owner of the property since the year 2002. A certified copy of the judgment against Opoku Baah in suit number RPC 71/ 2012 was tendered as exhibit 7.
In her written submissions, counsel for the Defendant referred to section 26 of the Evidence Act, 1975 NRCD 323 and argued that PW1 had intentionally caused the Defendant to believe that the property in issue belongs to him and the Defendant had relied on the same to his detriment. As such, the Plaintiff is estopped from laying any claim to this property.
For the Plaintiff, Counsel submitted that the date of conveyance of the property to the Plaintiff clearly predates the date of the judgment of this court decreeing payment of a sum of money to the Defendant herein (Plaintiff in the substantive suit). He argued that there has not been any collusion between the Plaintiff and any other party because the courts frown on such collusions in interpleader proceedings. He cited and relied on Murrieta v South America Co. Ltd (1893) 62 L J OB 396. Further, counsel relied on section 48 of the Evidence Act, N.R.C.D. 323, and argued that the presumption of ownership by a person in possession is always rebuttable. He urged the court to find that the fact that title documents were not handed back to the Claimant after transfer should not deprive him as the true owner of the property. In his view, Opoku Baah lived in this house as a mere licensee.
The standard of proof required here is the same as in all civil suits i.e. proof on the balance of probabilities as required under sections 11(4) and 12 of the Evidence Act,1975 N.R.C.D. 323. Thus, the Plaintiff will be enjoined to lead evidence on all the facts essential to his claim over the disputed property. In this case, his exhibit D (deed of conveyance from Opoku Baah to Kwabena Twum) has been offered as his best proof of interest or title to the property in issue. I will examine exhibit D and the circumstances leading to its execution thoroughly.
On the face of exhibit D, it was prepared on 31/01/2008. At the time PW2 was testifying, exhibit D was already in evidence and he had an opportunity to look at it to refresh his memory. PW2 is a person of proven integrity and so if he says that he prepared exhibit D, I will believe him. That notwithstanding, his evidence as to the preparation of exhibit D sharply contradicts that of PW1 and the Plaintiff in whose favour the disputed property was conveyed. Below is an excerpt from the evidence of PW1:
“Plot number 30 block ‘C’ is not mine as alleged by Thomas Minkah. At the time of executing exhibit D, I did not give any documents apart from this document to Kwabena Twum. I had other documents in my possession but I did not give them to him. As at now, Kwabena Twum does not have these documents”
“We executed the conveyance at the office of Lawyer Dapaa. Unfortunately, I did not take the documents there. I intended to give the documents to him when we came back to the house. When we got to the house, I searched for them but could not find them. It was later on that I saw them among some of my papers. When I saw the papers, Kwabena Twum was not around. We all forgot to ask each other so I put it somewhere.”
This was what the Plaintiff also said in his evidence on oath:
“When Nana Opoku Baah sold the house back to me, he said he could not trace the documents I gave to him at the time I sold the house to him. That is why we went to Lawyer Kwasi Dapaa for another document to be prepared.”
The version of PW2 can be gleaned from his answers in cross-examination as follows:
Q. At the time that you were given instructions by Opoku Baah to prepare exhibit D, did he produce any document evidencing his title to the said property?
A. He produced some documents and I used them in the recitation part of the deed of conveyance.
Q. What documents were they, if you can remember?
A. There was an allocation note with a site plan executed by Nana P.K. Mensah dated 24/11/1994 in favour of one Miss Ama Serwaa of Kumasi Suame as the allotee. There was a note of transfer executed by Ama Serwaa in respect of the plot of land on 27/07/1999 transferring her title to Kwabena Twum as the purchaser. Kwabena Twum also had executed a document on 03/04/2002 transferring his ownership to Opoku Baah. What I was expected to do was re-conveying the property from Opoku Baah to Kwabena Twum. That was what I did.”…
Q. After the execution of the deed, when were they handed with copies?
However, when PW1 was asked in cross-examination as to when Copies of exhibit D were given to the parties thereto, his answers were different as indicated below:
Q. You told the court that exhibit D was made in 2008?
Q. I believe you were given a copy?
A. When we executed it, we gave them to Lawyer Kwasi Dapaa. He said he was going to do something about it. It was later that Kwabena Twum collected them.
Q. Subsequently, did you receive a copy?
A. I received it very late
Q. I believe the time you gave the documents covering the property to Thomas Minkah you had your copy of exhibit D?
Q. When did you receive your copy?
A. It was after I had handed over the property to him
Q. Which year?
A. 2010 but I cannot remember the month.
Q. Who gave you your copy? Was it the lawyer or Mr. Twum?
A. Mr. Kwabena Twum.
From the above, it can be reasonably inferred that the circumstances leading to the preparation of exhibit D and what ensued thereafter are clouded with doubts which go to the root of these proceedings. On one hand, the parties to exhibit D say that no documents were taken to their lawyer, PW2, at the time this deed of conveyance was prepared. On the other hand, PW2 told the court that he sighted these documents before preparing exhibit D. Again, PW1 said he was given a copy of exhibit D by the Plaintiff sometime in 2010. He admitted that exhibit D was not in his possession at the time he dealt with Thomas Minkah (Defendant herein). Yet, PW2 maintained that he gave exhibit D to the parties thereto immediately the document was executed. Who should the court believe?
