EASY INVESTMENT LIMITED vs. KOFI ASANTE FREMPONG AND NANA ASANTE FREMPONG [2012]DLHC3859

Date	2012-07-09
Suit No.	NO.INTS/05/11
Citation No.	[2012]DLHC3859

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

MRS. DOREEN ADOMA AGYEI FOR THE PLAINTIFF.

MR. PRINCE ATTA POKU FOR THE DEFENDANT.

[2012]DLHC3859
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">EASY
INVESTMENT LIMITED<o:p></o:p></a>vs.<o:p></o:p>KOFI ASANTE FREMPONG AND NANA ASANTE FREMPONG<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

NO.INTS/05/11&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 9TH JULY, 2012<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MRS.
DOREEN ADOMA AGYEI FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

ANGELINA MENSAH-HOMIAH (MRS.)
JUSTICE OF THE HIGH COURT<o:p></o:p>

JUDGMENT<o:p></o:p>

</div>In this inter pleader suit, the
Plaintiff is claiming ownership of a Kia Pregio van with registration number AS
3730-10 which has been attached by the Defendant in execution of a judgment
debt.<o:p></o:p>The brief facts of this action are
these: The Plaintiff herein describes himself as the sole proprietor of Kwabre
Distribution Agency and the Defendant is also described as a micro credit
institution. One Kofi Asante Frempong who is the biological son of the
Plaintiff applied for and was given a credit facility by the Defendant.&nbsp; Kofi Asante Frempong used the vehicle
referred to, supra, as security for the loan and in fact assigned the vehicle
to the Defendant who is now disputing the Plaintiff’s title to the said
vehicle. Kofi Asante Frempong defaulted in repayment of the loan and a judgment
was subsequently obtained against him.<o:p></o:p>Having considered the facts giving
rise to this suit, I think the main issue for determination is whether or not
the transfer of title of Kia Pregio with Registration number AS 3730-10 by Kofi
Asante Frempong to the Defendant is valid?<o:p></o:p>This issue can only be effectively
resolved if the court determines the ownership of the said vehicle before it
was allegedly transferred to the Defendant<o:p></o:p>In his evidence before this court,
the Plaintiff stated that Kwabre Distribution Agency is a sole proprietorship
and he has been the managing director from its inception. He added that the
vehicle in dispute belongs to him in his capacity as the sole proprietor. This
piece of evidence was corroborated by PW1. To make his case more convincing,
the Plaintiff tendered the registration of business name documents of Kwabre
Distribution Agency as exhibit A. The customs and transfer of title documents
to Kwabre distribution Agency were also tendered as exhibits B, B1 to B8. The
Plaintiff testified that Kwabre Distribution Agency has never dealt with the
Defendant nor has it authorized anyone to transact business on its behalf with
the Defendant. In the Plaintiff’s view, the seizure of the vehicle is illegal
and prayed for its immediate release.<o:p></o:p>As to be expected, the Defendant
denied the Plaintiff’s case entirely on the ground that the said vehicle
belonged to Kofi Asante Frempong. The Defendant’s representative who gave
evidence in court narrated how Kofi Asante Frempong obtained the loan after
providing the requisite security.&nbsp; He is
the General Manager of the Defendant Company. According to him, Kofi Asante
Frempong filled the loan form and provided the guarantors. As part of the
conditions, Kofi Asante Frempong was required to provide security either in the
form of landed property or motor vehicle. In furtherance of this requirement,
Kofi Asante Frempong is said to have taken two vehicles to the Defendant’s
premises together with the documents covering them. The Plaintiff’s
representative said the disputed vehicle is one of the vehicles brought to them
by Kofi Asante Frempong. He tendered the document covering the first transfer
of the vehicle to Kwabre Distribution Agency as exhibit 1 and the transfer of
title document from Kofi Asante Frempong to Easy Investment as exhibit 2.&nbsp; His contention was that Kofi Asante
Frempong’s signature appears on both exhibits 1 and 2 as the new owner and
present owner respectively. In addition to these, the Defendant’s
representative testified that Kofi Asante Frempong swore an affidavit and also
executed a document authorizing the Defendant to sell the vehicle if he failed
to pay on time. These documents were tendered as exhibits 3 and 3 A. Having
obtained judgment against Kofi Asante Frempong for defaulting to pay off the
loan, the Defendant’s position is that per the documents executed by Kofi
Asante Frempong, they are the legal owners of the disputed vehicle and are
entitled to dispose it off.<o:p></o:p>Exhibit B3, which is the same as
exhibit 1, is the Driver and Vehicle Licensing Authority&nbsp; (hereinafter referred to as DVLA) Form C
transferring title from the original owner, Yaw Boateng, to Kwabre Distribution
Agency. This was done on 16/02/2010. On the face of exhibit B3, ownership of
the disputed vehicle was vested in Kwabre Distribution Agency as of 16/02/2010.
Who is Kwabre Distribution Agency? From the Plaintiff’s evidence, particularly,
exhibit A, it is a sole proprietorship business registered by the Plaintiff.
Having registered Kwabre Distribution Agency under the Registration of Business
Names Act, 1962, Act 151, the Plaintiff qualified to carry on business under
the name&nbsp; as the only owner. He bears all
the liabilities and debts, if any, of that business venture. In the same
manner, he owns all the assets of Kwabre Distribution Agency. The Defendant
never tendered any document to show that Kofi Asante Frempong is the registered
owner of Kwabre Distribution Agency. A business name registered under Act 151
does not confer any distinct legal personality on the owner. <o:p></o:p>A case in point is Barclays Bank of
Ghana Ltd v Lartey (1978) GLR 282. The High Court, per Wiredu J. (as he then
was) held that:<o:p></o:p>“ Unlike Act 179, the Registration
of Business names Act, 1962 ( Act 151) , was not intended to confer any
distinct legal personalit</main>