John Arhinful and Sophia Naa Korkoi Aryee v Philip Kpabitey
by Justice Emmanuel Amo Yartey
Jurisdiction
High Court of Ghana
Judge
Justice Emmanuel Amo Yartey
Catalog Type
Case
Judgement Date
Jan 30, 2026
Summary
This case arose from interpleader proceedings following execution of a judgment obtained by the defendant against a developer, Kumsark Estates Ltd. The defendant sought to enforce a writ of possession against occupants on the land, including the plaintiffs. The plaintiffs claimed ownership of their respective residential properties at Oyarifa, which they acquired through HFC Bank promotions and subsequent deeds of assignment. They asserted that they were bona fide purchasers for value and had been in possession for several years. The defendant, however, relied on prior judgments establishing his title to the larger tract of land and contended that the plaintiffs derived their title from a party who had been adjudged a trespasser. The court held that in interpleader proceedings, the claimants bore the burden of proving that the attached property belonged to them. The court further emphasized the importance of proving the identity and boundaries of land in dispute. A composite plan prepared by the Survey Department revealed that the plaintiffs’ land overlapped the defendant’s land by five (5) feet. Based on this evidence, the court held that while the plaintiffs were entitled to their properties, the defendant was entitled to the portion of land representing the overlap. Accordingly, the court discharged the execution against the plaintiffs’ properties except to the extent of the five (5) feet overlap, which was awarded to the defendant.
Full Content
1.0 INTRODUCTION:
This case involves a post judgment litigation of interpleader claim. On the 29th day of November, 2017, judgment was entered in favour of the Defendant/Judgment-Creditor.
1.1 Subsequently, the Defendant/Respondent filed an Entry of Judgment and commenced the execution process to enable him enjoy the fruits of his judgment. He thereafter filed notice of the record of Proceedings and caused same to be served on all the occupants on the disputed subject-land on 6th June, 2018.
1.2 On 26th February, 2019, the court ordered for a writ of possession to issue and consequently, the Registrar sealed the writ on 16th May, 2019. Per their respective notice of claim, the Claimants are laying claim to the disputed subject land. These claims were disputed by the Respondent and when issues were joined, the instant proceedings commenced.
1.3 Being an interpleader claim the purpose of this trial is to determine whether the attached property wholly belongs to the defendant or the claimants. In the case of REPUBLIC V. HIGH COURT ACCRA EX-PARTE ANYAN PLATINUM HOLDINGS, INTERESTED
PARTY [2009] SCGLR 225, the Supreme Court held:
“A Sheriff’s interpleader would arise when the Sheriff has seized or intended to seize goods by way of execution and a person (other than the Judgment Debtor) has made a claim to the goods taken or intended to be taken in execution. In that regard, the proceedings initiated by the Sheriff would determine whether the property belongs to the Judgment Debtor (and can therefore be seized) or to the Claimant.”
In this action the subject matter is a landed property. See also SALAMI V. SHARANI [1973] 2GLR 364
1.4 The claimants assume the initial legal burden of proof and there cannot be any question about that since the claimants have introduced an issue of proof which is essential to the case they are making. The learned Authors of Halsbury Laws of England Vol. 17 of 2nd Edition paragraph 14 have stated of the incident of the legal burden as follows:
“The legal burden of proof normally rests upon the party desiring the Court to take action, thus a Claimant must satisfy the tribunal that the conditions which entitles him to an award have been satisfied. In respect of particular allegations, the burden lies upon the party for whom the substantiation of the particular allegation is an essential of his case.”
1.5 Certainly, this passage sums up the position of our law under
sections 11(4), 14 and 17 of the Evidence Act NRCD 323. I do not need to go further to explain this. It is a familiar field of our rules of evidence and both counsel agree. Suffice it to add that the burden is not fixed. It shifts depending on the sort of evidence adduced to discharge the initial obligation.
1.6 The case of the 1st Claimant is captured by his witness statement.
A summary of the witness statement of the 1st Claimant states that In April, 2011, he won a raffle draw in the HFC Homesave Promotion and was awarded a two bedroom residential property at Oyarifa, Accra as the prize gift. See Exhibit “A”, a newspaper publication announcing the winner and the award presented to the winner who is the 1st Claimant.
1.7 It is his evidence that in April, 2011, he was presented with the said property and an indenture (Deed of Assignment) for same at a public even at Oyarifa, Accra which was published in the media in Ghana and on the Internet. See Exhibit “B1” and “B2” an indenture and media publications on the event respectively.
1.8 By the indenture (Deed of Assignment) dated 28th April, 2011, he acquired the said property and obtained title to same directly from Angello Ronald Adukure, grantor of the parcel of land on which HFC BANK’s developer had developed the property. See Exhibit “C”, an indenture proving the root of title of Angello Ronald Adukure as grantor.
1.9 He immediately took possession of the property and went into permanent occupation of same from April, 2011. The parcel of land on which the property is developed became the subject-matter of SUIT NO. FAL/902/2013, INTITULED PHILIP K. THERSON COFIE V. KUMSARK ESATES LTD. in 2013 and judgment was eventually awarded in favour of Philip Therson Cofie in November, 2017.
