Foshan Oceanland Ceramics Co. Ltd Vrs Adjei & Another [2023] GHAHC 221 (1 February 2023)

Page 1 of 16 IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE (COURT 1) HO HELD ON WEDNESDAY 1 FEBRUARY 2023 BEFORE JUSTICE GEORGE BUADI, J FOSHAN OCEANLAND CERAMICS CO. LTD } …. PLAINTIFF SUIT NO. E1/31/2022 Versus 2 PATIENCE OWUSU ADJEI HO SHUAIB LAWAL } } …. 1ST DEFENDANT …. 2ND DEFENDANT JUDGMENT Background The suit is interpleader proceedings arising from an earlier suit Foshan Oceanland Ceramics Co. Ltd v Edland Tech (Gh) Ltd before this court.1 The reliefs Plaintiff sought in that suit were upheld. Seeking to execute the judgment against defendant Edland Tech (Gh) Ltd, Plaintiff realised that the judgment debtor was no longer in good business, as its offices has been taken over by tenants. Upon application, the court, pursuant to the Companies Act, 2019 (Act 992) s.147 and 148(1)(a) pierced and lifted the veil of the corporate personality of the defendant debtor, which enabled the plaintiff to attach the directors of the judgment debtor company Edland Tech (Gh) Ltd including Edward August Gbeblewu (EAG) personally with liabilities and responsibilities of the defendant judgment debtor company, Edland Tech (Gh) Ltd. Upon discovery that Edward August Ggeblewu (EAG) a director of the judgment debtor company Edland Tech (Gh) Ltd is the lessor of an ‘Unnumbered Commercial Suit No. E2/26/2019 1 | P a g e Page 2 of 16 Property and metal container Annex at Raymakosa Traffic Light, Ho’, the Plaintiff sought to execute the judgment by attaching the said property that it believed to be owned by EAG. It is the attachment of the property2 by the Deputy Sheriff that prompted this suit. The Claimants herein, Patience Owusu Adjei and Shuab Lawal, filed notices of claim averring that the property3 does not belong to the judgment debtor EAG. Whilst the 1st Claimant claims ownership of the property, the 2nd Claimant claims that he is a lessee whose interest is subsisting and thus encumbers the attachment and any judicial sale that could arise therefrom. Unable to summarily determine the issue of ownership of the property, the court directed the parties to get the issue to be tried fully between the judgment creditor and the Claimants as provided under the High Court (Civil Procedure) Rules, 2005 Order 48 Rule 8. The judgment creditor plaintiff chose to issue a fresh writ against the Claimants, the Defendants herein who I shall conveniently refer to, still as the Claimants. Parties’ case Plaintiff judgment creditor avers that the claim per the affidavit of interest filed by the 1st Claimant was concocted and untruthful when she claimed that her mother’s mother was Lucia Tolovi Adjei. According to the Plaintiff, Lucia Tolovi Adjei was rather the 1st Claimant’s father’s mother and the name Adjei that is ascribed to Lucia Tolovi Adjei, as well as 1st Claimant’s husband is only a coincidence as Lucia Tolov Adei and 1st Claimant’s husband are from Adukrom and that they have no common ancestry. Plaintiff says that it is not true that any such land with a switch Unnumbered Commercial Property and metal container Annex situated at Raymakosa Traffic Light, Ho 2 | P a g e Page 3 of 16 building was ever mortgaged by anyone let alone the redemption thereof by the Claimant’s grandmother. Plaintiff maintains that the subject matter land did not belong to the 1st Claimant’s mother’s mother but rather the Claimant’s father’s mother and so 1st Claimant could not appropriate the land for herself on bare facts that she has in her custody the declaration of her father’s mother on the property. Concerning the 2nd Claimant, Plaintiff avers that it is untenable for him to contend that the court cannot order for judicial sale of the property on grounds barely that he has an unexpired lease on the property. According to the Plaintiff, this was the initial claim of the 2nd Claimant but is now claiming that the subject matter property is located on a proposed road. Plaintiff contends that this claim has no basis, as the proposal had long been abandoned for over fifty years now and that the subject matter property is located along the same stretch of land with other magnificent buildings and metal containers. Plaintiff contends that the Claimants are being used by the judgment debtor in the earlier Suit No. E2/26/2019 to frustrate the Plaintiff from enjoying the fruits of its victory in the suit, and therefore per the writ of summons dated 17 January 2022 seeks the following reliefs: a A declaration of the Court that the land with the container the subject matter of the suit is not the property of the 1st Defendant. b A declaration of the Court that the 2nd Defendant’s interest is only limited to his lease and does not make him the owner of the subject matter. c A further declaration that any purchaser of the subject matter buys same subject to the 2nd Defendant’s lease. An order of the Court for the judicial sale of the subject matter. General damages. d e 3 | P a g e f Costs including legal fees. Page 4 of 16 In her defence, the 1st Claimant maintains per her notice of claim that the property in issue was originally the property of Abotsi Adzei, her paternal uncle’s maternal grandmother who inherited the house of her uncle. The said uncle had a son who left for Nigeria and never returned. 