E & CO. 383 FRANKLIN STREET BLOOMFIED NEW JERSEY 07003 USA v. ENCOL LIMITED and ORS
2016
COURT OF APPEAL
GHANA
CORAM
- AYEBI, J.A. (PRESIDING)
- TORKORNOO (MRS), J. A.
- DOMAKYAAREH (MRS), J. A.
Areas of Law
- Contract Law
- Property and Real Estate Law
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case involves a Plaintiff who obtained judgment against Defendants and attached property in execution. The Claimant argued joint interest in the property, leading to a trial where the judge sided with the Claimant. On appeal, the court overturned this decision, allowing the property to be attached and sold to settle the 3rd Defendant's debt, based on principles of severance and presumption of tenancy in common.
TORKORNOO (MRS), J.A.
The Plaintiff/Appellant in this matter sued three Defendants and obtained judgment.
He then attached H/No Plot 70, Block E, Kwadaso South, Kumasi in execution of the judgment.
The 1st Defendant/Judgment/Debtor had executed a mortgage over the property as security for the debt over which judgment had been obtained and this was ostensibly the reason why the Appellant attached the property.
The claimant Respondent filed a claim to the attached property on the ground that he had a joint interest in the property.
His position was that the property was willed to him, other siblings, and the 3rd Defendant/Judgment/Debtor by their father.
As such, the property could not be mortgaged by the 3rd judgment debtor acting through the 1st judgment debtor without his consent, and could not be disposed off in settlement of the 3rd Defendant/Judgment/Debtor’s debt because of his joint interest.
His claim was resisted by the Appellant and the competing claims were set down in an interpleader action and settled through trial.
After the trial, the judge gave his judgment setting aside the attachment.
The final paragraphs of the judgment, which were reproduced in the Appellant counsel’s submissions before this court are significant and I set them down here verbatim. ‘There is no evidence before me that after the property vested in the beneficiaries they went ahead to divide the vacant land which forms part and parcel of the house put up by their father among themselves.
I believe they did not do so in order to protect their joint interest in the remaining vacant land.
Thus each of the beneficiaries had equal right/interest in the vacant land.
This therefore means even though Susana had the right to put up the office complex on that portion of land she only has a life interest in same.
For this reason she should have sought the consent of the other beneficiaries before using same as security For this reason this court cannot carve out the office complex and order its sale in execution of the judgment For this reason I enter judgment for the Claimant’ Apart from my indication that these words are significant to the evaluation of the appeal, I do not much agree with Appellant counsel on the language, expressions and tenor of his submissions.
Cases in court are determined by the application of law to the issues of fact and law presented within the problems brought to court.
This is what distinguishes courts from other forums for discussing and r