IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
MARY BAH & 36 ORS - (Plaintiff)
JIM WALTER FORSTER & 3 ORS - (Defendants)
DATE: 22 ND JUNE, 2018
CIVIL APPEAL NO: CM/00210/2016
JUDGES: SAMUEL K. A. ASIEDU JUSTICE OF THE HIGH COURT
D.K. SOKPOR ESQ., FOR PLAINTIFF
VIDA ODORKOR ESQ., FOR CLAIMANT
Sometime ago the plaintiff/judgment/creditors in this matter obtained judgment to recover various sums of money from the defendants together with interest. In order to execute the said judgment, the plaintiffs attached the land in question in order to sell so they could use the proceeds to pay part of the judgment debt.
Following the said attachment, the claimant, Benedict Kwaku Chuku Kofitse, filed a Notice of Claim by which he laid claim to all that piece or parcel of Land in extent 0.080 of an acre (0.030 hectare) more or less being a small portion of parcel No. 5 Block 11 Section 132 and Registered at the Land Title Registry Victoriaborg Accra with Land Title Certificate Number GA 42288, Volume 59, Folio 431, situate at Adenta Housing Estate (Adenta –Frafraha Nii Okpoti Adjei Komey Street) in the Greater Accra Region of the Republic of Ghana. The Registrar of the court therefore sought leave of the court to invite the parties to appear before the court in order that the dispute between them may be resolved following the plaintiffs’ dispute of the claim filed by the claimant.
The claimant, at the trial, gave evidence through an attorney, one Prosper Kosi Dadugblor, who tendered in evidence exhibit A, the Power of Attorney donated by Benedict Kwaku Chuku Kofitse and then called witnesses to support his claim after which the plaintiff gave evidence through the 1st plaintiff and closed their case. The main issue before the court was whether or not the land in question is the property of the defendant/ judgment /debtors or the property of the claimant.
From the evidence on record the court finds that the land in question was originally owned by one Brilliant Dodzi Yaw Bonsi as shown by exhibit D, a Land Title Certificate issued on the 26th September 2013, in favour of the said Brilliant Dodzi Yaw Bonsi. Again from the evidence on record the plaintiffs/judgment/creditors never disputed the fact that the land in question was originally owned by Brilliant Dodzi Yaw Bonsi. The 1st plaintiff even made admission to the effect that the land was originally owned by Brilliant Dodzi Yaw Bonsi. The court also finds that on the 1st February 2016, Brilliant Dodzi Yaw Bonsi executed a Deed of Assignment bearing stamp number LVD GAST 284142017; exhibit B herein, in which he assigned his interest in:
All that piece or Parcel of Land situated lying and being at Adenta Housing Estate Accra and containing an approximate area of 0.31 Acre or 0.13 Hectare more or less and bounded on the North by the property of State Housing Company Limited measuring 93.2 feet more or less on the East by the property of State Housing the Company Limited measuring 68.5 feet, 53.6 feet and 27.5 feet more or less, on the South by a road measuring 75.9 feet, 21.6 feet and 66.1 feet more or less, on the West by the property of State Housing Company Limited measuring 85.9 feet more or less, on the North-West by the property of the Assignor measuring 69.3 feet, and 57.9 feet more or less, which piece or parcel of land is more particularly delineated on the plan attached hereto and thereon shewn Edged PINK.
The court finds that in an affidavit sworn by Brilliant Dodzi Yaw Bonsi on the 15th September 2015, received as exhibit 1 herein, he deposed at paragraphs 6, 7 and 8 that:
6. I have alienated interest in the remaining portion of the land which is approximately 0.40 Acres to Safeway Estate Limited (hereinafter referred to as “the Company”) making her the bonafide owner of same.
7. though all the transfer processes have been completed and registration is underway at the Land Title Registry of the Lands Commission, the Company is yet to be issued with a land title certificate bearing her name because of the cumbersome nature of the procedure at the said registry.
8. may I respectfully bring to your attention that I have sold 0.40 Acres of the land to the Company and have no interest or whatsoever in same and that the Company is the bonafide owner of the aforementioned acre and be recognized as such.
Indeed, when he was confronted with the content of the said affidavit during cross examination, Brilliant Dodzi Yaw Bonsi explained that the 1st defendant who is his friend approached him for financial assistance but he could not offer any such assistance to him and so the 1st defendant decided to access funds from a financial institution and approached him for documentation in order to present to the institution to get the loan. As a result, he prepared exhibit 1, the affidavit herein in order that the 1st defendant and his company, 3rd defendant herein, could present it to the financial institution. The court finds that the affidavit was prepared to deceive the bank or the said financial institution as if the land in question was owned by the 1st defendant. Nonetheless, one cannot deny the fact that the said affidavit is not a conveyance or an assignment of interest in land to the 1st defendant by Brilliant Dodzi Yaw Bonsi. Even the 1st plaintiff admitted under cross examination that Brilliant Dodzi Yaw Bonsi did not prepare any deed of assignment covering the land in issue to the 3rd defendant company.
As already pointed out it is the claimant as against the plaintiffs who has been able to produce a deed of conveyance, in this case an assignment as shown by exhibit B which shows that the land in question has been validly assigned by Brilliant Dodzi Yaw Bonsi to the claimant. It has been held in Duah v Yorkwa [1993-94] 1 GLR 217
Whenever there was a written document and oral evidence in respect of a transaction, the court would consider both the oral and the documentary evidence and often lean favourably towards the documentary evidence, especially where the documentary evidence was found to be authentic and the oral evidence conflicting.
Indeed, the 1st plaintiff who testified on behalf of all the plaintiffs admitted under cross examination that the plaintiffs have no document to prove their allegation that the property in question had been conveyed to the defendants in question. In Duah v Yorkwa (supra), the court also held that “the action was a land case and the law was that the plaintiff should have to succeed on the strength of her own case.” The court wishes to point out that in interpleader actions such as the one under discussion, the burden placed on the judgment/creditor is to lead cogent evidence to prove, on the balance of probabilities, that the property attached is the property of the judgment/debtors. Thus, it is not even enough for the judgment/creditors to show that the attached property does not belong to the claimant. For, it is only the property of the judgment/debtor that can be lawfully attached in execution. Hence, where the judgment/creditor is able to lead evidence to show that the property attached in execution does not belong to the claimant but at the same time is unable to prove that the attached property belongs to the judgment/debtor; he may not succeed.
From the totality of the evidence on record, the court is of the opinion that the property attached herein is the property of the claimant and that it does not belong to the defendants/judgment/debtors. The claim will therefore be allowed and the Registrar of the court is hereby ordered to release, forthwith, the said property from attachment.