HARRIET OSEI BEMPOMAH vs. NOBLE DREAM FINANCIAL SERVICES LIMITED AND AFIA ACHIAA & 2 ORS. [2015]DLHC3544

HARRIET OSEI BEMPOMAH vs. NOBLE DREAM FINANCIAL SERVICES LIMITED AND AFIA ACHIAA... [2015]DLHC3544

Date	2015-11-16
Suit No.	SUIT NO.RPC/117/14
Citation No.	[2015]DLHC3544

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

NANA ASANTEWAA ATTAKORAH FOR PLAINTIFFS.

KOFI QUARSHIE SAM FOR DEFENDANT.

[2015]DLHC3544
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													<main id="main" class="content" style="min-height: 60rem" >HARRIET OSEI BEMPOMAH<o:p></o:p>vs.<o:p></o:p>NOBLE DREAM FINANCIAL SERVICES LIMITED AND AFIA ACHIAA &amp; 2
ORS.<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;
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SUIT NO.RPC/117/14&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 16TH NOVEMBER, 2015<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>NANA
ASANTEWAA ATTAKORAH FOR PLAINTIFFS.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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HER LADYSHIP 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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</div>The
instant interpleader application was filed by three claimants under order 44
rule 12(1) of the High Court ( Civil Procedure) Rules, 2004 C.I. 47 which
states:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 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 ...<o:p></o:p>How
did this come about? Judgment was entered against Noble Dream Financial
Services Ltd in favour of Harriet Osei Bempomaa by the Commercial Court,
Kumasi. As execution creditor, she sought leave to go into execution and
subsequently caused the subject matter of this suit, property numbered&nbsp; Plot 18 A Amakom Brampouso , Kumasi to be
attached. <o:p></o:p>On
29/12/2014, Afia Achiaa, John Agyekum and Philip Adade Acheampong instructed
their solicitors to file a notice of claim under Order 44 rule 12(1) of C.I.
47. Upon service of the&nbsp; said notice on
the execution creditor, she in turn caused her solicitors to file a notice to
dispute the claim on 12/12/2014. Thereafter, the Registrar of this court brought
an application under Order 44 rule 12(4) of CI 47 for an order calling upon the
claimants to prove their claims. Pursuant to an order granted by this court on
12/02/2015, the claimants and the execution creditor appeared in court for the determination
of the claimants ownership of the said property. The court gave directions
making the Claimants, Plaintiffs, and the execution creditor, the
defendant.&nbsp; By virtue of Order 32 rule 7A
of C.I. 47 as amended by CI 87, the parties were ordered to file their witness
statements.<o:p></o:p>This
is a civil action and so the rules regarding proof in civil suits apply, i.e.
prove by the preponderance of probabilities. From the facts of this case, the
Plaintiffs bear the onus of proof of ownership, having asserted ownership to
the property in&nbsp; issue. See Zambrama v
Segbedzi (1991) 2 GLR 221 CA ; Adwubeng v Domfeh (1996-97) SCGLR 660;&nbsp; Takoradi Flour Mills v Samir Faris
(2005-2006) SCGLR 883; Yaa Kwesi v Arhin Davis (
2007-2008) SCGLR 580; and Continental Plastics v IMC
Industries- Technik GMBH ( 2009) SCGLR 298 at 307.<o:p></o:p>The
1st Plaintiff gave evidence on her behalf and on behalf of the 2nd
&nbsp;Plaintiff , and the 3rd Plaintiff&nbsp; also testified.&nbsp; All the evidence given by the Plaintiffs fall
in line and it is as follows: The property in issue was first acquired by one
Kwadwo Nsiah as per a lease exhibited to the application. After his demise,
Letters of Administration were given to F.K. Agyekum and Kwabena Awuah (both
deceased).The 3rd &nbsp;Plaintiff,
Philip Adade Acheampong is the customary successor of the last administrator of
the estate of Kwadwo Nsiah i.e. Kwabena Awuah. The 1st and 2nd &nbsp;Plaintiffs are the wife and son respectively
of the late Kwabena Awuah. Kwabena Awuah shared rooms in the&nbsp; said house among family members, including
the 1st Plaintiff who has lived there all her life. <o:p></o:p>The
3rd &nbsp;Plaintiff was granted Letters
of Administration in respect of the estate of&nbsp;
Kwabena Awuah and the family agreed that he takes care of the property
in dispute. During the lifetime of Kwadwo Nsiah, he put up a mud house on a
portion of the land in dispute. After his demise, the 3rd Plaintiff's
brother put up six stores on a portion of the vacant land in front of the mud
house.&nbsp; The 3rd &nbsp;Plaintiff, with the consent of the family of
Kwadwo Nsiah, authorized&nbsp; one Oppong
Kyekyeku to negotiate with and&nbsp; enter
into an agreement with Noble Dream Financial Services&nbsp; Ltd in respect of a portion of the property
in issue. Subsequent&nbsp; agreements were
also executed between Noble Dream, and the said Oppong Kyekyeku.&nbsp; All the Plaintiffs admitted during
cross-examination that they are fully aware of the agreement between their
family and Noble Dream.<o:p></o:p><p</main>