VPS INTERNATIONAL vs. AFRICAN AUTOMOBILE LTD AND JIHAD HIJAZI [2018]DLHC3358

Date	2018-03-23
Suit No.	CIVIL APPEAL NO.RPC/195/2011
Citation No.	[2018]DLHC3358

SAMUEL K. A. ASIEDU JUSTICE OF THE HIGH COURT

SAMUEL K. ANDREWS ESQ. FOR PLAINTIFF/J/C.

STEPHEN SOWAH CHARWAY ESQ. THE CLAIMANT.

[2018]DLHC3358
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													<main id="main" class="content" style="min-height: 60rem" >VPS INTERNATIONAL<o:p></o:p>vs.<o:p></o:p>AFRICAN AUTOMOBILE LTD
AND JIHAD HIJAZI<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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO.RPC/195/2011&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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
MARCH, 2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SAMUEL K. ANDREWS ESQ.,
FOR PLAINTIFF/J/C.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</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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JUDGEMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>In
the execution of the judgment delivered in favour of the plaintiff on the 10th
July 2012 by the High Court, the plaintiff/judgment/creditor attached the
property commonly known as Mitsubishi House situate along the Kaneshie-Winneba
Road, Accra. The said attachment was done per notice of attachment dated 29th
August 2016.<o:p></o:p>As
a result, the claimant herein, Jihad Hijazi, filed a notice of claim, in
accordance with Order 44 rule 12 of the High Court (Civil Procedure) Rules,
2004, CI 47, to this property which had been attached in execution of the
plaintiff’s judgment claiming the said property to be his and thereby
contending that the property could not be sold to satisfy the judgment debt of
the defendant judgment debtor. <o:p></o:p>The
plaintiff judgment creditor disputed the notice of claim and therefore paving
the way for the court to invite the parties to appear before it in order that
the issue of ownership of the attached property would be resolved in accordance
with the provisions of Order 44 rule 13 of the Rules of the High Court.<o:p></o:p>At
the hearing of the matter, the Claimant gave evidence and announced the closure
of his case after which the plaintiff/ judgment creditor also testified per its
representative.<o:p></o:p>From
the evidence on record the court finds that the attached property was
originally owned by the father of the claimant, Mohamed Shafic Hijazi. This
finding of fact is amply supported by exhibits A, B and C which was tendered by
the claimant and admitted in evidence by the court. The said exhibits show that
Mohamed Shafic Hijazi has been a lessee of the attached property since the 18th
of February 1985 as evidenced by a Lease between Joseph Asai Darku as the
lessor and the said Mohamed Shafic Hijazi bearing Deeds Registry Number
2683/1985 and stamped as AC182B/85.<o:p></o:p>There
is evidence on record to the effect that subsequent to the lease, the lessee
Mohamed Shafic Hijazi transferred, per exhibit B herein, the unexpired term of
the said lease to his son, Jihad Hijazi, who proceeded, thereafter, to register
the said lease and obtained Land Certificates as depicted by exhibits D and E.<o:p></o:p>The
representative of the plaintiff/judgment/creditor who gave evidence as having
worked as a director of the defendant/judgment/debtor from the period 1994 to
the year 2010 testified to the effect that it was never mentioned, during the
period of his employment with the defendant/judgment/debtor, that the attached
property was owned by Mohamed Shafic Hijazi the father of Jihad Hijazi who was
at that time the managing director of the defendant/judgment/debtor company.
The plaintiff’s representative however admitted that he has no documents to
support the plaintiff’s allegation that the attached property belong to the
defendant/judgment/debtor.<o:p></o:p>Sections
14 and 17 of the Evidence Act 1975, NRCD 323 states in no uncertain terms that<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 14.&nbsp;&nbsp;&nbsp;Allocation
of burden of persuasion<o:p></o:p>Except as otherwise provided by law, unless it is
shifted a party has the burden of persuasion as to each fact the existence or
non-existence of which is essential to the claim or defence that party is
asserting.<o:p></o:p>17.&nbsp;&nbsp;&nbsp;Allocation of burden of producing
evidence<o:p></o:p>Except as otherwise provided by law,<o:p></o:p>(a) the burden of producing evidence of a
particular fact is on the party against whom a finding on that fact would be
required in the absence of further proof;<o:p></o:p>