1st Claimant states that her mother Adzowa died early hence she was brought up by her grandmother Lucia Tolovi Adzei who in 1989 handed over the document of the house to her and migrated to her hometown in Atiteti near Wheta where she died in 1990. 1st Claimant's case is that she shares the house with her half-brother Edward August Gbeblewu, the founder of Edland Tech Limited, the judgment debtor, contending that the land is not the property of the judgment debtor4 and cannot, therefore, be properly attached for judicial sale to satisfy his judgment debt. 2nd Claimant denies Plaintiff's claim and contends that he is “a [subsisting] lessee of Defendant Judgment Debtor in the Ho High Court Suit No. E2/26/2019”5 and that the lease was subsisting before the attachment by the Deputy Sheriff. He avers that he could also be eligible for the purchase of the said shop since he had an unexpired lease, which leaves the property encumbered in his favour. He contends further that an official search he conducted at Ho Municipal Town Planning records reveals that the site of the subject land had been proposed for a roundabout/road and that the land/shop cannot be a subject of a judicial sale due to the statutory encumbrances. He counterclaims for: 5 Edland Technologies Limited in Suit No. E2/26/2019 As n4 above. 4 | P a g e Page 5 of 16 i A declaration that the attached land does not belong to 1st Defendant.6 ii A declaration that [his] attached shop/land falls within a proposed road and roundabout and so cannot be a subject of judicial sale. iii A declaration that [his] leased land/shop cannot be sold by reasons of [his] unexpired lease. iv An order … revoking any order(s) flowing from the Ho High Court Suit No. E2/26/2019 mandating the attachment of [his] … shop. v An order of perpetual injunction to restrain Plaintiff from ever going ahead to sell [his] shop/land. vi Cost incidental to the suit. Issues set down for trial At the close of pleadings, these were the following issues that were set for the trial: a Whether or not the 1st [Claimant] ever inherited or could inherit her uncle by Ewe customary succession. b Whether or not 1st [Claimant’s] possession of landed documents ripened into her ownership thereof of the property c Whether or not the 1st [Claimant] grandmother ever redeemed any mortgaged property if at all d Whether or not the 2nd [Claimant] subsisting lease of the subject matter could prevent a judicial sale.7 i Whether or not the proposed road/roundabout upon which 2nd [Claimant's] shop is currently built has long been abandoned within 7 That is the judgment debtor in Suit No. E2/26/2019, as n4 above. Original issues the Plaintiff filed 5 | P a g e Page 6 of 16 the Town Planning Scheme of the Statutory Planning Committee of the Ho Municipal assembly ii Whether or not a piece of land encumbered as [a] major roundabout within the records of the Town Planning Scheme can be a subject of judicial sale. iii Whether or not the 2nd [Claimant's] shop as at the time of the instant suit belong[s] to the Defendant/Judgement/Debtor in the Ho High Court Suit E2/26/2019 to be properly attached for judicial sales.8 Myriad and diverse as the issues for trial are, upon hindsight, the overarching paramount issue for trial, indeed characteristic of interpleader action, is whether or not the property attached by the deputy sheriff can be a subject matter for judicial sale; in fact, whether the property belongs to the judgment debtor or its founding and managing director EAG. As was decided by Abban J (as he then was) in Salama v. Sharani [1973] 2 GLR 364, at 367, held that: [Interpleader proceedings] should not be confused with an ordinary action [as the object is simply] to enable the deputy sheriff, who has seized the property and is now in possession thereof to obtain relief and to get a decision of the court as regards the person to whom he has to release the property” or to pay the proceeds from any judicial sale. Upon hindsight therefore, and thus contrary to the multiple issues that the court had naively set down for trial, the main issue as usual in interpleading actions, is, who owns the land in dispute; that is, is the property owned by the judgment Being additional issues filed by 2nd Claimant filed. 