Fidelity Bank Ghana Limited v Emmanuel Adotey Allotey; Willy Hauptmann Junior

This judgment will seek to unpack the facts surrounding the issue whether or not an immovable property presumably belonging to the Respondent/Judgment Debtor and which was taken in execution pursuant to a warrant of possession obtained by the Applicant/Execution Creditor (Hereinafter to be referred to as “Execution Creditor”) against the Respondent/Judgment Debtor said property belonged to the Claimant.

Background

The background to this case is that the Court differently constituted following an application filed by the Execution Creditor for an Order for a warrant to recover possession of a property numbered House No. 17, St. Fischer Street, New Achimota in the Greater Accra Region, granted same on 22 August, 2022 in the following words:

“IT IS HEREBY ORDERED that, leave be and is hereby granted the Applicant for a warrant to recover possession of a Two-Bedroom property located at House No. 17, St. Fischer Street, New Achimota in the Greater Accra Region in default of loan facility by the Respondent”

The Execution creditor in their effort to enforce this order, were the confronted with another development. The development being that the Claimant on 23 May, 2023 invoked the jurisdiction of the Court by filing a Notice of Claim pursuant to Order 14 Rule 12 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) on the grounds that the Respondent/Judgment Debtor is not the owner of the subject matter of the warrant, but he rather is, and therefore his property cannot be taken in execution of the warrant of possession to his detriment.

The Execution Creditor and the Claimant were subsequently per the Order of the Court dated 10 July, 2023 ordered to appear for the Court for the issues between them to be determined and the order was that the issues between the parties shall be determined by a trial.

In this regard, the Court was of the opinion that since a property taken in execution is presumed to belong to the Judgment Debtor, then any rival claimant will be saddled with the burden to put before the Court evidence to rebut that presumption. According, it was so order that the Claimant shall for purposes of establishing its claims, be treated as the Plaintiff and the Execution Creditor, as the Defendant.

The placement of the legal burden on the Plaintiff is consistent with sections 10(1) (2) (b), 11(1) (4), 14 and 17 of the Evidence Act, 1975, NRCD 323 and the principles set down in the case of Okudzeto Ablakwa (No. 2) vs. Attorney General & Another [2012] 2 SCGLR 845 at 867. In this case the court explained the law governing proof when it stated that:

“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.”

Again in the case of Takoradi Flour Mills vs. Samir Faris [2005-2006] SCGLR 882, the court explained the burden cast by law on a plaintiff as follows:

7. “It is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Decree, 1975 (NRCD 323). In assessing the balance of probabilities, all the party in whose favour the balance tilts is the person whose case is the more probable of the rival versions and is deserving of a favourable verdict”

The Trial

The Claimant’s Attorney, Michael Casely Hayford, testified during the trial. His witness statement filed on 2nd November, 2023 was admitted as his evidence in chief. The Execution Creditor similarly testified. Their evidence was rendered by Catharine Glah who described herself as a Recovery Officer at the Fidelity Bank.

The Court also appointed the Land Commission to visit and inspect the locus to determine certain questions in respect of the disputed property. The Court Expert duly filed their Report on 9th June, 2025 and further directed Mr. Cyril Setusa Owiafe of the Survey and Mapping Division of the Regional Lands Commission, Greater Accra, to attend court to testify in this matter.

Evaluation of Evidence

As a precursor to the determination of the issues and as stated earlier, the disputed property is the subject matter of enforcements proceedings being undertaken by the Execution Creditor, by virtue of the Order of the Court, granting the Execution Creditor a warrant to recover possession of the disputed property.

It is trite law that the only ground underpinning the grant of the said warrant pursuant to section 13 of the Home Mortgage Finance Act, 2008 (Act 770) is a finding by the Court that the property for which the warrant is to encompass is a property used to secured a loan facility by the Respondent/Judgment Debtor.

Indeed this state of facts, which were undisputed were adequately expressed in paragraphs 14 and 15 of the Witness Statement of Catherine Patience Glah as follows:

14. At the Direction of the Respondent, the facility was disbursed to Fourth Lucky Estate for the purchase of House No. 17, St. Fischer Street, New Achimota. A copy of the cheque by which the facility was disbursed is attached to this Witness Statement and marked as Exhibit “D”.

