ECOBANK GHANA LTD (PLAINTIFF/J/CREDITOR) vs. ISAL TRAVEL & TOURS LTD & ANR. (DEFENDANT/J/ DEBITOR) VIVIAN SELORMEY (CLAIMANT) [2019]DLHC7127

ECOBANK GHANA LTD (PLAINTIFF/J/CREDITOR) vs. ISAL TRAVEL & TOURS LTD & ANR. (DEF... [2019]DLHC7127

Date	2019-05-31
Suit No.	SUIT NO: CM/INTD/0050/2018
Citation No.	[2019]DLHC7127

HIS LORDSHIP SAMUEL K. A. ASIEDU J

ADJEI NUAMAH ESQ. FOR PLAINTIFF/J/CREDITOR.

IRIS AGGREY OLEANS ESQ. FOR CLAIMANT.

[2019]DLHC7127
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													<main id="main" class="content" style="min-height: 60rem" >ECOBANK GHANA LTD<o:p></o:p>(PLAINTIFF/J/CREDITOR)<o:p></o:p>vs.<o:p></o:p>ISAL TRAVEL &amp; TOURS LTD &amp; ANR.<o:p></o:p>(DEFENDANT/J/
DEBITOR)<o:p></o:p>VIVIAN SELORMEY<o:p></o:p>(CLAIMANT)<o:p></o:p><o:p>&nbsp;</o:p>[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: CM/INTD/0050/2018 &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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:
31ST MAY, 2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p>ADJEI NUAMAH ESQ., FOR
PLAINTIFF/J/CREDITOR.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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IRIS
AGGREY OLEANS ESQ., FOR CLAIMANT.<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>On
the 7th May 2015, the plaintiff/ judgment /creditor herein obtained
judgment against the defendants/judgment /debtors in this matter namely: Isal
Travel and Tours Limited and Iain Atsu Selormey. The said judgment was a
consent judgment which was entered after the parties to the case had settled
the dispute between them and filed terms of settlement on the 30th
April 2015. <o:p></o:p>There
is evidence on record to the effect that after the service of entry of judgment
on the defendants and the failure of the defendants to pay the judgment debt,
the plaintiff caused to be attached certain immovable properties of the
defendants, however, the 2nd defendant moved the properties attached
from the offices of the 1st defendant at Osu before the plaintiff
judgment creditor could get those properties collected from the 1st
defendant’s office. As a result, the plaintiff caused to be attached, by way of
execution of the judgment obtained, House Number 36, Dade Link, North Labone,
Accra. Following the attachment of the House, claimant herein filed a Notice of
Claim in which she claimed an interest in the attached property. Again, Ghana
Home Loans Ltd also filed a Notice of claim in which they also claimed that the
House in question has been mortgaged to them by the owners of the property. The
Plaintiff disputed the claims hence, the court set down the matter for hearing
of the claims and took evidence from the parties accordingly.<o:p></o:p>From
the evidence given, the court finds that the claimant, Vivian Mamle Selormey,
is the wife of the 2nd defendant judgment debtor. The court also
finds that the said claimant has an interest in the property attached. Indeed,
there is evidence to the effect that she contributed substantially to the
acquisition of the attached property. She puts her interest in the property at
eighty per cent (80%). The court also finds that the said property had been
mortgaged by the owners to Ghana Home Loans as security for a facility which
the owners took in order to pay the purchase price of the House, as shown by
exhibits E, F and G. In view of these facts the claimants contends that the
House is not available to be attached in satisfaction of the debt owed by the
defendants, particularly, given the fact that the House in question has been
mortgaged to Ghana Home Loans and also that, it is the matrimonial property of
the couple in which the 1st claimant has a substantial interest. The
plaintiff disputes these assertions.<o:p></o:p>In
respect of the first question raised herein, it has been submitted on behalf of
the claimants that ‘the attachment of the property was wrongful as it failed to
recognise the security interest of Ghana Home Loans Limited (now GHL Bank) in
the property …. Once this mortgage acts as an encumbrance on the property, this
court in accordance with section 19 of NRCD 96, must give priority to it as it
was first in time to the attachment done in execution of the judgment by the
plaintiff.” Counsel therefore submitted that “there being a valid and
subsisting mortgage on the property, there is an encumbrance that would not
allow for the attachment of the property by the plaintiff”<o:p></o:p>The
court finds it difficult to go with the argument put forth by counsel for the
claimants. And the court cannot accept the submission that the existence of a
mortgage, which is an encumbrance on the attached property forbids the
attachment of the property in execution of the judgment obtained against the
defendants.<o:p></o:p>In
the Nigerian case of Saibu vs. Igbo
(1940) 16 NLR 92, the court pointed out that if a judgment debtor has an
interest in property as a tenant in common that interest so held may be
attached under a writ of fi fa.<o:p></o:p>Indeed,
Order 45 rule 4(1)(e) of the High Court (Civil Procedure) Rules, 2004, CI47 (as
amended) gives power to the plaintiff judgment creditor to attach properties in
which the defendant judgment debtor has an interest whether legal or equitable.
It provides that: <o:p></o:p>4.&nbsp;&nbsp;&nbsp;Methods of putting writ into
effect<o:p></o:p>(1)&nbsp;&nbsp;Subject to the other provisions of
this Order and to the provisions of any other enactment, a writ of fieri facias
shall be put into effect,<o:p></o:p>