IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI - A.D 2019
MERLIN SHIPPING AGENTS -(Plaintiff)
AKWASI AGYEMANG & ANOTHER - (Defendant/ Climant)
DATE: 5TH FEBRUARY, 2019
SUIT NO: INTS 12/2017
JUDGES: DR. RICHMOND OSEI-HWERE , J
ALFRED ANNIM QUARSHIE FOR THE CLAIMANTS
STEPHEN OPPONG FOR THE JUDGMENT CREDITOR
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.’’
In this interpleader suit, the claimants are contending that property, Plot Number 10 Block F, Pankrono Patasi has been attached in execution of a judgment procured against the defendant/judgment debtor herein by the plaintiff/judgment creditor herein. According to the 2nd claimant (who testified on her own behalf and on behalf of the 1st claimant) she acquired the plot of land, Plot Number 10 Block F, Pankrono Patasi in 1995 and completed the building on the said plot in 2002. She stated that she subsequently gifted the property to her daughter, the 1st claimant when the latter attained the age of 18 years. The claimants called one Thomas Obeng as a witness in a bid to corroborate the fact that Plot Number 10 Block F, Pankrono Patasi was acquired and developed by the 2nd claimant and that the defendant/judgment debtor who happens to be the husband of the former has no interest in it.
The claimants insist that property, Plot Number 10 Block F, Pankrono Patasi belongs to them and the said property is the subject of the execution. This is what transpired at page 15 of the record of proceeding during cross examination of the 2nd claimant:
Q: The property that was attached in execution of this judgment debt is located at Atimatim new site?
A: That is not correct. The reason being that the land is situate at Pankrono Patasi and not Atimatim
Q: From Kumasi you get to Tafo to Pankrono and then to Atimatim Junction. Is that not correct?
A: When I am going home I branch at Pankrono Methodist church and proceed to Pankrono Patasi where I live.
Q. That means that the property that was attached is different from the property that you claiming to be yours. This is because the property that was attached is located at Atimatim New Site?
A: That is not correct. They attached my property but they used a wrong address.
Q. The property that was attached you have to get to Atimatim Junction before branching off?
A: That is not correct
Q: You have conspired with your husband to deprive the Judgment Creditor the fruits of his judgment. That you did by removing the document that was affix on the right property i.e. Plot No. 7 Atimatim New Site and you are claiming that it was rather affix on Plot No. 10 Block F, Pankrono Patasi?
A: That is not correct. I have my site plan and it is Plot 10 Block F.
It is clear that the parties are at cross purposes in respect of the subject matter of the writ of execution. This can, however, be resolved having regard to Exhibit F, the notice of attachment by the sheriff dated 11th of July, 2016. This document alludes to the fact that a writ of fifa dated 9th July, 2016 was issued in respect of the subject matter of the attachment. From exhibit F, the particulars of the subject matter of the property to be attached is as follows:
H/NO. 7 AKWASI OPPONG AREA ATIMATIM ESTATE KUMASI.
Indeed, this address is different from Plot No. 10 Block F, Pankrono Patasi which claimants claim to be the subject of the execution. There is no evidence on record to show that the two addresses are referable to the same property. From the record, it is palpably clear that Atimatim and Pankrono Patasi are different suburbs within the Kumasi Metropolis. This is confirmed by a certified true copy of an extract from Suame Police Station diary dated 22nd October, 2012 which the claimants tendered as part of their exhibit C series. In this extract, the 2nd claimant had lodged a complaint in respect of her missing passport and her particulars were entered as follows: Adwoa Anane, H/No. Plt 10 Blk F Pankrono Patasi near Atimatim. The court hasalso taken judicial notice of the fact that the Akwasi Oppong Area is within the Atimatim suburb and not Pankrono Patasi. The two suburbs are closely located but they are certainly not the same. Thus, there is no doubt that H/No. 7 Akwasi Oppong Area Atimatim Estate Kumasi is located within the Atimatim suburb and by no stretch of imagination can it be referable to an address at Pankrono Patasi specifically Plot No. 10 Block F, Pankrono Patasi.
If indeed exhibit F was affixed on a property, House Number Plot No. 10 Block F, Pankrono Patasi for the purpose of attachment, it is a mistake which would render the execution process void. This could, however, be cured by an application to set aside the execution process rather than an interpleader suit. An interpleader suit can only suffice if and only if one alleges that property named in the writ of execution and notice of attachment belongs to him. So long as Plot No. 10 Block F, Pankrono Patasi was not mentioned in the execution processes specifically the writ of fifa and the notice of attachment (exhibit F) and the same has also not been proven to be referable to H/No. 7 Akwasi Oppong Area Atimatim Estate Kumasi, it is not a subject of execution and as such the instant interpleader action is unnecessary. Consequently, the same has no merit.
For the forgoing reasons, the interpleader suit is dismissed. The execution process in relation to H/No. 7 Akwasi Oppong Area, Atimatim Estate, Kumasi which was put on hold due to this action can therefore proceed.
There will be no order as to costs – parties shall bear their own costs.