15. The Respondent then secured the Staff Mortgage Facility extended to him with a Surety Mortgage of House No. 17, St Fischer Street, New Achimota in the Greater Accra Region of the Republic of Ghana.

On the face of it, this appear to be a simple case of realising a security by the Execution Creditor. However, the Claimant herein by the Notice of Claim is claiming the sole and exclusive interest in the said House No. 17, St Fischer Street, New Achimota, as having acquired same from his grantor Jones Ofori Atta.

So the question is whether or not the Claimant has put before the Court evidence to establish on the balance of probabilities his claim that interest in the disputed property is domiciled exclusively in him.

The evidence of the Claimant in respect of his root of title or antecedents of ownership is expressed in paragraphs 3, 4, 5, 6, 7, 8 and 9 of his witness statement as follows:

3. The Plaintiff is the owner of the property, House Number 17, St Fisher Street, New Achimota.

4. The Plaintiff/Judgment/Creditor (hereinafter called the Defendant) was granted an Order for Recovery of Possession on the Plaintiff’s property House Number 17, St. Fisher Street, New Achimota, Accra on 22nd August, 2022.

5. The said Order of Possession was pasted on the said property on 8th May, 2023, was in the execution of the Judgment in the original suit between Fidelity Bank (Ghana) Limited vs Emmanuel Adotey Allotey in Suit Number CM.MISC.0619/2022 (sic).

6. At the hearing of the interpleader suit, the trial judge ordered the Claimant to be made Plaintiff and the Plaintiff/Judgment/Creditor the Defendant.

7. The Plaintiff acquired the property in dispute House Number 17, St. Fisher Street, New Achimota, Accra by an indenture dated 26th October, 2017 EXHIBIT “B” from Jones Ofori Atta.

8. The Plaintiff went into immediate possession and has been in an undisturbed possession of same since its [sic] acquisition.

9. The Plaintiff registered his title with the Lands Title Registry, Accra and was issued with a Lands Title Certificate Number GA 64283, Volume 51, Folio 394p dated 12th February, 2021 EXHIBIT “C”.

10. The Plaintiff says that the property in dispute does not belong to the Defendant/Judgment/Debtor, Emmanuel Adotey Allotey and connot be attached in the execution of the Judgment obtained by the Defendant/Judgment/Creditor [sic] against the said Emmanuel Adotey Allotey.

Identity of Disputed Land

Before I delve into the murky waters of unpacking the issues of fact, I am of the considered view, flowing from the evidence of the parties to ascertain whether the properties described by the parties as House Number 17, St. Fisher Street, New Achimota, Accra is the same property the parties are litigating over.

Now, I have examined the Exhibits filed by the Execution Creditor and the Claimant and nowhere do I find any property described as House 17, St. Fischer Street, New Achimota, Accra.

All that have been stated in the respective exhibits of the parties are the coordinates of the disputed property. The question therefore is whether or not the land descriptions set out in the respective exhibits of the parties align with the property’s recorded address as House 17, St. Fischer Street, New Achimota, Accra.

In the Report filed by the Court Expert he noted as follows:

“

• Two (2) plans submitted were submitted by the Respondent: One being a certified plan annexed to his deed of assignment which is shewn edged RED. The second plan being a cadastral plan, approved on the 13th November, 2017, which is shewn edged BLUE.

• Respondent’s cadastral plan edged BLUE reasonably agrees with the Claimant’s plan as well as the land in dispute

• However, Respondent’s site plan edged RED falls about 3, 846 feet to the

North-West of the land in dispute on ground.

Again the evidence of the Court Expert when he was cross-examined by counsel for the Execution creditor is as follows:

Q. Is that the same property that the applicant pointed out to you as the property that we are litigating over.

A. Yes.

So is the property pointed out to the Court Expert by the Execution Creditor the same as that which is expressed in the Deed of Assignment and the Deed of Mortgage tendered by the Execution Creditor.

