The Claimants in this suit have claimed ownership of a building which the Execution Creditor had seized in execution of a prior judgment. Nii Aboagye who described himself as the 2^nd Claimant deposed to a supplementary affidavit thus:

1. I am the 2^nd Claimant and deponent herein.

2. That I am a grandchild of the late Ataa Aye Otuafo and a member of the Otuafo family and have the authority of the other Claimants to depose to this affidavit, the facts of which have come to my knowledge as a member of the said family.

3. That the family has agreed that I act to protect the property in question instead of the head of family who has been hindered in the performance of his duties by his health.

4. That at the hearing of this application, Counsel for the Claimants shall seek leave of this Honourable Court to refer to all processes or issues filed so far in this suit.

5. That the property (H. No. E/389/16) which has been attached is a family property and in accordance with customs and traditions, the property cannot be claimed by a descendant of our late grandfather Ataa Ayeh Otuafo

6. That the late Ataa Ayeh Otuafo was a subject of the Osu Stool and was validly granted a parcel of land in Maamobi where he constructed the current property which he used as his home. Attached are Water Bill and Electricity Bill in his name.

7. That I am verily advised and believe same to be true that if there is any interest any of the judgment debtors have in the said property, it may only be the right to be accommodated and not to alienate the property as it is contrary to law, custom and tradition.

The Plaintiff disputed the claim.

The court proceeded to take evidence from the 2 rival contenders to determine the true ownership of the property in question.

The 2^nd Claimant in his witness statement repeated his averments made in his affidavit of interest. He also told the court that the attached property was House No. E389/16 situate and lying at Maamobi. It was his testimony that the house in question belonged to his deceased grandfather. On his grandfather’s demise, the house had been used as a family house. He said the 2^nd Defendant whom judgment had been entered against lived also in the said house but denied that the house belonged to the said uncle.

This is what transpired in cross-examination:

Q. Is Nii Kojo Otuafo, the 2^nd Defendant in the original case your father?

A. No. My Lord.

Q. Who is he to you?

A. He is my uncle, the youngest of my uncles.

Q. In fact, he is the surviving child or son of your grandfather.

A. Yes. My Lord.

Q. And he was and still is living in that property.

A. Yes My Lord. That is where he is living. That is where all my uncles lived and my father also once lived in the same attached property. That is where we were born.

Q. I put it to you that whilst your uncle Kojo Otuafo is the only surviving child of their father Atta Ayeh Otuafo, you a grandchild cannot make a claim to the property.

A. Respectfully, My Lord, I am not challenging my uncle about the said property but the truth is the attached property does not belong to him butt belongs to my grandfather. Some other uncles had been there before it got to his turn.

The Plaintiff/Judgment-Creditor in her witness statement averred that the instant Claimant had no capacity to make the claim as he was not the head of family. She also denied that the attached property was family property.

The 2^nd Claimant contended that he had the family head’s authority to make the instant claim. During cross-examination, he admitted that although the family head had authorized him to institute the instant claim on behalf of the family, he had no formal power of attorney. This is what transpired:

Q. What is the name of your head of family now?

A. He is called Nii Owusu Yeboah. He is at Osu.

Q. I am putting it to you that if you claim that this is family property, you have no authority to make this claim here.

A. My Lord, I have capacity because when this issue arose, I consulted the head of family and discussed the matter with him and he is blind. He can hardly hear. He indicated to me that if I believe strongly enough that the attached property belongs to my grandfather then I have every right to come and defend it because in the event that my father was alive, he would have defended it. ….

Q. I am further putting it to you that you have not tendered any power of attorney or his authority to you to mount this claim on his behalf as a family head.

A. Yes My Lord. The head of family has not given me any power of attorney but he directed me to come and defend or to testify and that when he is called upon to come he would do so.

From the evidence, the disputed property had been attached by the Court. Although it was referred to as being unnumbered, it was the same property that had been attached that the Claimants had laid claim to. In the attachment to the 2^nd Claimant’s witness statement were utility bills. The water bills were in the name of Nii Ayeh Otuafo and the billing address was House No. 389/16 Maamobi. (See Exhibit A series). There was also an electricity bill in the name of Aye Atuafo and the billing address was House No. 285/13 (See Exhibit B).

The 2^nd Claimant has told the court that there he had no title deeds to the property as the land was given to his grandfather via a customary grant. After his grandfather’s demise, no one took out letters of administration in respect of the property. Nothing existed in writing to show ownership. However in Brown v. Quarshigah, the court quoting from University of Cape-Coast v. Anthony (1977) 2 GLR 21 stated: “customary law knows no writing”

Then again, the issue of capacity to institute this claim has been raised by the Plaintiff/Judgment-Creditor. In Re: Ashalley-Botwe Lands; Adjetey Agbosu & Others v. Kotey & Others (2003/2004) SCGLR 420 the court had this to say at p. 432:

(1) As a general rule the head of family, as representative of the family is the proper person to institute suits for the recovery of family land.

