LINK EXCHANGE MONEY LENDING LTD vs PAPA POKU SARPONG & ORS

Claimant herein filed a Notice of Claim on 29th March 2022 declaring his interest in House No. 12, Princess Street, Oyarifa, Accra which had been attached in execution of the judgment of this Court against Defendant Judgment Debtors.

Claimant herein contested the said attachment and is seeking an order for the release of the said property from attachment.

When both the Claimant and the Execution Creditor were summoned before the Court, the Court ordered Claimant to file his Affidavit of Interest and for the Execution Creditor to file its Affidavit of Dispute.

Although the Claimant complied with the said order by filing his Affidavit of Interest on 11th October 2022, the Execution Creditor failed to do so despite being given several opportunities by the Court.

CLAIMANT’S AFFIDAVIT OF INTEREST

Claimant’s case is that he is the owner of the attached property. That the said property is one of the houses he developed on a piece of land he leased from one Reverend Christopher Sowah Okpoti and Others on 20th November 2009.

That he developed these houses into an estate for the rental purposes and outright sales to interested persons.

That the 1st Defendant Judgment Debtor only came to live on the attached property as a tenant and has long vacated the said premises.

According to Claimant, 2nd and 3rd Defendant Judgment Debtors are unknown to him and have no interest whatsoever in the said property.

That because the Judgment Debtors are not the owners of the said property, the Court ought to order the release of the said property from attachment because it cannot be sold in satisfaction of the judgment obtained against them.

THE APPLICABLE LAW

The general position of the law in civil matters is that he who asserts must prove.

In the case of Okudzeto Ablakwa (No. 2) v Attorney General & Anor [2012] 2 SCGLR 845 @ 876, the Supreme Court had the following to say in respect of the burden of proof in civil matters:

“...if a person goes to Court to make an allegation, the onus is on him to lead evidence to prove that allegation unless the allegation is admitted. If he fails to do that the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish. This rule is further buttressed by section 17(b) which emphasizes on the party on whom lies the duty to start leading evidence.”

Order 44 rule 12 (1) of the High Court (Civil Procedure) Rules,