JESUS IS EVERGREEN LIMITED vs. FRANK ABOAGYE AND MR. BERNARD ANTWI & ANOTHER [2013]DLHC3872

Date	2013-10-31
Suit No.	SUIT NO.INTS/23/12
Citation No.	[2013]DLHC3872

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

WILLIAM KUSI FOR THE PLAINTIFFS.

OBENG MANU JNR. FOR THE DEFENDANT

[2013]DLHC3872
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >JESUS IS EVERGREEN
LIMITED<o:p></o:p>vs.<o:p></o:p>FRANK ABOAGYE AND MR.
BERNARD ANTWI &amp; ANOTHER<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/23/12&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;&nbsp;DATE: 31ST OCTOBER, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>WILLIAM KUSI FOR THE
PLAINTIFFS.<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>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

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

</div>The Plaintiffs herein commenced the
instant interpleader action against the Defendant herein when the property described
as house number 26 Block “FI”, Brofoyedru in the Atwima Kwanwoma District was
attached in execution of a judgment debt by the Deputy Sheriff.<o:p></o:p><o:p>&nbsp;</o:p>How did this judgment debt
arise?&nbsp; Jesus is Evergreen Limited, the
Defendant herein, obtained judgment against one Frank Aboagye in an earlier
suit. The said Frank Aboagye refused to pay this judgment debt and the company
attached the property in dispute under the pretext that it is the property of
Frank Aboagye.<o:p></o:p><o:p>&nbsp;</o:p>The issue before this court is
whether or not house number 26 Block “FI” is the property of the Plaintiffs
herein. <o:p></o:p>The burden of proof is on the
Plaintiffs.&nbsp; Thus, they are required
under sections 11(4), 12 (1) and (2) of the Evidence Act, 1975 NRCD 323, to
introduce evidence of title so that on the balance of probabilities, it could
be reasonably inferred that the property belongs to them.<o:p></o:p><o:p>&nbsp;</o:p>The Supreme Court in the case of
Mondial Veneer (GH) Ltd v Amuah Gyebu XV (2011) SCGLR 466 underscored the need
to prove root of title in land litigation.&nbsp;
At page 475 of the report, Georgina Wood CJ, stated:<o:p></o:p>“In land litigation, the law
requires the person asserting title, and on whom the burden of persuasion
falls, as in this case, to prove the root of title, mode of acquisition and
various acts of possession exercised over the subject-matter of litigation.”<o:p></o:p><o:p>&nbsp;</o:p>The lawful attorney of the
Plaintiffs testified at the trial.&nbsp;
According to him, the 1st Plaintiff who is ordinarily
resident overseas expressed interest in buying this property. He went ahead to
buy the house and documents were given to him. Notable among the documents he
tendered are allocation notes dated 17/04/2004 (exhibit B) and a receipt
evidencing a sale dated 23/04/2009 (exhibit F). Further, he stated the purchase
price of the property as GHc 76,000 which has been paid in full to the
Plaintiffs’ vendor. <o:p></o:p><o:p>&nbsp;</o:p>The Plaintiffs’ vendor by name James
Manu Donkor also testified. He told the court that the land was originally
acquired by him as evidenced by exhibits B and C. He then obtained a building
permit from the Kuntanase Bosomtwi District Assembly subsequent to which he put
up the disputed property.&nbsp; Continuing,
PW1 said he intended to live in this house personally but due to financial
constraints, he decided to sell it. In March 2009, PW1 said he caused the
property to be valued. A copy of the valuation report was tendered as exhibit
G. With regards to payment, PW1 said initially, the Plaintiffs made a part
payment and the balance was paid to him later. Concluding, he tendered a
statutory declaration; exhibit H, which shows that the property now belongs to
the Plaintiffs.<o:p></o:p><o:p>&nbsp;</o:p>The evidence of PW1 was not
challenged by the Defendant. Two adjournments were given to enable the
Defendant to state its case. On 16/09/2013, one Isaac Boateng represented the
Defendant in court and indicated that the person who was to give evidence on
behalf of the Defendant had taken his child to school. On 30/09/2013 when the
case was called, the Defendant and its lawyer were absent without reason. Thus,
the court took the view that the Defendant was unwilling to participate in the
trial at this point. A date was then set for judgment.<o:p></o:p><o:p>&nbsp;</o:p>I have no doubt in my mind that PW1
is the James Manu Donkor referred to in exhibits B, C, D, E,F and H.&nbsp; Exhibit B shows that plot number 26, FI was duly
allocated to James Manu Donkor. A site plan, building permit and drawings of
the disputed house all bear his name. The disputed house was built on the plot
which was allocated to James Manu Donkor in exhibit B. A statutory declaration
was made as far back as 29/06/2009 in respect of the transfer of this property
to the 2nd Plaintiff. I notice from exhibit F that the initial part
payment was made by Mr. and Mrs. Antwi and sons. However, the property was
transferre</main>