IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2019
BSIC GHANA LIMITED - (Plaintiff/Applicant)
GYAMFUA ABABIO INVESTMENTS LIMITED & ANOR - (Defendant/Respondent)
DATE: 18TH JUNE, 2019
SUIT NO: BFS/33/2019
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
KAMIL MOHAMMED IDDRISU FOR THE PLAINTIFF/APPLICANT
MUJEEB RAHMAN AHMED FOR THE DEFENDANTS/RESPONDENTS
In this application, the Plaintiff/Applicant (hereinafter called the “Applicant”) is praying for an order for preservation of the immovable property located at Plot No. 4, 16th Street, Section 3, Atasomanso Layout, Kumasi.
This application is supported by a 10 paragraph affidavit filed on behalf of the applicant on 15th February, 2019.
It is the applicant’s case that the instant suit stems from the 1st defendant’s/1strespondent’s default in paying credit facilities extended to it by the applicant despite the fact that the facilities have been called in and various demand notices have been served on the 1st respondent. The applicant contends that since the aforesaid property which belongs to the 2nd respondent was mortgaged to secure the loan facility, it is just and convenient for the property to be preserved by the court to prevent the dissipation of the same by the 2nd respondent. Counsel for the applicant submits that the application is grounded under Order 25 rule 2 of the High Court (Civil Procedure) Rules, 2004 (CI 47) which gives the court the discretionary power to preserve the property pending the final determination of the case. In response to the respondents’ assertion that a different property has been offered to the applicant to substitute the property in issue, Counsel argues that there is no such documentary evidence to verify the assertion. That, there is no deed of discharge of the mortgage property in issue. He prays the court to grant the application.
The defendants/respondents (hereinafter called the “Respondents”) are opposed to the application and they have demonstrated their opposition in a 19 paragraph affidavit.
Counsel for the respondents submits that it is too late in the day for counsel for the applicant to question the non-availability of evidence relating to the fact that they have substituted the property in issue (property located at Plot No. 4, 16th Street, Section 3, Atasomanso Layout, Kumasi)with another property. Counsel makes reference to the statement of defence as well as the affidavit in opposition and submits that since the applicant failed to file a reply and a supplementary affidavit respectively to deny the averment that the mortgaged property has been substituted with a different property, it is deemed to have admitted the said substitution. He argues that by failing to deny this material fact, the applicant is caught by the principle in the case of Asumin v DIC and 640 others where the court held that failure to deny a material fact constitutes an admission. Counsel contends that the grant of the application will prejudice their case since the said substitution forms a material part of their case. Counsel also refers to the mortgage agreement (Exhibit J), paragraph 4 and submits that per the provision it is clear that the respondents cannot create any other interest in the property. Thus, the notion that the property can be dissipated is misplaced. He invited the court to dismiss the application.
Order 25 rule 2 of CI 47 provides:
Rule 2—Detention, Preservation of Property
(1) On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject-matter of the cause or matter or in respect of which any question may arise in the action, or may order the inspection of any such property in the possession of a party.
(2) To enable an order under subrule (1) to be carried out the Court may by the order authorise any person to enter upon any land or building in the possession of any party to the cause or matter.
(3) Where the right of a party to a specific fund is disputed, the Court may, on the application of a party to the cause or matter, order the fund to be paid into court or otherwise secured.
(4) An order under this rule may be made on such terms as the Court considers just.
(5) Unless the Court otherwise directs, a defendant may not apply for such an order before the defendant files appearance.
In General Development Co. Ltd v Rad Forest Products Ltd [1999-2000] 2 GLR 178, the Court of Appeal laid down the factors to be considered in making an order for the preservation or detention of property: an order may be made against a party in possession or custody of the property in issue; there must be a pending dispute over ownership of the property, necessitating a need to preserve it pending the determination of the dispute; the application must be declined where the order would serve no useful purpose or may cause hardship among other factors.
Admission is defined by the 7th edition of the Black’s Law Dictionary as a voluntary acknowledgment of the existence of facts relevant to an adversary’s case. Justice Brobbey in his book, Essentials of Ghana Law of Evidence at page 112 explained admissions to mean the fact or issue which has been conceded and is no longer in contention. It was held in Samuel Okudzeto Ablakwa & Anor v Jake Obetsebi Lamptey & Anor [2013-2014] 1 SCGLR 16 that where a matter is admitted proof is dispensed with.
Also, in the case of In re Asere Stool; Nikoi Olai Amontai IV (Substituted by) Tafo Amon II vrsAkotia Owirsika III (Substituted by)Laryea Ayiku III [2005-2006] SCGLR 637 at 656, which was quoted with approval in Fynn v Fynn [2013-2014] SCGLR 727 at 738, it was held that there cannot be any better proof than an adversary admitting a fact in contention.
In law there are two main types of admission. They are the formal and informal admission. An admission is formal when it is contained in the pleadings of the opponent; thus when the opponent voluntarily accepts the truth or authenticity of the facts averred by the adversary. A formal admission may also occur during cross examination.
Informal admissions are presumptive in nature and may include either implied, incidental or adoptive admissions. Adoptive admissions are actions by a party that indicates approval of a statement made by another, and thereby accepting that the statement is true.
Implied admission is an admission that can be reasonably inferred from the act or statement of a party, or from a party’s failure to perform an act or make a statement. It is also referred to as tacit admission.
In FCX Inc. v. Caudill, 85 N.C. App. 272 (N.C. Ct. App. 1987), the court observed that “implied admissions are received with great caution. However, if the statement is made in a person's presence by a person having firsthand knowledge under such circumstances that a denial would be naturally expected if the statement was untrue and it is shown that he is in a position to hear and understand what is said and has the opportunity to speak, then his silence or failure to deny renders the statement admissible against him as an implied admission”.
