IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2016
CHARLES OBENG POKU - (Plaintiff)
JAMES BOATENG AND DENNIS YEBOAH - (Defendant)
DATE: 7TH NOVEMBER, 2016
SUIT NO: INT 29/2015
JUDGES: INT 29/2015
THEOPHILUS ACKOM BOADU FOR CLAIMANT
RIGHT OBENG MANU FOR THE PLAINTIFF/JUDGMENT CREDITOR
The Claimant/Plaintiff in this interpleader suit is contending that Mercedes Benz with registration number AS-8672-Z is his bona fide property, and cannot therefore be attached and sold in execution of the judgment debt of one James Boateng, the judgment debtor.
Judgment was given against the judgment debtor by this Court and in execution of the judgment the vehicle in dispute was attached. The claimant/plaintiff put in an interpleader, claiming as already stated that he had already purchased the vehicle from the judgment debtor before the same was attached. In his evidence, the claimant said it was one Asuman who brought the car to a garage at Santasi Roundabout, Kumasi prior to the purchase and that the vehicle was registered in the name of the Defendant/ Judgment Debtor. According to the claimant, they went to the Driver and Vehicle Licensing Authority (DVLA) office at Obuasi for the vehicle to be transferred into his name. Claimant tendered in evidence the Change of Ownership letter addressed to the Principal Technical Officer, DVLA, Kumasi. It was admitted and marked Exhibit A. The Form C (Transfer of Ownership form) covering the car was also tendered in evidence and marked Exhibit C. He stated further that he was in China when his father told him that the car had been attached in execution of judgment of the Court.
William Asuman was the only witness called by the claimant. He testified that the Defendant/Judgment debtor gave the Mercedes Benz with registration number AS-8672-Z to him to assist in selling the same. That he met the claimant who purchased it for GHC 20000. He contended that claimant paid GHC 15000 to him and together with the judgment debtor they advanced the money to the Plaintiff/ Judgment Creditor to defray part of the debt. That a change of name in respect of the document covering the car was subsequently effected.
The claimant instituted the instant interpleader suit under Order 44 rule 12(1) of the High Court (Civil
Procedure) Rules, 2004 C.I. 47 which states:
“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 the 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 the person’s address for service.”
My understanding of the wording of Order 44 rule 12 as a whole is that property attached in execution of judgment cannot be alienated without leave of the court. It is immaterial whether or not the purchaser who bought the property from the debtor had notice of that seizure, or even of the writ of execution. The property involved must belong to the judgment debtor for the same to be properly attached.
In an interpleader proceeding the claimant must set out facts which constitute proof of ownership. The claimant must prove on a balance of probabilities as required in civil trials that the property is his or hers. Thus, 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.”
Also, in Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the Supreme 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.”
Indeed, balance of probabilities connotes the existence of a state of fact which is more probable than its non-existence. The Evidence Act, 1975 (NRCD 323), s 12(2) also provides:
“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.”
Exhibits A and C (i.e. change of ownership letter and Form C respectively) that are in the claimant’s favour constitute prima facie proof that that he is the owner of the Mercedes Benz vehicle with registration number AS 8672 Z. These documents particularly the Form C were prepared in compliance with Regulation 2 of the Road Traffic Regulation, 1974. In Ghana, the aforementioned Form C is an instrument evidencing the transfer of interest in a vehicle.
From Exhibits A and C, it is clear that ownership of the vehicle was transferred from the judgment debtor to the claimant on 23rd October, 2014, before the same was attached in execution of the judgment debt on 25th November, 2014. The evidence suggests that at the time of the attachment the vehicle did not belong to the judgment debtor. With this, the judgment creditor had the reverse onus to rebut the prima facie evidence and prove that the motor vehicle belonged to the defendant/judgment debtor at the time the vehicle was attached. The judgment creditor, however, made a feeble attempt at discrediting Exhibits A and C. During cross examination, counsel for the judgment creditor suggested to the claimant as follows:
“Q. I suggest to you that Exhibit A and B (sic) were prepared purposely to evade the payment of your judgment debt.”
In answer to the above question the claimant stated: “It is not true.”
Apart from making a bald assertion that Exhibits A and C were somewhat concocted, the judgment creditor did not advance any evidence to show that the documents were indeed concocted in order to defeat the claim. On the contrary, the claimant’s evidence measured up to the standard required by law. The claimant led documentary evidence to prove that he purchased the vehicle prior to the purported attachment. In the circumstance, I conclude that the claimant managed to prove on a balance of probabilities that the Mercedes Benz with registration number AS 8672 Z is his motor vehicle.
In the result, the claimant’s claim to the attachment in execution of judgment dated 29/09/14 is hereby granted. The said Mercedes Benz vehicle with registration number AS 8672 Z as set out in the writ of fifa dated 25/11/14 issued by the Plaintiff/Judgment Creditor is declared not executable. Consequently, I order that the vehicle should be released to the claimant.
There will be no order as to cost.