National Investment Bank v. Hannah Thompson and William Emyimah
2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP GEORGE K. KOOMSON ‘J’
Areas of Law
- Civil Procedure
- Evidence Law
- Property and Real Estate Law
- Probate and Succession
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
In a High Court interpleader proceeding presided over by His Lordship George K. Koomson, the court considered whether property No. F5/2, J. P Brown Street, Cape Coast could be attached to satisfy a judgment debt owed by Hannah Thompson. The execution creditor attached the property but failed to file an affidavit of interest or lead any evidence proving that the house belonged to Thompson. The claimant averred, supported by Cape Coast Municipal Assembly property-rate receipts (Exhibits A1–A4), that the house was constructed by Madam Betty Pearce (deceased) and became a family property of the Adwinadze family upon intestacy. Drawing on Appiah v Buaman, Fori v Ayirebi, and Takoradi Flour Mills v Samir Faris (including Tutu v Gogo), the court held the burden lies on the judgment creditor, accepted unchallenged averments, and ruled that third-party property cannot be attached. The claim was upheld, the Deputy Sheriff was directed to discharge the attachment, and no order as to costs was made.
In this interpleader proceedings.
The Execution Creditor attached property No. F5/2, J. P Brown Street, Cape Coast in satisfaction of judgment debt owed by one Hannah Thompson where the Execution Creditor and the Claimant appeared before the Court, the Court ordered the parties to file their respective affidavits of interest to enable the Court determine the right of the parties summarily.
The issue I have to determine is as to whether or not H/No. F5/2, J. P Brown Street, Cape Coast is a bonafide property of Hannah Thompson the judgment debtor for which the Execution Creditor can lawfully attach in satisfaction of the judgment debt of Hannah Thompson.
The Execution Creditor, it is noted failed to file its affidavit of interest. It is noted that an Execution Creditor, by law, can execute the judgment debt against properties belong to the judgment debt.
An Execution Creditor cannot purport to attach property belong to some other person in the name of executing a validly obtained judgment of a Court.
And to re-echo what the Court said in the case of APPIAH v BUAMAN (DCL 1948-1951), 222 at 224 were it was stated thus: “It would, in my opinion, be intolerable if a Judgment-Creditor were permitted to set the Sheriff in motion attach lands which he averred were the property of the Judgment-Debtor and then expect any person in possession of these lands to prove his title of possession.
In my judgment in such proceedings the issue between the Judgment-Creditor and the Claimant is that the former avers that the property is that of the Judgment-Debtor, an affirmative proposition in its entirety.
The Claimant denies that averment and sets up a plea of possession by right of title, and I am of the opinion that the burden of proof rests upon the Judgment-Creditor. ”In the instant case, the Execution Creditor failed to lead any evidence to establish that the property the subject matter of this interpleading proceeding belongs to Hannah Thompson the Judgment Debtor.
The claimant in his affidavit of interest dispose to the fact that the property in dispute was put up by Madam Betty Pearce (deceased) during her life time.
The said Betty Pearce(deceased) having died intestate the said property became a family property belong to Adwinadze family of Cape Coast. It is noted that this averment of the claimant has not been denied by the Execution Creditor.
To further support his claim, the claimant attach receipt of property rate issued in the name of Madam Betty Pearc