FIRST ATLANTIC BANK LTD. vs. FREDRICK KYEI ENT. AND OTHERS vs. BENJAMIN KYEI AND OTHERS [2010]DLHC8491

FIRST ATLANTIC BANK LTD. vs. FREDRICK KYEI ENT. AND OTHERS vs. BENJAMIN KYEI A... [2010]DLHC8491

Date	2010-07-26
Suit No.	SUIT NO. E12/23/07
Citation No.	[2010]DLHC8491

HIS LORDSHIP JUSTICE JACOB B. BOON

DENNIS ADJEI LEGAL CONSULT FOR CLAIMANTS

MUSAH MOHAMMED FOR THE PLAINTIFF

[2010]DLHC8491
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													<main id="main" class="content" style="min-height: 60rem" >FIRST ATLANTIC BANK LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>FREDRICK KYEI ENT. AND OTHERS<o:p></o:p>(DEFENDANTS)<o:p></o:p>vs.<o:p></o:p>BENJAMIN KYEI AND OTHERS<o:p></o:p>(CLAIMANTS)<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. E12/23/07&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 26TH JULY, 2010<o:p></o:p>

</div>COUNSEL:<o:p></o:p>DENNIS
ADJEI LEGAL CONSULT FOR CLAIMANTS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MUSAH
MOHAMMED FOR THE PLAINTIFF<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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HIS LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div>The plaintiff bank, herein simply called the plaintiff, obtained
judgment in an action against the defendants for the recovery of a loan
facility it granted them. In an effort to execute the judgment, some
properties, including plot Nos. 14 and 16 Amanfrom Barekese Road, said to be
owned by the defendants were attached. A warehouse and a yard are on these
plots of land. However, the claimants herein interpleaded alleging that they
have interest in the attached properties in that they were acquired by one
Benjamin Kofi Kyei, deceased, and that letters of administration of his estate
including the disputed properties had been granted to them as his personal
representatives. The first interpleader &nbsp;&nbsp;was filed on 10/5/06 in which the properties
were described as plot Nos. 24 and 26, Amanfrom, Barekese Road. It was however
discontinued on the 8/8/06 on the ground that the properties were wrongly
described. On the same day a fresh interpleader was filed by the same
claimants. &nbsp;&nbsp;The disputed properties were
described therein as plot Nos. 14 and 16 Amanfrom, Barekese Road. In both
interpleaders, the first claimant, one Benjamin Kyei, claimed absolute ownership
of a quantity of rice in the warehouse. Yet another interpleader was filed on
the 2/3/09, almost two and a half years, after the second was filed. This third
inter-pleader was filed inspite of the fact that the second one was not
discontinued. It was filed by three claimants as against eight claimants in the
previous two. They are, the first claimant in the earlier interpleaders who
retained that position, and who was described later in the evidence of Godfrey
Kwasi Kyei, the second claimant in the first two interpleaders, as the son of
late Benjamin Kofi Kyei the supposed owner of the attached properties. The
other two were the widow and customary successor of the said Benjamin Kofi
Kyei. In the evidence of Godfred Kwasi Kyei, he said the three claimants were
the personal representatives of Benjamin Kofi Kyei, having been granted joint
letters of administration by the Tepa Circuit Court to administer his estate.
The letters of administration (not with will annexed) was tendered at the
hearing by Godfred Kwasi Kyei on behalf of the claimants as exhibit ‘C’. True
to the evidence of Godfred Kwasi Kyei, the three claimants in the third
interpleader were the persons granted the letters of administration by the Tepa
Circuit Court. But there is a disturbing unanswered question as to why a Circuit
Court had the audacity to grant letters of administration in respect of an
estate the value of which was stated to be ¢1,720,000,000 (Old Cedis) in the
light of the clear provisions of section 42 (1) (a) (vii) of the Courts Act
1993, Act 459 that limit the jurisdiction of the Circuit Court in such matters
to a value not exceeding one hundred million old cedis? &nbsp;<o:p></o:p><o:p>&nbsp;</o:p>However, Exhibit ‘C’ is of high evidential value to this
court in the determination of the instant matter for two reasons. Firstly, in
the light of evidence introduced by the claimants that the family of late
Benjamin Kofi Kyei permitted Fredrick Kyei, one of the defendant / judgment
debtors, after the grant of exhibit ‘C’ to use the properties in issue for his
rice selling business, the date on which exhibit ‘C’ was granted is crucial, as
there appears to be other evidence which shows that before exhibit ‘C’ was
granted, the defendants were already in occupation and use of the properties.<o:p></o:p><o:p>&nbsp;</o:p>Secondly, evidence have been adduced that late Benjamin Kofi
Kyei was seen at the Asantehene Land Secretariat where he is said to have
presented allocation papers for the properties for processing. These allocation
papers are in evidence as exhibits ‘D’, and ‘E’ for plots 14 and 16
respectively. The exhibits were submitted to the Secretariat on 1/6/06, and the
allottee was told to check on them on the 15/6/06. The official from the Secretariat,
one Samuel Tuffour, a Lands Officer at the Secretariat, testified at the
hearing and said Benjamin Kofi Kyei personally submitted the exhibits. The
relevance of exhibit ‘C’ is that the date on which Benjamin Kofi Kyei passed
away is clearly stated therein to be 11th December,</main>