Counsel for the Claimant in paragraph 7.2.2 of his written submissions stated as follows:

“Your Lordship, House Number 17, St. Fischer Street was not situated on the said parcel of land used as security for the mortgage. In the circumstance, the Defendant/Applicant/Judgment/Creditor [sic] deceived the Honourable Court when they applied to the Court for a warrant to recover possession of House 17, St. Fischer Street, New Achimota, Accra which was not the mortgaged property. They knew very well that, that property was not the mortgaged property.”

Much as I understand the submission by counsel for the Claimant, I am of the considered view that when applied to all the matters herein, same will constitute a red herrings, this

is particularly because I accept the evidence of the Court Expert that per two of the plans (Certified and approved) the lands were materially similar.

From the evidence therefore, I accept the evidence of the Court Expert regarding the identity of the disputed property, which is that the subject matter of this suit and for that matter the disputed property is House Number 17, St. Fisher Street, New Achimota, Accra.

Ownership of Disputed Property

It is material and imperative in my view that in matters touching on title to land, it is imperative that parties in their quest to establish title must put before the Court evidence in respect of their root of title.

The answer to this question will therefore be launched from an identification of who are the original owners of the disputed land is? I find from the evidence contained in the witness statement of the parties that both say that the original owner of the disputed land was Jones Ofori Atta.

According to the Claimant his grantor is Jones Ofori Atta and this was expressed in an indenture dated 26th October, 2017. I have examined Claimant’s Exhibit “C” and it clearly says that Jones Ofori Atta of P.O. Box 5608 is the grantor of the Claimant per an Indenture which according to the Claimant is dated 26th October, 2017. This statement is found in the Commencement provisions in the Claimants indenture (Exhibit “C”)

The Execution Creditor on their part also testified that the original owner of the disputed land was Jones Ofori Atta, who subsequently sold the house to the Respondent/Judgment

Debtor, and same was used by the Respondent/Judgment Debtor as security for the Staff Mortgage Facility. Their representative testified as follows:

9. The Staff Mortgage Facility required security from the Respondent so the Respondent introduced the Applicant to a developer by name Forth Lucky Estate whose Managing Director is one Jones Ofori Atta from whom he was buying the property for which he needed the loan facility.

10. Jones Ofori Atta of Fourth Lucky Estate owned House No. 17, St. Fischer Street, New Achimota so the Applicant conducted a search at the Lands Commission to ascertain the ownership of the property before the disbursement of the loan facility.

11. The search results showed that Jones Ofori Atta of Fourth Lucky Estate owned House No. 17 St. Fischer Street, New Achimota. A copy of the search results is attached to this Witness Statement and marked s Exhibit “B”.

12. The Respondent also furnished the Applicant Bank with an Assignment dated 21st July, 2017 executed between him and Fourth Lucky Estate acting per Jones Ofori Atta.

13. A copy of the Assignment is attached to this Witness Statement and marked

as Exhibit “C”.

Clearly, from the Executioner Creditor’s position, they agreed that the Respondents/Judgment Debtors title to disputed land was derived from the title held by Jones Ofori Atta, as his grantor.

I have similarly examined the exhibits tendered by the Execution Creditor, and I find that contrary to their evidence that the land belonged to Jones Ofori Atta, it is clearly stated on the face of their Exhibit “C” that the disputed land belonged to Fourth Lucky Estate

and not Jones Ofori Atta, albeit, Jones Ofori Atta being its Managing Director of Fourth Lucky Estate.

That is to say, per the land documents tendered by the Execution Creditor, the disputed land was acquired by the Respondent/Judgment Debtor from an entity known as Fourth Lucky Estate, instated Jones Ofori Atta personally.

The question which therefore arises is whether or not the property belonged to Jones Ofori Atta personally or Fourth Lucky Estate where he was the Managing Director. Before I however deal with this question however, it is important to settle the issue whether or not my Jones Ofori Atta, is the same person known to the parties.

During the cross-examination of Claimant by Counsel for the Execution Creditor, below is what transpired:

Q: Take a look at your exhibit ‘B’. Exhibit B names one Jones Ofori Atta as a

vendor, do you know Jones Ofori Atta?

A: Yes

Q: How do you know him? A: He is an estate developer.

Q: Apart from knowing him as an estate developer, are you related to him in any way?

A: No.

Q: When did you last see Jones Ofori Atta? A: 2 years ago.

Q: In 2022?

