IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
VPS INTERNATIONAL - (Plaintiff)
AFRICAN AUTOMOBILE LTD AND JIHAD HIJAZI - (Defendants)
DATE: 23 RD MARCH, 2018
CIVIL APPEAL NO: RPC/195/2011
JUDGES: SAMUEL K. A. ASIEDU JUSTICE OF THE HIGH COURT
SAMUEL K. ANDREWS ESQ., FOR PLAINTIFF/J/C
STEPHEN SOWAH CHARWAY ESQ., THE CLAIMANT
In the execution of the judgment delivered in favour of the plaintiff on the 10th July 2012 by the High Court, the plaintiff/judgment/creditor attached the property commonly known as Mitsubishi House situate along the Kaneshie-Winneba Road, Accra. The said attachment was done per notice of attachment dated 29th August 2016.
As a result, the claimant herein, Jihad Hijazi, filed a notice of claim, in accordance with Order 44 rule 12 of the High Court (Civil Procedure) Rules, 2004, CI 47, to this property which had been attached in execution of the plaintiff’s judgment claiming the said property to be his and thereby contending that the property could not be sold to satisfy the judgment debt of the defendant judgment debtor. The plaintiff judgment creditor disputed the notice of claim and therefore paving the way for the court to invite the parties to appear before it in order that the issue of ownership of the attached property would be resolved in accordance with the provisions of Order 44 rule 13 of the Rules of the High Court.
At the hearing of the matter, the Claimant gave evidence and announced the closure of his case after which the plaintiff/ judgment creditor also testified per its representative. From the evidence on record the court finds that the attached property was originally owned by the father of the claimant, Mohamed Shafic Hijazi. This finding of fact is amply supported by exhibits A, B and C which was tendered by the claimant and admitted in evidence by the court. The said exhibits show that Mohamed Shafic Hijazi has been a lessee of the attached property since the 18th of February 1985 as evidenced by a Lease between Joseph Asai Darku as the lessor and the said Mohamed Shafic Hijazi bearing Deeds Registry Number 2683/1985 and stamped as AC182B/85.
There is evidence on record to the effect that subsequent to the lease, the lessee Mohamed Shafic Hijazi transferred, per exhibit B herein, the unexpired term of the said lease to his son, Jihad Hijazi, who proceeded, thereafter, to register the said lease and obtained Land Certificates as depicted by exhibits D and E. The representative of the plaintiff/judgment/creditor who gave evidence as having worked as a director of the defendant/judgment/debtor from the period 1994 to the year 2010 testified to the effect that it was never mentioned, during the period of his employment with the defendant/judgment/debtor, that the attached property was owned by Mohamed Shafic Hijazi the father of Jihad Hijazi who was at that time the managing director of the defendant/judgment/debtor company. The plaintiff’s representative however admitted that he has no documents to support the plaintiff’s allegation that the attached property belong to the defendant/judgment/debtor.
Sections 14 and 17 of the Evidence Act 1975, NRCD 323 states in no uncertain terms that
14. Allocation of burden of persuasion
Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that party is asserting.
17. Allocation of burden of producing evidence
Except as otherwise provided by law,
(a) the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof;
(b) the burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact.
In Okudzeto Ablakwa (No. 2) vs. Attorney General & Another  2 SCGLR 845 at 867 the court explained the law governing proof when it stated that:
“If a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17 (b) which, emphasizes on the party on whom lies the duty to start leading evidence…”
In the instant matter, the claim of the plaintiff/judgment/creditor is that the attached property is owned by the defendant/judgment/debtor, that is, African Automobile Limited. Therefore the onus is on the plaintiff/judgment/creditor to lead cogent evidence to prove their allegation. On the other hand, the claimant Jihad Hijazi who also claims the property attached to be his also has the burden to lead evidence to prove his ownership of the attached property which, in the opinion of the court, he has done by the tendering in evidence of registered document which shows that the said property has been transferred to him by his father who was the original owner. On the contrary, the plaintiff/judgment/creditor has failed in its duty to lead evidence to show that the said property belongs to the defendant/judgment/debtor. The only evidence on record is an allegation that the attached property was thought to be owned by the defendant/judgment/debtor.
The court is inclined to accept the testimony of the claimant to be more probable as against that of the plaintiff/judgment/creditor which is a mere oral allegation which is not backed by any documentary evidence. As was held in the case of DUAH v YORKWA [1993-94] 1 GLR 217 C.A. that
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.
From the totality of the evidence on record therefore, the court holds that the claimant has succeeded in proving his claim as against the plaintiff/judgment/creditor and that on the balance of probabilities, the court finds the claimant’s claim to be more probable than the case of the plaintiff/judgment/creditor. Accordingly, judgment is hereby entered for the claimant against the plaintiff/judgment/creditor. The claimant is hereby declared the owner of the attached property. Consequently the court hereby orders that the Registrar of the court withdraws the property in question from attachment and release the said property, forthwith, to the claimant in this matter.