PETER OTU (PLAINTIFF/J/CREDITOR) vs. GEORGE OTI- BONSU (DEFENDANT/J/ DEBITOR) EDMUND K. BIMPONG (CLAIMANT) [2019]DLHC7136

PETER OTU (PLAINTIFF/J/CREDITOR) vs. GEORGE OTI- BONSU (DEFENDANT/J/ DEBITOR) ED... [2019]DLHC7136

Date	2019-03-01
Suit No.	SUIT NO: RPC/283/11
Citation No.	[2019]DLHC7136

HIS LORDSHIP SAMUEL K. A. ASIEDU J

STEPHEN S. CHAWAY ESQ. FOR CLAIMANT.

[2019]DLHC7136
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													<main id="main" class="content" style="min-height: 60rem" >PETER OTU<o:p></o:p>(PLAINTIFF/J/CREDITOR)<o:p></o:p>vs.<o:p></o:p>GEORGE OTI- BONSU<o:p></o:p>(DEFENDANT/J/ DEBITOR)<o:p></o:p>EDMUND K. BIMPONG<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: RPC/283/11&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 1ST MARCH, 2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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STEPHEN
S. CHAWAY 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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</div>In
this matter, the defendant obtained judgment against the plaintiff on the 7th
February 2014. Thereafter, the defendant sought to go into execution in respect
of the judgment and so the defendant caused the Sherriff of the court to attach
House Number RP/13/V/29, situate at Daisy Avenue, Church Close, Sakumono, Tema.
Subsequently the house was advertised for sale by the auctioneer.<o:p></o:p>As
a result, the claimant filed a Notice of Claim on the 22nd day of
November 2018 in which he claimed the attached property as his. The defendant
execution judgment creditor filed a Notice of Dispute to the plaintiff’s claim
for which reason the Registrar of the court procured an order for the parties
to appear before the court to enable the dispute between them to be heard.
Hearing notice was served on the parties to attend court but for no apparent
reason, the defendant execution judgment creditor and his lawyer failed to
attend the court notwithstanding the service on them of hearing notice on the
20th February 2019 giving them notice of the hearing of the case on
the 25th February 2019. <o:p></o:p>It
would be noticed that Order 44 rules 12 and 13 of the High Court (Civil
Procedure) Rules, 2004, CI 47 whiles providing for the procedure to be taken by
the court in a situation where the claimant fails to appear after service of
notice to come to court, the rules do not make provisions on the steps to be
taken by the court where the claimant appears but the execution creditor rather
fails to show up. This court therefore decided to hear evidence from the
claimant who appeared at the trial. <o:p></o:p>Evidence
was given by one Ama Bimpong on the strength of a power of attorney, exhibit A
herein, which was donated to her by the claimant Edmund K Bimpong, the husband
to the attorney. <o:p></o:p>From
the evidence on record, especially exhibits F, G and H herein, the court finds
that the judgment debtor was a tenant in the attached House Number RP/13/V/29,
situate at Daisy Avenue, Church Close, Sakumono, Tema. The court finds from
exhibit B and C and D that the plot of land on which the said house is situate
was the subject matter of a lease to the claimant on the 1st
February 1994 from the Tema Development Corporation to the claimant in the
instant matter. There is ample evidence on record, particularly from exhibit “E”
and “E1” showing the payment of Ground Rent by the claimant to the Tema
Development Corporation. <o:p></o:p>The
court is therefore satisfied that the House in question is not the property of
the plaintiff judgment debtor which could be attached in satisfaction of a debt
owed by him to the defendant judgment creditor. In fact there is enough
evidence to support the finding that the attached property is owned by the
claimant in this matter. Judgment is therefore entered in favour of the
claimant against the execution judgment debtor. Consequently, the Registrar of
the court is hereby ordered to release, forthwith, the said house from
attachment to enable the claimant enjoy peaceful possession of his property.
Cost of GH₵5,000.00 is
awarded the claimant against the execution judgment creditor. <o:p></o:p>

<o:p>&nbsp;</o:p></main>