EMMANUEL ASANTE vs. DANIEL KWADWO FORDJOUR AND FAUSTINA ASANTE [2017]DLHC4154

Date	2017-04-25
Suit No.	SUIT NO. INTS 32/2016
Citation No.	[2017]DLHC4154

DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT

JUDY EDUSEI FOR ASANTE KROBEA FOR THE CLAIMANT

OHENE AMANKWAH GYAN FOR THE DEFENDANT/JUDGMENT CREDITOR

[2017]DLHC4154
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													<main id="main" class="content" style="min-height: 60rem" >EMMANUEL ASANTE<o:p></o:p>vs.<o:p></o:p>DANIEL KWADWO FORDJOUR AND FAUSTINA ASANTE <o:p></o:p>[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. INTS 32/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 25TH APRIL, 2017<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>JUDY EDUSEI FOR ASANTE
KROBEA FOR THE 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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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;
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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>In this interpleader suit,
the claimant is contending that the property, Plot Number 102A Block H Bremang,
Nkwantwuma in Kumasi is her bona fide property, and cannot therefore be
attached in execution of the judgment debt of Emmanuel Asante, the
plaintiff/judgment debtor herein. The said Emmanuel Asante also happens to be
the husband of the claimant.<o:p></o:p>Judgment was given against
the judgment debtor by this Court and in execution of the judgment the property
(house) in dispute was attached. The claimant put in an interpleader, claiming
as already stated that she is the owner of the said house. According to the
claimant, she acquired the plot on which the subject matter is situate from the
Busumuru Stool represented by Nana Kwaku Duah II in the year 2008. Claimant
tendered in evidence, an allocation paper which she claimed was issued by the
Busumuru Stool.&nbsp; It was admitted and
marked Exhibit A. She stated further that after the acquisition she constructed
a building on the plot.&nbsp; She insisted
under cross examination that the property in dispute does not belong to the
plaintiff/judgment debtor even though the latter also lives in the said house.
She also told the court that she constructed the house from proceeds of her
fish and corn trade.<o:p></o:p>During cross examination,
counsel for the judgment creditor tendered Exhibits 1 and 2 through the
claimant. These exhibits are utility bills in respect of the property in dispute.
Both bills bear the name of the judgment debtor, Emmanuel Asante. Claimant however
explained that it was her husband, the judgment debtor who procured the meters
on her behalf and that she authorized him to use his name in the documentation.
She also stated that another reason why she authorized her husband to use his
name is because she is an illiterate and found it convenient for her husband to
go through the documentation process on her behalf.<o:p></o:p>Otuo Serebour was the only
witness called by the claimant. He told the court that the claimant acquired
the land in respect of the property in dispute from the Busumuruhene called
Nana Kwaku Duah II. He contended that he was an elder of the stool that granted
the plot to the claimant. He stated that he together with two other persons
called Agadas and Bungabozin went and showed the claimant the land. He
identified Exhibit A as the allocation paper issued by Nana Kwaku Duah II to
the claimant. He also identified the signature of the said Nana Kwaku Duah II.
He stated further that Nana Kwaku Duah II is dead and the current occupant of
the stool is called Nana Sarkodie II.<o:p></o:p>The defendant/judgment
creditor did not testify. He rather subpoenaed an officer of First Trust
Savings &amp; Loans Company Ltd. to testify. CW1, Samuel Dankwa tendered in
evidence Exhibit 4 which is a Credit Facility Agreement in respect of a loan
granted to Super G7 Company Ltd by First Trust Savings &amp; Loans. The
plaintiff/judgment debtor executed Exhibit 4 as a director and a third party
guarantor to the loan. Per the document he provided his Toyota corolla vehicle
as collateral to the loan. The judgment debtor also provided the address of the
disputed property as his address.<o:p></o:p>At the end of the summary
trial, both counsel were ordered to file their written addresses on behalf of
their clients. Counsel for the claimant duly complied with the court’s order
and filed her written address on 30/02/2017. Counsel for the judgment creditor,
however, failed to file any written address. This judgment is therefore
delivered without the input (in terms of written submission) of counsel for the
judgment creditor. <o:p></o:p>In her written address
filed on behalf of the claimant,counsel argued forcefully in a bid to
controvert the effect of Exhibits 1 and 2 (the utility bills). She submitted that
it is not strange that utility bills are paid in the name of a person other
than the property owner. In her estimation it is therefore not strange that
those bills are being paid in the name of the plaintiff/judgment debtor since
the claimant is his wife. <o:p></o:p>Counsel also debunked what
she perceived as the judgment creditor’s suggestion that per Exhibit 4 the
plaintiff/judgment debtor used the property in dispute as collateral for the
loan granted to Super G7 Company Ltd by First Trust Savings and Loans Ltd.
Counsel pointed out that the judgment debtor only gave the address of the
property in dispute as his address because he lives together with his wife, the
claimant in the disputed house.<o:p></o:p>