6 | P a g e Page 7 of 16 debtor solely, or jointly with his brothers and sisters, and therefore family property? See Salama v. Sharani id at page 365; See also Republic v High Court, Accra; Ex parte Anyan (Platinum Holdings Interest Party), 255 [2009] SCGLR (Holding 1). The determination of the ownership of the subject matter is thus the core issue in this suit. After resolving this core issue, I may decide to end it there and not engage myself in the determination of the other issues which in essence would be irrelevantly unnecessary and outlandish. Preliminary and primary facts findings At the case management conference, the court adopted the witness statements the parties filed as their testimonies in the suit. Plaintiff’s case is per the sole witness statement that it’s lawful attorney Edem August filed on 27 April 2022. It is a 2- page 19-paragraph deposition attached with Exhibit ‘A’ Series (A1-A4). The case of the 1st Claimant is per her 4-page 13-paragraph document attached with Exhibits 1, 2 & 2a, 3 & 3a, and 4. Her case is supported by her paternal brother Edward August Gbeblewu (EAG) per a witness statement he filed on 25 May 2022. It is a 2-page 7-paragraph deposition with no attached exhibit. EAG, I need to emphasize here, first that he is the director of the judgment debtor company, and secondly that he was unavailable so his witness statement was struck out upon request of counsel for the 1st Claimant. The case of the 2nd Claimant is per a witness statement he filed on 5 May 2022. It is a 3-page 22 paragraph deposition attached with Exhibit LS series.9 2nd Claimant’s Exhibit LS2 is a lease document that shows his interest in the subject matter land. Exhibits LS1 - LS5. 7 | P a g e Page 8 of 16 Exhibit LS2 is unregistered and unstamped. I recall having directed, indeed cautioning at the case management conference that the admissibility of the document Exhibit LS2 at the hearing shall be subject to its due registration and stamping at the Lands Commission. At the hearing, it was not objected to at its tendering. I find Exhibit LS2 is still unstamped. The consequences are obvious. The burden of proof; that is, the burden of producing evidence and the burden of persuasion in a case is not necessarily borne by a plaintiff in a suit. The burden of proof in a suit is determined largely by the nature of the pleadings and the resultant issues that the court settled for trial and that “… depending upon the pleadings … the evidential burden can move on to a defendant … that can result in the right to open the case shifting to the defendant”. See Sumaila Bielbiel (No.3) v Adamu Dramani & Attorney-General [2012] SCGLR 370. The case of the Claimants is that the subject matter property had been wrongly attached by the deputy sheriff for judicial sale, as the property, according to them, particularly the 1st Claimant does not belong either to the judgment debtor - Edland Tech Ltd, or its founding director EAG. The trite evidential law is that whoever makes an assertion must provide proof thereof. The burden of producing evidence always lies upon the party who would lose if no evidence is led in the case, and where some evidence has been led on the issue, it lies upon the party who would lose if no further evidence is led on that issue. See Evidence Act, s. 17. Indeed, contrary to the decision of the High Court, Kumasi in Appiah v. Buaman, D. C. (Land) '48-'51, 222 that was urged on Abban J (as he then was) to lay the burden of proof on the plaintiff judgment creditor in an interpleader suit before him Salama v. Sharani, Abban J held that in interpleader proceedings for a claim of 8 | P a g e Page 9 of 16 property, possession of the property at the time of the attachment determines who assumes the burden of proof. The revered judge, Abban J, indeed one time the Chief Justice of Ghana held in Salama v. Sharani id at 369 para.3 that: Possession at the time of attachment determines who is to be the plaintiff and must therefore undertake the burden of proof. Whoever happened to be in possession of the property at the time of the seizure was supposed to have nine-tenths of the law [on his side] and therefore had a lighter burden of proof. If the claimant happened to be in possession then he was made the defendant; if on the other hand the judgment debtor was in possession at the time of seizure [as in the present case], the onus of proof would be on the claimant. I find that effective possession of the property had been with the judgment debtor EAG. The burden of proof, in my view, falls on the Claimants to produce the requisite satisfactory evidence, either of ownership or some sort of recognizable interest in the property under attachment, as was held in Lemanu v. Duala (Yakubu- Claimant) [1962] 1 GLR 60. At head note 2, Ollennu J held that: Where the execution-debtor is in possession of the attached premises the claimant assumes the burden of proving his title to the same degree as a plaintiff in a suit for declaration of title. Per her witness statement, the crux of the 1st Claimant’s case is summed up in paragraph 12 of her witness statement: 9 | P a g e Page 10 of 16 I wish to state that I have not leased/sold any property to EAG as he is my brother. EAG is not the owner of the property attached by the plaintiff upon which I filed Notices of Claims to that effect. My late grandmother redeemed the mortgage with the assistance of her other sisters. The