(2) To this general rule there are exceptions in certain special circumstances such as:

(i) Where the family property is in danger of being lost to the family; and it is shown that the head (either out of personal interest; or otherwise) will not make a move to save or preserve it; or

(ii) Where owing to a division in the family, the head and some of the principal members will not take any step or

(iii)Where the head and principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole.

In any such special circumstances, the Court will entertain an action by any member of the family, either upon proof that he has been authorized by other members of the family to sue, or upon proof of necessity provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property.”

The court held further that there were two broad special circumstances under which the general rule that only the head could sue, would not apply. These are first, where the member of the family has been authorized by members of the family to sue, or, second, upon proof of necessity to sue. Thus the rule in Kwan v. Nyieni (1959) GLR 67 had left the matter open for possible expansion of those special circumstances.

In this case, the Claimant has said he had the authority of the head of family to bring this action. He has not shown any power of attorney to act on behalf of either the head of family or the family itself. In spite of that, he could as an ordinary member of family make a claim to protect family property if he believed it was going to be sold to defray a judgment debt of an individual member of family.

So is this property actually family property? The burden of proof was initially on the Claimants to lead evidence that would entitle them to judgment. See Section 17(2) of the Evidence Act and Re Ashalley Botwe Lands; Adjetey Agbosu & Ors v. Kotey & Ors (2003.2004) SGLR 420 @ 425. This burden continues to shift depending on the nature of evidence adduced by the parties and their witnesses. Thereafter, it was up to the Plaintiff/Judgment-Creditor to lead evidence in proof of her contention that the attached property belonged to her Judgment Debtor and that she had rightfully attached it.

Order 44 r 2(5) of CI 47states:

Subject to subrule (3) all property movable or immovable, belonging to the judgment debtor, and whether held in the judgment debtor’s name or by another person in trust for the judgment debtor or on the judgment debtor’s behalf is liable to attachment and sale in execution of the judgment or order.

In cross-examination of the Plaintiff/Judgment-Creditor, this is what ensued:

Q. Madam Akua Afriyie, do you know the house that has been attached, have you been there before?

A: Yes. My Lord, I have.

Q: Can you describe the house to his court?

A. My Lord, it appears like a compound house. I have not been there for a while so I don’t know the colour but what I do remember is that there are a number of doors similar to what pertains in a compound house.

Q: Did you find out the people who lived in the house?

A. The number of occasions that I have been there, at least 6 times, I saw women, wives likely and children. I never met a man there with the exception of Nii Otuafo.

From the above evidence, Nii Otuafo, the 2^nd Defendant lived in the house which had an appearance of a compound house. But did the fact that he lived there make it his personal property? The claimants have said it was their grandfather’s house and that various members of family live in it. The evidence that it appeared like a compound house with a number of doors and that there were other persons living in it gives credence to the fact that the house had more than one occupant.

The utility bills are in the name of Nii Ayeh Otuafo. The water bills which have the House No. 389/16 Maamobi are in Nii Ayeh Otuafo’s name. The 2^nd Defendant is Nii Kojo Otuafo. The bills are not in his name.

In Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the court held:

It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.

See also Section 12(1) of the Evidence Act which provides as follows:

Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.

Section 12(2):

Preponderance of the probabilities’ means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence

The rules of evidence required the parties to make out their claims on a balance of probabilities. In the case of Takoradi Flour Mills v. Samir Faris (2005/2006) SCGLR 882 at 900 the court said:

…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 favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict.

The whole point of this exercise has been to find out if the property attached belonged to the Judgment-Debtor and could be attached and sold to pay off the judgment debt. The Plaintiff/Judgment-Creditor apart from denying that the property belonged to the Otuafo family did not proffer any evidence to prove substantively that the property did belong to her Judgment-Debtor. In Kwadwo Berkye v. Pyram Savings & Loans Ltd and anor and Yusif Ahmed Edusei (2009) 6 GMJ p. 172 the court stated that the appellant had the primary burden to establish that the attached property in fact belonged to the defendants or either of them in the face of the challenge by the claimant. The claimant also had the burden to prove that the said property did belong to him but not to the defendants or to either of them.

The court further held that it was not every property at all that a successful party in litigation could attach in execution of a judgment obtained. They must first of all satisfy themselves that the property attached belonged to the judgment debtor or that the judgment debtor had pecuniary interest in the said property.

In the instant case, the Claimants have been able to lead some evidence which casts doubt on the Plaintiff/Judgment-Creditor’s assertion that the property belonged to the 2^nd Defendant/Judgment-Debtor.

In view of that the property attached cannot be sold to defray the Judgment Debtor’s debt as there has not been enough evidence to prove that he is the owner of the property to the exclusion of others.

The property i.e. House No. 389/16 is to be released from attachment.

Costs of GH¢4000.00 is awarded against Plaintiff/Judgment-Creditor.

(SGD)

JENNIFER A. DODOO

JUSTICE OF THE HIGH COURT