CHARLES OBENG POKU vs. JAMES BOATENG AND DENNIS YEBOAH [2016]DLHC4050

Date	2016-11-07
Suit No.	SUIT NO. INT 29/2015
Citation No.	[2016]DLHC4050

DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT

THEOPHILUS ACKOM BOADU FOR CLAIMANT

RIGHT OBENG MANU FOR THE PLAINTIFF/JUDGMENT CREDITOR

[2016]DLHC4050
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													<main id="main" class="content" style="min-height: 60rem" >CHARLES OBENG POKU<o:p></o:p>vs.<o:p></o:p>JAMES BOATENG AND DENNIS YEBOAH<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&nbsp;NO. INT 29/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 7TH NOVEMBER, 2016<o:p></o:p>

</div>COUNSEL
<o:p></o:p>THEOPHILUS ACKOM BOADU 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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</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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</div><p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
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line-height:115%;mso-pagination:none;mso-layout-grid-align:none;text-autospace:
none"><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
margin-bottom:0in;margin-left:0in;margin-bottom:.0001pt;text-align:center;
line-height:115%;mso-pagination:none;mso-layout-grid-align:none;text-autospace:
none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>The Claimant/Plaintiff in this
interpleader suit is contending that Mercedes Benz with registration number
AS-8672-Z is his bona fide property, and cannot therefore be attached and sold
in execution of the judgment debt of one James Boateng, the judgment debtor.<o:p></o:p>Judgment was given against the judgment
debtor by this Court and in execution of the judgment the vehicle in dispute
was attached. The claimant/plaintiff put in an interpleader, claiming as
already stated that he had already purchased the vehicle from the judgment
debtor before the same was attached. In his evidence, the claimant said it was
one Asuman who brought the car to a garage at Santasi Roundabout, Kumasi prior
to the purchase and that the vehicle was registered in the name of the Defendant/
Judgment Debtor. According to the claimant, they went to the Driver and Vehicle
Licensing Authority (DVLA) office at Obuasi for the vehicle to be transferred
into his name. Claimant tendered in evidence the Change of Ownership letter
addressed to the Principal Technical Officer, DVLA, Kumasi. It was admitted and
marked Exhibit A. The Form C (Transfer of Ownership form) covering the car was
also tendered in evidence and marked Exhibit C. He stated further that he was
in China when his father told him that the car had been attached in execution
of judgment of the Court.<o:p></o:p>William Asuman was the only witness
called by the claimant. He testified that the Defendant/Judgment debtor gave
the Mercedes Benz with registration number AS-8672-Z to him to assist in
selling the same. That he met the claimant who purchased it for GHC 20000. He
contended that claimant paid GHC 15000 to him and together with the judgment
debtor they advanced the money to the Plaintiff/ Judgment Creditor to defray
part of the debt. That a change of name in respect of the document covering the
car was subsequently effected.<o:p></o:p>The claimant instituted the instant
interpleader suit under Order 44 rule 12(1) of the High Court (Civil Procedure)
Rules, 2004 C.I. 47 which states:<o:p></o:p>“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 and shall include in the notice a
statement of the person’s address for service.”<o:p></o:p>My
understanding of the wording of Order 44 rule 12 as a whole is that property
attached in execution of judgment cannot be alienated without leave of the
court. It is immaterial whether or not the purchaser who bought the property from
the debtor had notice of that seizure, or even of the writ of execution. The
property involved must belong to the judgment debtor for the same to be
properly attached. <o:p></o:p>In an interpleader proceeding the
claimant must set out facts which constitute proof of ownership. The claimant
must prove on a balance of probabilities as required in civil trials that the
property is his or hers. Thus, in the case of Takoradi Flour Mills v. Samir Faris (2005/2006) SCGLR 882 at 900,
the court said:<o:p></o:p>“… in assessing the balance of
probabilities, all the evidence, be it that of the Plaintiff or the Defendant
must be considered and the party in whose favour the balance tilts is the
person whose case is the more probable of the rival versions and is deserving
of a favourable verdict.”<o:p></o:p>Also, in Ackah v. Pergah Transport Ltd (2010) SCGLR 728 @ 736 the Supreme Court
held:<o:p></o:p>