late Tolovi Lucia Adzei duly took steps and protected the parcel of land with the necessary documentation. (Emphasis added) The above claim is supported by Exhibit 4, a “declaration of title” that was executed in 1978. It is a duly registered instrument, stamped at the Land Registry as No. 7691/1986. Plaintiff does not dispute the location, size, and identity of the subject matter property and the beneficiary thereof on its face. Whilst the plaintiff sought to deny the interest of the 1st Claimant in the property, he did not produce any evidence that shows that the subject matter property solely belongs to or is owned by the judgment debtor or its director EAG. What seems to ground the attachment of the property is that EAG, the director of the judgment debtor has an interest in the property. It is that interest that the plaintiff judgment creditor wants to lay execution to satisfy fully or partly the judgment debt. But therein lies the shield of indivisibility of the property that inures in favour of a claimant if the property is not established satisfactorily to be solely owned by the judgment debtor as was held in United Simpson & Ayitey Co. v. Jeffrey (Jeffrey-Claimant) [1962] 1 GLR 279. By paragraph 11 of his witness statement plaintiff avers that the property belongs to “the claimant’s father’s mother …”. Plaintiff further contends by paragraph 12 of his witness statement that the bare custody and possession of the legal instrument covering the land i.e. Exhibit 4 by 1st Claimant does not vest any interest in the property in her. Exhibit 4 is a duly registered instrument covering 10 | P a g e Page 11 of 16 the subject matter property that the 1st Claimant claims vests in her beneficial ownership. A presumption is an assumption of fact that the law permits to be made from another fact or group of facts. The fact of possession or custody of Exhibit 4 by the 1st Claimant, indeed, I find vests in her the presumption of a legally beneficial owner of the property until the person with a better or superior title of ownership shows up. The Evidence Act, 1975 (NRCD 323) s. 35 provides that “[t]he owner of the legal title to property is presumed to be the owner of the full beneficial title”. My view is that the presumption of legal beneficiary ownership that inures legally in favour of the 1st Claimant on grounds of bare possession of the legal title of the subject matter, coupled with the fact that her paternal brother the judgment debtor is occupying or in possession of the property, shifts the burden of proof unto the plaintiff judgment creditor to provide further evidence, indeed satisfactory rebuttal evidence that shows that the judgment debtor or its founding director EAG has a better title to the property, indeed a title that is superior to that of 1st Claimant or any other person concerning the subject matter land. That must be the main duty of the plaintiff: proof that EAG, director of the defendant judgment debtor is the owner, indeed sole owner of the subject matter property. I find none on record other than what appears to be EAG’s indivisible interest in the property with the 1st Claimant. Beyond all these pieces of evidence that in my view do not advance the course of the plaintiff’s case, coupled with the indivisibility factor in interpleader proceedings, the plaintiff under cross-examination seemed to have lent some credence to the 1st Claimant’s case that the attached property is not solely owned by the judgment debtor. By and large, the success of a party’s case is determined 11 | P a g e Page 12 of 16 by how far his case survives the fiery heat of cross-examination. Indeed, what is a more compelling and beneficial piece of evidence in support of a party’s case than one coming or forced from the lips of his opponent to corroborate the party’s version? Therein lies the importance of the art of good cross-examination. A lawyer acquires the art only if he is in full grasp not only of the core issue in the suit but also of the controlling law applicable to the issue. Cross-examination is not just the hackneyed bare repetitively nauseous ‘I am putting it to you’ that have become commonly associated with contemporary courtroom practice. A good cross- examiner must carefully locate and isolate the jugular vein of the opponent’s case and deliver the fatal strike. A good cross-examiner knows when to stop. That is exactly what, in my view, counsel for the 1st Claimant aptly did in his cross- examination of the plaintiff. I feel obliged to quote here the full ambit of counsel’s cross-examination of the plaintiff: Qn. Read paragraph 11 of your witness statement. Ans. (Read over). Qn. How do you understand that statement in paragraph 11? Ans I understand it to be that the land does not belong to the claimant’s mother. Qn. Look at your paragraph 12. (Read out) Are you suggesting that the Statutory Declaration will not confirm title on 1st Claimant? Ans. Yes, that is what I am saying. Qn. What confirmed title on Edland Tech. Ghana Ltd, the Defendant/judgment debtor [in the subject matter property]? 