GH - FLOKIDS COMPANY LIMITED v. GABRIEL AMOATENG (ALHAJI)

Background

The Plaintiff/Judgment Creditor (hereafter to be called “Plaintiff”) secured a judgment

on 23rd June, 2022 against the Defendant/Judgment Debtor (hereafter to be called

“Defendant”) for the payment of a liquidated amount. Following the judgment the

Plaintiff initiated execution processes and subsequently attached a Nissan Pathfinder

vehicle with registration number AS 8670-11 purported to belong or was in the

possession of the Defendant.

Following the attachment, the Claimant on 15th September, 2022 and in line with Order

44 rule 12 (1) notified the Registrar of his claim over the said vehicle levied in execution.

Unsurprisingly, the Plaintiff disputed the claim and in accordance with Order 44 rule 12

(2) gave notice of her intention to dispute on 14th October, 2022. The Court on 17th

November, 2022, after the close of the processes set the matter down for summary

determination and took evidence from the parties in support of their respective claims.

The Trial

The sole question for trial to my mind is whether or not the disputed vehicle belongs to

the claimant. The Claimant and the Plaintiff representative both testified in court. None

of them called any witnesses to their aid.

On the totality of the evidence led by the parties, I find that it has not been disputed by

the claimant that the disputed vehicle was recovered directly from the possession of the

Defendant and no other person. Accordingly, I hold the considered view that since the

claimant is claiming “ownership, interest and right in and over” the disputed vehicle,

then the onus would be him to put before this court credible evidence to establish the

existence of this fact on the balance of probabilities. Indeed, it was for this reason that

the claimant was ordered to testify first as the plaintiff.

My order to saddle the claimant with the burden of persuasion is consistent with

section 17(1)(a) and (b) of the Evidence Act, 1975 (NRCD 323) as follows:

17. Allocation of burden of producing evidence

Except as otherwise provided by law,

(a) the burden of producing evidence of a particular fact is on the party

against whom a finding on that fact would be required in the absence of

further proof;

(b) the burden of producing evidence of a particular fact is initially on the

party with the burden of persuasion as to that fact.

In explaining the application of this provision, the Supreme Court in the case of

Okudzeto Ablakwa (No 2) v & Another v Attorney Gene