A: Yes

Q: Have you heard the name of a company called Fourth Lucky Estate?

A: Yes

Q: What do you know about that company?

A: I know it is owned by Jones Ofori Atta. He is into property development.

From the forgoing, I find that the person with the name Jones Ofori Atta, who is the Managing Director of the Fourth Lucky Estate is known to the parties herein.

Sale and Purchase

As stated earlier, the title of the Claimant according to them is derived from a sale and purchase agreement. But as stated earlier, the vexed question is whether or not the disputed property belonged to Jones Ofori Atta personally or Fourth Lucky Estate where he was the Managing Director at the time of the sale of the disputed property to the Claimant.

In this regard, I have earlier stated that the Claimant documentary evidence has been consistent with their claims. However, I do not find any evidence to support the case of the Execution Creditor, that the original owner of the disputed land which was assigned to the Judgment Debtor was Jones Ofori Atta.

Indeed, it is stated in the Commencement in the Indenture (Exhibit “3”) as follows:

“THIS INDENTURE is made the 21st day of July, in the year of our Lord Two Thousand and Seventeen (2017) BETWEEN FOURTH LUCKY ESTATE, Accra in the Greater Accra [sic] in the Republic of Ghana (hereinafter called “THE ASSIGNOR” which expression shall where the context so admits or requires include its heirs successors personal representatives and assigns) of the one part and EMMANUEL ADOTEY ALLOTEY also of Accra in the Region aforesaid (hereinafter called “THE ASSIGNEE” which expression shall were the context

so admit or requires includes his heirs personal representatives and assigns) of

the other part.”

Now the Execution Creditor tendered a search Report (Exhibit “2”) purports to show that the disputed land belonged to Jones Ofori Atta. However, as I have already stated, the root of title to the Deed of Assignment of the Respondent/Judgment Debtor, cannot be traced to Jones Ofori Atta, but rather Fourth Lucky Estate. Accordingly, I find the results contained only confirms the claim of the Claimant that the disputed land previously belonged to Jones Ofori Atta and Fourth Lucky Estate as claimed by the Execution Creditor.

Given the state of the findings supra, I am of the considered view that the Claimant has put before the Court evidence to establish prima facie that their disputed property belonged to Jones Ofori Atta, from who the acquired same from.

Accordingly, I evidential burden will shift to the Execution Creditor to put before the Court evidence to establish, how property belonging to Fourth Lucky Estate came to be described as the property of Jones Ofori Atta.

In this regard, it is my considered view that the corporate status of Fourth Lucky Estate ought to have been led in Court, for the Court to determine whether Fourth Lucky Estate was a limited liability company or a trade name.

This legal distinction is key to my mind in identifying the true grantor of the disputed property. Therefore in the absence of any such evidence, the Court will presume that, because Fourth Lucky Estate has a Managing Director, it will be considered a limited liability company, with the right to own property, distinct from its owners or Directors.

In the absence of evidence to address all these issues, I find that the Execution Creditor’s evidence on the Judgment Debtor’s root of title has been inconsistent and does not align with their documentary evidence. Again no evidence was led by the Execution Creditor to explain how a property belonging the Fourth Estate became the personal property of the Jones Ofori Atta, when the Deed of Assignment was signed by Jones Ofori Atta in his capacity as the Managing Director of Fourth Lucky Estate.

In the case of Akoto II v Kavege [1984-86] 2 GLR at 371. The Court of Appeal per Francois JSC held as follows:

“The suit being one for a declaration of title, the plaintiffs have an onerous burden to discharge. This is trite law and would have necessitated no further comment but for the procedure adopted by the plaintiffs of throwing this burden to the winds. No root of title was disclosed. Neither the tradition of acquisition of an inherited estate nor the incidents of purchase, if acquired by sale, were divulged. No clear and positive acts of unchallenged and sustained possession or of substantial user emerged from the evidence. The boundaries of the land were not established. No boundary neighbours were called to testify to the ownership of the adjoining lands.”

Conclusion

In conclusion I find that the case of the Claimant that the disputed land belongs to him is more probable than not. Accordingly, I find that the Claimant has put before the Court evidence to establish its claim on the balance of probabilities. Their claim against the execution in respect of the disputed property is hereby sustained.