12 | P a g e Page 13 of 16 Ans. Edland Tech Ghana Ltd’s title is because of Edward Gbeblewu. He is also a bonafide owner of that company. The land belongs to Edward Gbegbewu’s father’s mother that makes Edward Gbeblewu also a bonafide owner of the land. Qn. Who are the children of Edward Gbeblewu’s (EG) father. Ans. Peace Gbeblewu, whose twin sister is the 1st Claimant. Qn. The land is a family property of Edward Gbeblewu’s father’s children. Ans. That is correct. ….. MR. AGBAKPE: My Lord, that will be all. (Emphasis added) In my view, the die was cast when the plaintiff admitted that the attached property is “family property of Edward Gbeblewu’s father’s children” “whose twin sister is the 1st Claimant”. I find calmly therefore that Edward August Gbeblewu is not a bonafide sole owner of the land. Besides, Plaintiff admits that the children of Edward Gbeblewu’s father are Peace Gbeblewu, whose twin sister is the 1st Claimant herein. Drawing inferences from his evidence, Plaintiff seems to admit that 1st Claimant has an interest in the subject matter property. In his closing submission, learned counsel for the Plaintiff confirmed that the subject matter property essentially “assumed a family character at law”.10 Counsel further argued that “mere possession of Exhibit 4 could not … ripen into personal ownership of the subject matter by 1st [Claimant]”. I recall having addressed this submission of counsel by my reference to section 35 of the Evidence Act. Per the See page 9 para. 4 13 | P a g e Page 14 of 16 submission of learned counsel, I shudder to think of the propriety in allowing a property that had “assumed a family character at law” to be attached to satisfy the judgment debt of a person who has not been proven to solely own the property. I recall having stated that the overarching paramount issue for consideration in this suit, indeed the object of interpleader proceedings is to ascertain whether or not the property attached by the sheriff belongs to the judgment debtor Edland Tech Limited, or its founding director EAG and can thus be a subject matter for judicial sale. Having been established here that the property does not solely belong to the judgment debtor, coupled with the submission of the plaintiff’s counsel that the attached property had “assumed a family character at law”, I hold that EAG’s interest in the property, if any, is indivisible and that such interest cannot, therefore, form a legitimate basis for judicial attachment to satisfy a judgment debt of EAG. By this conclusion, I deem it irrelevant to proceed to consider the other issues that were set down for trial, as their outcome cannot negate the conclusion that I have just reached on the core issue. As I remarked earlier on in this judgment, the primary facts that a trial judge is obliged as a duty to find as having been proved to his satisfaction are those necessary to establish the claim of a party. Having in my view done just that, I deem the other issues irrelevant. See Domfe vs Adu id. See also Reindorf & Anor vs Amadu & Ors [1962] 1 GLR 508 (Headnote 1). Conclusion From the evidence adduced at the trial, I have the calmness without any hesitation whatsoever to hold that the 1st Claimant has succeeded to establish a prima facie proof of beneficial interest in the subject matter property. I hold further that the 14 | P a g e Page 15 of 16 evidence on record does not point to any better or superior title in the property in any other person particularly the judgment debtor or its director to make it a legitimate subject matter for attachment to satisfy a judgment debt. I hold that the plaintiff has failed to produce evidence that links the judgment debtor Edland Tech (Gh) Ltd or its founding director EAG to a superior title or ownership of the subject matter property to make the attachment legitimate. Plaintiff’s case is hereby dismissed and the claim by the Claimants, particularly that of the 1st Claimant is upheld solely within these terms. I make an order, therefore, discharging the attachment of the subject matter property for judicial sale.11 The attachment was at the direction and instructions of the Plaintiff judgment creditor executioner. Ordinarily, the Plaintiff could be liable to the Claimants for damages but there was no evidence on the period of the attachment nor of any loss incidental. Majdoub & Co. Ltd v. W. Bartholomew & Co. Ltd [1962] 1 GLR 122 (Headnote 2). The Claimants shall be entitled just to nominal costs. Ordered accordingly.12 (Sgd.) George Buadi, J. High Court (1) Ho Lawyers Gordon Akpadie, Esq. for plaintiff judgment creditor plaintiff 12 Unnumbered Commercial Property and metal situated at Raymakosa Traffic Light, Ho. End of the judgment - Foshan Oceanland Ceramics Co. Ltd v Patience Owusu Adjei & Anor (Suit No. E1/31/2022). 15 | P a g e 3 Emile Atsu Agbakpe, Esq. for 1st Claimant Benedict Kofitse, Esq. for 2nd Claimant. Page 16 of 16 16 | P a g e