EASY INVESTMENT FOUNDATION vs. JANET AGYEMANG & ANOR. AND ABENA FREMAH [2013]DLHC3858

Date	2013-03-22
Suit No.	SUIT NO.INTS/14/12
Citation No.	[2013]DLHC3858

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

MR. WILLIAM KUSI FOR THE PLAINTIFF.

MR. PRINCE ATTA POKU FOR THE DEFENDANT.

[2013]DLHC3858
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													<main id="main" class="content" style="min-height: 60rem" >EASY INVESTMENT FOUNDATION<o:p></o:p>vs.<o:p></o:p>JANET AGYEMANG &amp; ANOR. AND ABENA
FREMAH<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">

SUIT NO.INTS/14/12&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: 22ND
MARCH, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR.
WILLIAM KUSI FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. PRINCE ATTA POKU FOR THE DEFENDANT.<o:p></o:p>

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

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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JUDGMENT<o:p></o:p>

</div>The Defendant herein obtained
judgment against one Janet Agyemang in a debt recovery action. The property
which is the subject matter of this interpleader suit had been used as
collateral security for the payment of a credit facility extended to the said
Janet Agyemang by Easy Investment. Following her failure to pay the judgment
debt, the Defendant herein sought leave of the court and attached this
property, described as House Number 52 Block ‘B’ Adiembra, Kumasi.<o:p></o:p>One Abena Fremah, who described
herself as a daughter of Janet Agyemang, initiated the instant application,
claiming ownership of the above mentioned property. Thus, the sole issue for
determination by this court is ownership of the property in dispute. In order
to effectively determine this issue, the court must resolve two matters: 1) Is
Janet Agyemang the same person as Abena Fremah whose name appears on the
allocation note in respect of the disputed property? 2) Is Janet Agyemang able
to read and write in English language?<o:p></o:p>Evidence was adduced on behalf of
the Plaintiff in this interpleader suit, Abena Fremah, by her brother who acted
as her lawful attorney. He gave his name to the court as Samuel Addo. The power
of attorney was admitted in evidence as exhibit A.&nbsp; His rather terse evidence is reproduced
below:<o:p></o:p>“I know Easy Investment Limited. I
am in court today because Easy Investment has attached my sister’s landed
document. Abena Fremah is my sister. They have attached her building in a suit
against Madam Janet Agyemang. Since that building does not belong to Janet
Agyemang, Easy Investment cannot attach the property. By that I mean Easy
Investment cannot take over the property. The document showing that the
building belongs to my sister, Abena Fremah ,has been handed over to Easy
Investment. My plea is what I have mentioned to the court. That is all.”<o:p></o:p>Janet Agyemang gave evidence on
behalf of the Plaintiff in this interpleader suit. Among other things, she told
the court that she obtained a loan from the Defendant Company and furnished it
with the title documents, exhibits 1 and 1A, which bear the name Abena Fremah.
She further testified that she cannot read and write; that she used the name
Janet Agyemang to apply for the loan even though the name on the title
documents is Abena Fremah.&nbsp; As to how PW1
obtained exhibits 1 and 1A, she said the following:<o:p></o:p>“ … The document was in the house
and I took it. I did not inform my daughter or seek her consent. Even though
the name on the site plan was different from the name on the loan application,
the Defendant did not raise questions.&nbsp;
When I went to the Defendants, the forms were already filled and I was
made to sign. No one read and explained the content to me. I have not been to
any commissioner for oaths. I have not appeared before any registrar in
connection with this loan. I know Benedicta Agyemang. She is my daughter. She
is also called Abena Fremah…”<o:p></o:p>In cross-examination, PW1 admitted
that on three previous occasions, she had used the same documents (exhibits 1
and 1A) to secure loans from the Defendant but managed to pay off those loans.
She also admitted that on all three occasions, she used the name ‘Janet
Agyemang’ on the loan application forms but the title documents used as
security bore the name Abena Fremah. She admitted appending her signature on
all the earlier loan application forms as well as the affidavit in support of a
motion filed by William Kusi, Esq. to set aside the default judgment.<o:p></o:p>PW2 testified in his capacity as a
signatory to exhibit 1. He described himself as an elder of the Adiembra stool who
prepares documents for purchasers of Adiembra lands.&nbsp; He told the court that Abena Fremah’s father
purchased the plot described in exhibit 1 for her. Under cross-examination, he
told the court that he did not know Abena Fremah’s father personally before the
land transaction and he cannot not remember&nbsp;
all persons he has dealt with in respect of sale of land in that area.
Again, he told the court that the Adiembra stool does not keep records of all
land purchases.<o:p></o:p>The Defendant’s representative gave
a detailed testimony with regards to the Defendant’s dealings with Janet
Agyemang. He testified that Janet Agyemang had provided the disputed property
as collateral to obtain loans on three or four occasions.&nbsp; Since the earlier loans were small, he told
the court that her store was used as collateral instead. He continued that when
Janet Agyemang applied for the last loan, which was comparatively huge, she was
questioned as to why the name on the title document was different. In response
to this, the Plaintiff’s representative said Janet Agyemang explained that she
is the same person called Abena Fremah and that Abena Fremah was the name given
to her by her father; which she changed to Janet Agyemang when she got married
to one Nana Agyemang Boadu, a cocoa purchasing clerk. She is said to have
further explained that she wanted the property to be in her own name to avoid
any issues with her husband. On the basis of that, the Defendant’s
representative said he directed Janet Agyemang to a Commissioner for oaths for
an affidavit of change of name to be prepared. She complied and returned with
exhibit B.&nbsp; Again, he testified that
further investigations revealed that in the past, Janet Agyemang won a case
against her hu</main>