It is to be noted from exhibit 7 (judgment of the court in suit number RPC 71/2012 dated 22/12/2012), that PW1 who was the Defendant in that suit had counterclaimed for a return of his title deeds which had been fraudulently taken away from him by the Plaintiff in that suit (now Defendant in the interpleader proceedings). If the disputed property had genuinely been conveyed to Kwabena Twum at that time, why was such a counterclaim made? During the trial which culminated in exhibit 7, the fact of PW1’s ownership of the property which is now in dispute was never in doubt. As such, no issue arose as regards Opoku Baah’s title. It was therefore not surprising that he wanted the court to return the title deeds to him.
Apart from these inconsistencies, PW1 who pledged the property in dispute as security for repayment of his indebtedness to the defendant herein remained in physical occupation of the house several years after exhibit D was said to have been made. The original title deeds also remained in his possession until he voluntarily handed them over to PW1 as security for repayment of a loan. Looking at the circumstances of this action, I do not think that PW1 was a mere licensee as contended by Counsel for the Plaintiff.
Both Counsel relied on the Evidence Act to buttress their submissions i.e. section 26 and 48 which read:
“Except as otherwise provided by law, including a rule of equity, when a party has, by his own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief, the truth of that thing shall be conclusively be presumed against that party or his successors in interest in any proceedings between that party or his successors in interest and such relying person or his successor in interest.”
“(1) the things which a person possess are presumed to be owned by him
(2) A person who exercises acts of ownership over property is presumed to be the owner of it.
In order to establish a representation which is not backed by a contract, certain conditions must be fulfilled. These are: i) the representation should be that of fact and not just probabilities or possibilities; ii) it should have been made with the intention that it be acted upon; iii) that in fact, it was acted upon. When these prerequisites are satisfied, the person who made the representation will be estopped from denying the facts as understood by the other. Applying these principles, the court of Appeal in Quagraine v Adam (1981) GLR 599 threw out the appeal of a party who had deliberately encouraged another to expend money developing her land.
In the case before me, PWI had already defaulted on a loan agreement pursuant to which exhibits 1, 2 and 3 were prepared. In all these documents duly signed by Opoku Baah (PW1), he secured the loan with what he termed as his legitimate property. In exhibit 1, for instance, he stated:
“I, James Opoku Baah have agreed without reservation to secure the loan with my legitimate property, house No. 30 Blk. C, situate at Breman New Town, Breman. In event of default in payment of the said amount up to whatever amount it may reach in future, Thomas Minkah has the legal right to dispose of the house by selling or taken over to defray the debt.”
In exhibit 3 clause 3, James Opoku Baah indicated that he had handed over the original documents to his creditor (Thomas Minkah) to be taken back when full payment is made or to enable him take legal action to take over the property if the contract is breached.
From the foregoing, it can be reasonably inferred that James Opoku Baah representated to Thomas Minkah that the property in issue belonged to him. Moreover, the original documents were handed over to Thomas Minkah as of 17/03/2011 (see exhibit 3). These documents are still in the custody of the registrar of this court. How then did the Plaintiff herein get another original allocation paper in his name as per exhibit “E” dated 28/04/09? The Defendant herein, Thomas Minkah obviously relied on the representations made by James Opoku Baah to his detriment. It is too late in the day for James Opoku Baah to come to court and give evidence to the effect that at the time he made those representations, he had already sold this property. He is estopped by his conduct from denying that this property belongs to him. As regards exhibit D, irrespective of when it was prepared, I find that the parties thereto intended to use it to perpetrate fraud and they ought not to be allowed to benefit from their own fraud. The Plaintiff’s lawyer in cross-examination of the Defendant indicated that PW1 (James Opoku Baah) had perpetrated fraud on the Defendant. I am in agreement with counsel for the Plaintiff that PW1 acted fraudulently. He did not intend to transfer any rights or interest in the disputed property to Kwabena Twum. I find that Kwabena Twum ceased to be the owner of this property as far back as 03/04/2002 when exhibit C was prepared and by which he transferred his ownership to James Opoku Baah. A lawyer acts on the instructions of his client and therefore the lawyer who prepared exhibit D cannot be blamed irrespective of when it was prepared.
Contrary to the submissions made by counsel for the Plaintiff, I find that the Plaintiff failed to rebut the presumption of ownership of the disputed house by the evidence on record. James Opoku Baah lived in this house and had all the original documents handed to him in 2002 by Kwabena Twum in his possession and he handed over the same to Thomas Minkah. The said documents are still in the custody of this court pending an appeal filed by James Opoku Baah. He cannot fly a mere document said to have been executed earlier in time in the face of the court and expect the court to find that the presumption of ownership by PW1 has been rebutted.
To conclude, I will refer to Takoradi Floor Mills v Samir Faris (2005-2006) SCGLR 882 at 884 (holding 5)
“ … 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 favor the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favourable verdict.”
In the instant interpleader proceedings, I find that the Plaintiff has been unable to satisfactorily prove his case so as to tilt the scale of justice in his favour. I therefore come to a conclusion that house number Plot 18 BLK NW 6022, Breman Kumasi also known as H/N0. Plot 30 Block C, Breman, Kumasi is not the legitimate property of Kwabena Twum (Plaintiff herein) and it still remains the property of James Opoku Baah to whom it was transferred in the year 2002.
Judgment is accordingly entered for the Defendant. Cost of GH¢2,000.00 is awarded against the Plaintiff.