BANK OF AFRICA LTD vs. GRACEFIELD MERCHANTS LTD, DR. KOFI RUBEN ATEKPE AND KOFI KWAKWA [MIKE TWUM BARIMAH AND ROBERT ALLEN-CLAIMANTS] [2020]DLSC8752

BANK OF AFRICA LTD vs. GRACEFIELD MERCHANTS LTD, DR. KOFI RUBEN ATEKPE AND KOF... [2020]DLSC8752

Date	2020-02-05
Suit No.	CIVIL APPEAL SUIT NO. J4/35/2016
Citation No.	[2020]DLSC8752

ANSAH JSC (PRESIDING)

DOTSE JSC

MARFUL-SAU JSC

DORDZIE JSC

AMEGATCHER JSC

SOMUAH ASAMOAH FOR THE PLAINTIFF/JUDGMENT/CREDITOR/ APPELLANT/APPELLANT.

FELIX QUARTEY FOR THE 1ST CLAIMANT/RESPONDENT/RESPONDENT.

JOHN F. APPIAH FOR THE 2ND CLAIMANT/RESPONDENT/RESPONDENT.

[2020]DLSC8752
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													<main id="main" class="content" style="min-height: 60rem" >BANK OF AFRICA LTD <o:p></o:p>vs. <o:p></o:p>GRACEFIELD MERCHANTS LTD, DR. KOFI RUBEN ATEKPE AND KOFI KWAKWA
[MIKE TWUM BARIMAH AND ROBERT ALLEN-CLAIMANTS] <o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

CIVIL
APPEAL SUIT NO. J4/35/2016&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: 5TH
FEBRUARY, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>SOMUAH ASAMOAH FOR THE PLAINTIFF/JUDGMENT/CREDITOR/
APPELLANT/APPELLANT.<o:p></o:p>FELIX QUARTEY FOR THE 1ST CLAIMANT/RESPONDENT/RESPONDENT. <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

JOHN F. APPIAH FOR THE 2ND CLAIMANT/RESPONDENT/RESPONDENT. <o:p></o:p>

</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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ANSAH
JSC (PRESIDING), DOTSE JSC, MARFUL-SAU JSC, DORDZIE JSC, AMEGATCHER JSC<o:p></o:p>

</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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</div>MARFUL-
SAU, JSC: -
<o:p></o:p>This appeal relates to interpleader proceedings
taken at the High Court, Accra. The brief facts of the case are that the
Appellant herein took judgment against the defendants in the original suit to
recover an amount of GHC 7, 526, 234.29, being the balance including interest on
a loan advanced to the defendants. In executing the judgment the Appellant
attached the property of the 2nd defendant which was used to secure
the loan. A Deed of Mortgage was executed by the Appellant and the 2nd
defendant on 4th May 2007. The record revealed that even though the
Mortgage was executed in 2007, it was used as security for the loan taken by
the defendants in the year 2010. Now, the 2nd defendant on the 11th
November 2008 assigned his interest in a portion of the property the subject of
the Mortgage to the 1st Claimant/ Respondent in this appeal. The 2nd
defendant again on the 8th of July 2009 assigned another part of the
mortgaged property to the 2nd Claimant/Respondent herein. The
Appellant then got the mortgage registered only in the year 2010 after the 2nd
defendant had assigned his interest in the properties to the 1st and
2nd Claimants herein.<o:p></o:p>Upon the attachment of the mortgaged property by
the Appellant, in execution of the judgment against the defendants, the 1st
and 2nd Claimants herein filed their respective claims which
resulted in this interpleader proceedings initiated by the Sheriff of the High
Court. The trial High Court in its judgment, found that the 1st and
2nd Claimants were innocent purchasers without notice and thus discharged the
properties from the attachment. The Appellant appealed to the Court of Appeal
and same was dismissed. The Appellant is now before this court praying that the
decision of the Court of Appeal be set aside on the following grounds:-<o:p></o:p>a. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The judgment of the Court of Appeal is against the weight
of evidence on record.<o:p></o:p>b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court of Appeal erred in holding that on the balance
of probabilities, the conclusions of the trial judge are reasonable and amply
supported by the affidavit evidence.<o:p></o:p>c. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court of Appeal erred in holding that the
Plaintiff/Appellant/Appellant cannot enforce the mortgage.<o:p></o:p>d. &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court of Appeal erred in holding that the
Plaintiff/Appellant/Appellant’s appeal lacked merit and dismissed it.<o:p></o:p>We observed that though grounds ( b),( c) and( d)
are incompetent in that no particulars&nbsp;
were provided for the alleged errors contrary to Rule 6 (2) (f) of the
Supreme Court Rules, CI 16, the said grounds are in substance the same as
ground <o:p></o:p>(a) since they all complain about the Court of
Appeal’s evaluation of the evidence on record. We will therefore address only
ground (a) in this judgment and even under the said ground (a), we intend to
deal with the issue whether or not the 1st and 2nd
Claimants/Respondents in the circumstances of this case were bona fide
purchasers for value without notice, since we find this to be the fundamental
issue in the appeal. In this judgment the 1st and 2nd Claimants/
Respondents shall be referred to simply as the Claimants and the 2nd
defendant who assigned his interest in the properties to the Claimants shall be
referred as such. <o:p></o:p>From the record of appeal, the plea put up by
Claimants as contained in their respective affidavit of interest is that they
are bona fide purchasers for value without notice. In the case of Hydrafoam
Estates (Gh) Ltd v. Owusu (per lawful attorney) Okine &amp; Others (2012-2014)
SCGLR 1117, this court held among others as follows: -<o:p></o:p>