KOFI OWUSU vs. BET EXPORT GHANA LTD. AND ALBERT KOBINA KOOMSON [2015]DLHC4216

Date	2015-10-23
Suit No.	SUIT NO. RPC 387/2007
Citation No.	[2015]DLHC4216

SAMUEL K. A. ASIEDU

MR. DANIEL ARTHUR FOR CLAIMANT

MR. SAMUEL CUDJOE FOR DEFENDANT

[2015]DLHC4216
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">KOFI OWUSU<o:p></o:p></a>vs.<o:p></o:p>BET EXPORT GHANA LTD. AND ALBERT KOBINA KOOMSON<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<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 387/2007&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
23RD OCTOBER, 2015 <o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>MR. DANIEL ARTHUR FOR CLAIMANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SAMUEL K. A. ASIEDU,
JUSTICE OF THE HIGH COURT<o:p></o:p>

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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</div>On the 8th day of September 2009,
Kofi Owusu, the plaintiff in this matter, caused a writ of summons to issue
against the defendant herein, Bet Exports (Gh) Ltd. The defendant filed a
statement of defence in which it also made a counterclaim against the
plaintiff. <o:p></o:p>Before the hearing of the matter, precisely,
on the 25th day of November 2009, the defendant obtained an order
for the interim preservation of “Next Door Hotel situate at Ekumfi Swedru on
the Mankesim Accra Road, Next Door Drinking Spot situate near Royal Palace
Hotel, Next Door Cold Store situate near Royal Palace Hotel, Unnumbered House
situate at Mankesim and KIA Trade Vehicle with registration number GE 7820 Z.
These properties were said to be owned by the plaintiff. The interim order was
to remain in force for a period of ten days.<o:p></o:p>It appears that the order for interim
preservation granted on the 25th November 2009 was modified and
expanded to cover an unnumbered house situate at Asene near Saviour Church.
This happened on the 2nd day of February 2010 when the court granted
an order for the preservation of the said properties pending the determination
of the case. <o:p></o:p>After the hearing of the case, the court
dismissed the plaintiff’s claim and entered judgment for the defendant on its
counterclaim. The defendant then sought to go into execution in order to
realize the fruits of its victory. It therefore attached certain properties,
purportedly, belonging to the plaintiff including a building which, for the
meantime, is being run as a Guest House. <o:p></o:p>It is instructive to remark that by his
application for a writ of fieri facias filed on the 19th June 2014,
counsel instructed the Sheriff to attach “All immovable property belonging to
the plaintiff”. The court is of the view that this instruction given by counsel
is very vague and ambiguous and that counsel should have gone ahead to specify
the very immovable properties of the plaintiff which he desires the Sheriff to
attach in execution in order to dispel all doubts about the nature of the
properties to be attached. <o:p></o:p>After the attachment, the claimant, Albert
Kobina Koomson, filed a Notice of Claim on the 11th September 2014
stating that he claims ownership, by way of purchase, of the piece and parcel
of land with buildings thereon, situate, lying and being at Pompomu Akwakrom
via Mankesim. The defendant judgment creditor disputed the claim of the
claimant and after an initial ruling by the court in respect of submission made
by counsel, the court set down for hearing the claims of the parties to the
attached property. <o:p></o:p>The claimant gave evidence at the trial and
called two witnesses to close his case. The defendant judgment creditor gave
evidence through its representative Tom Kwarteng Amaning and announced the
closure of its case.<o:p></o:p>From the evidence on record, it is not in
dispute and the court finds as a fact that the property in question originally
belong to the plaintiff Kofi Owusu. The court again finds as a fact that
currently, the property in question is run as a Hotel or a Guest House.
Further, the court finds that on the 7th day of June 2011, Kofi
Owusu, the plaintiff in this matter, agreed to sell and the claimant also agreed
to purchase “the land and the buildings and structures thereon situate, lying
and being at Pompomu Akwakrom via Mankesim.&nbsp;
The said agreement between Kofi Owusu and the claimant was reduced into
writing and received in evidence as exhibit 1 bearing stamp and numbered
LVD/CR/NL. 312B/2015. <o:p></o:p>The court finds that Albert Kobina Koomson
paid for the purchase of the property sold to him by issuing two cheques for
that purpose. First, a Ghana Commercial Bank cheque, exhibit ‘4A’ to UT Bank
for the sum of GH₵110,928.51 and
secondly, a Zenith Bank (Ghana) Limited cheque, exhibit ‘4’ to Kofi Owusu for
the sum of GH₵<span</main>