AGRICULTURAL DEV. BANK LTD. vs WEBB BUILDERS LTD. & ANOR.

MOTION ON NOTICE TO SET ASIDE WRONGFUL ATTACHMENT OF PROPERTY IN EXECUTION OF JUDGMENT

This is a motion on notice to set aside wrongful attachment of property in execution of judgment which was filed on 24th June 2022.

I have read through the Motion Paper, Affidavit in Support and attached Exhibits as well as the Supplementary Affidavit in Support.

I have also carefully considered the various submissions made by both Counsel in moving and in opposing the instant application.

The main grounds for the instant application is that the property described as a house with GPS No. GD-159-5526 which has been attached in execution of the judgment of this Court was not used as a collateral to secure the loan facility granted 1st Defendant/Judgment/Debtor by the Plaintiff/Judgment/Creditor/Respondent (Respondent) with 2nd Defendant/Judgment/Debtor signing an unlimited contract of Indemnity guaranteeing repayment of the said loan facility in case of default.

The grounds for opposing the instant application is that although the said property which is alleged to be a matrimonial property of one Jasmine Adu-Poku and 2nd Defendant/Judgment/Debtor/Applicant was not used as collateral to secure the said loan facility, its attachment in execution of the said judgment of the Court is not wrongful as long as 2nd Defendant/Judgment/Debtor/Applicant has an interest in same.

It is important to note that on 26th March 2020 a Notice of Claim in respect of the said property filed by of one Jasmine Adu-Poku claiming title to the said property.

Written Submissions on behalf of both parties have been filed in compliance with the Court’s order in respect of that interpleader action.

This Court is of the opinion that the judgment in the said interpleader proceedings will effectively determine the main issue being raised in the instant application which is whether or not the property which is alleged to be a matrimonial property is capable of being attached in execution of the judgment of this Court.

The issue of whether or not the said property was used as a collateral to secure the loan facility does not arise here. This is because Plaintiff/Judgment/Creditor Respondent’s contention has never been that the said property was used as collateral for the said loan facility.

To the extent that this Court in the yet to be delivered judgment in the interpleader proceedings will effectively determine the issue of whether or not the said property is capable of being attached in executio