The form of admission urged on this court by counsel for the respondents is implied admission which in the estimation of counsel, is manifested in the applicant’s failure or refusal to traverse the fact that the mortgaged property has been substituted with another property to serve the purpose of security for the loan facility.
Admission by silence means the failure by a party, in whose presence, hearing, or observation an act or declaration is made, to assert that such act or declaration is untrue. Admission by silence is based upon the principle that when the act or declaration is such that it naturally calls for action or comment if not true, the party against whom such act or declaration is made must assert it as untrue if it is proper and possible for him/her to do so. In People v. Cihak, 169 Ill. App. 3d 606 (Ill. App. Ct. 1988), the court observed that “to qualify as an admission by silence or an implied admission, it is essential that the accused heard the incriminating statement and that it was made under circumstances which allowed an opportunity for the accused to reply, and where a man similarly situated would ordinarily have denied the accusation”.
Order 11 rules 13 and 14 of CI 47 provide for admissions and denials in pleadings:
Rule 13—Admissions and Denials
(1) Subject to sub rule (4) of this rule, any allegation of fact made by a party in the party's pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it.
(2) A traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication.
(3) Subject to sub rule (4), every allegation of fact made in a statement of claim or counter-claim which the party on whom it is served does not intend to admit shall be specifically traversed by the party in the party's defence or defence to counterclaim and a general statement of non-admission shall not be a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any allegation as to the extent of damage or the amount of damages shall be deemed to be traversed unless specifically admitted.
Rule 14—Denial by Joinder of Issue
(1) If there is no reply to a defence, there shall be a joinder of issue on that defence.
(2) Subject to sub rule (3),
(a) there shall be at the close of pleadings a joinder of issue on the pleading last served; and
(b) a party may in the party's pleading expressly join issue on the preceding pleading.
(3) There shall be no joinder of issue on a statement of claim or counterclaim.
(4) A joinder of issue shall operate as a denial of every material allegation of fact made in the pleading unless, in the case of an express joinder of issue, any such allegation is excerpted from the joinder and is stated to be admitted, in which case the express joinder of issue operates as a denial of every other such allegation.
These provisions roll out the circumstances which allow a party to reply or deny a material fact. My understanding of the combined effect of Rule 13 and Rule 14 is that a party shall deny an allegation made by an adversary – in the latter’s statement of claim – through the first party’s statement of defence. If an allegation is made in a counterclaim, the adversary ought to deny the said allegation in a reply. Failure to make the above denials constitutes an admission of the allegations. However, if at the close of pleadings there is no reply to a statement of defence, there shall be a joinder of issues of such defence. What it means is that issues shall be joined in relation to any allegation contained in the defence. Consequently, counsel for the respondent’s submission that the applicant’s failure or refusal to traverse paragraphs 15 and 16 of the statement of claim constitutes an admission of the averments is not borne out of the rules. Paragraphs 15 and 16 states:
“15. The Defendants in their eagerness to ensure that the 1st Defendant satisfies its liability to the Plaintiff, in April, 2018 the 2nd Defendant offered her residential property, H/No. DNT 18, situate at Dome pillar 2, Accra to the Plaintiff to take over and sell same and the proceeds used to pay or defray part of the 1st Defendants debt, a proposal the Plaintiff accepted.
(16) The Defendants aver that pursuant to the acceptance of the proposal, the Plaintiff took custody of all title documents of the said property in Accra and caused its agents to inspect and value the property and as a result of the steps taken by the Plaintiff, the 2nd Defendant caused almost all her personal effects to be conveyed from the property awaiting official communication from the Plaintiff in respect of the outcome so as to finally vacate the property.”
Relating the afore-stated principle of law to affidavit evidence, it is my considered opinion that failure or refusal on the part of an applicant to traverse an allegation made by a respondent through a supplementary affidavit does not mean the applicant has admitted the allegation. It also means that issues are joined in respect of the allegation contained in the affidavit in opposition. It is therefore concluded that the applicant’s silence concerning the deposition in the affidavit in opposition which repeated paragraphs 15 and 16 of the statement defence never constitutes an admission to the allegation therein. This allegation is not or akin to a counterclaim which requires a mandatory reply to traverse the same. Ultimately, parties are expected to prove their case on the preponderance of probabilities through the affidavit evidence.
I have looked at the Deed of Mortgage (Exhibit J) covering the property and I agree with counsel for the respondent that it offers protection against transfer of the property to a third party. Paragraph 4 of Exhibit J provides:
“4.0 RESTRICTIONS ON THE MORTGAGE
4.1 The Mortgagor shall not have the power except with written consent of the Bank;
4.1.1 To create any further mortgage, charge or lien ranking in priority to or pari passu with this mortgage, or
4.1.2 to sell, let or part with the possession or otherwise dispose of any part of the Mortgaged Property.
4.1.3 to exercise any statutory or other powers of granting or agreeing to grant or of accepting or agreeing to accept surrenders or leases or tenancies of the present or future freehold and leasehold of the Mortgaged Property".
From the provisions, it is my considered opinion that so long as the mortgaged property has not been discharged same cannot be transferred to a third party without the consent of the applicant bank. The deed of mortgage offers sufficient protection to the applicant.
Having failed to establish that the 2nd respondent intends to or is taking steps to dissipate the property coupled with the restrictions on the mortgaged property, there is no need to preserve the property pending the determination of the case. The applicant has not discharged the burden of proof imposed on him in this application. In the circumstance, the preservation order would serve no useful purpose. The result is that the application is refused.
There will be no order as to costs.