2.0 In September, 2019, he was served with a letter dated 19th June, 2017 by the solicitors of one Patrick kuntor, announcing a Notice to Vacate the land for the said Patrick Kuntor, or undertake to atone tenancy to him.
2.1 He continued that the letter dated 19th June, 2017 provided content information to the effect that the said Patrick Kuntor was adjudged the owner of the land in issue by a judgment of the High Court dated 31st March, 2015 and subsequent judgment of the Court of Appeal dated 21st April, 2016. Patrick Kuntor was granted leave to go into possession of the subject matter land by an order of the court dated 23rd July, 2015. See Exhibit “D”, a copy of the letter dated 19th June, 2017.
2.2 Pursuant to the notice served in the letter dated 19th June, 2017, he caused his solicitors to write to the solicitors of Patrick Kuntor to engage in discussions relative to the issues raised therein and to seek an arrangement for him to atone tenancy to Patrick Kuntor. See Exhibit “E”, a copy of the letter from his solicitors.
2.3 The solicitors for Patrick Kuntor responded to his solicitors’ letters and the engagement was commenced but subsequently put on hold due to the new developments regarding this instant suit. See Exhibit “E1” and “E2”, the letters from his solicitors.
2.4 It is the evidence of the 1st Claimant that under the circumstance, he hold himself as the bona fide purchaser for value and proprietary owner of the disputed property.
2.5 Per her witness statement the 2nd Claimant also testified as follows:-
“1. My name is Sophia Naa Korkoi a citizen of ghana and currently staying at Community 13, Kumsark Estates, Oyarifa-Accra.
2. I am a Civil Servant.
3. That I am the bona fide owner of a two bedroom residential property on the piece of land which is the subject matter of the instant suit. Attached and marked as Exhibit “A”, is the Deed of Assignment in respect of the property.
4. In 2010, the HFC Bank Ghana Limited, now Republic Bank launched an investment promotion, a raffle draw called “2010 HFC Homesave Promotion”.
5. The condition precedent to entering this draw was to invest an amount of money in a fixed deposit with the bank for a minimum of one year.
6. As a customer of the bank, Ridge Branch, I participated in the promotion aforesaid and emerged the in the second draw.
7. The Bank made a presentation of the keys to the two- bedroom house situate at Oyarifa to me right there at the property. The ceremony was published in the print media and the internet. Attached and marked as Exhibit “B”, is a copy of the internet publication.
8. Subsequently, by a letter dated 30th January, 2012 the Bank invited me to their office to collect the Deed of Assignment. Attached and marked as Exhibit “C”, is the letter of invitation by the Bank.
9. By a Deed of Assignment date 3rd January, 2012, I obtained title directly from Angello Ronald Adukure.
10. I immediately took vacant possession of the property and I have been in active and effective possession of this property since 2012 that is well over eighth (8) years.
11. In September, 2019, I was served with a letter by the solicitors of one Patrick Kuntor. That the letter dated 19th June, 2017 was a notice to vacate the property to the said Patrick Kuntor or attorn tenancy to him. Attached and marked as Exhibit “D”, is a copy of the letter.
12. The letter also indicated that the said Patrick Kuntor was adjudged owner of the land on which my house was subsequently built. The letter was accompanied with judgments from the High Court dated 31st March, 2015 and the Court of Appeal dated 21st April, 2016. Attached and marked as Exhibits “E” and “F”, copies of the High Court and Court of Appeal.
13. Pursuant to the judgments aforesaid, the antecedent to Patrick Kuntor’s ownership of the land is as follow:
14. In suit number AL 62/2008 the said Patrick Kuntor filed a writ of summons against seven defendants which includes the representative of the Kplen We family and my previous grantor, Angello Ronald Adukure (through my grant from HFC), for declaration of title to the land, and recovery of possession among other reliefs.
15. Angello Roland Adukure’s grantor was the Kplen We acting through its representatives, who were the 1st and 2nd Defendants in the suit aforesaid. Patrick Kuntor obtained judgment against the Kplen We family and my grantor on 12th March, 2009. Subsequently, my previous grantor, appealed the judgment against him on grounds that he was not served with hearing notices. This appeal succeeded and the Court of Appeal ordered the High court to conduct the trial de novo between Angello and Patrick Kuntor.
16. Patrick Kuntor obtained judgment against the Kplen We family and my grantor on 12th March, 2009. Subsequently, my previous grantor, appealed the judgment against him on grounds that he was not served with hearing notice. This appeal succeeded and the Court of Appeal ordered the High Court to conduct the trial de novo between Angello and Patrick Kuntor.
17. Patrick Kuntor obtained judgment in his favour in the trial de novo and same was appealed by Angello in the Court of Appeal in suit number HL/18/2011. The appeal aforesaid was dismissed and the decision of the High Court was affirmed.
18. Following the judgment obtained in Patrick Kuntor’s favour in March, 2015, the court gave an order for writ of possession to issue on 23rd July, 2015 and consequently, the Registrar sealed the writ. Attach and marked as Exhibit “G” series, copies of the order for writ of possession and the Registrar’s seal.
19. The order for the writ of possession which was subsequently published in the print media served as notice to the whole world. Attached and marked as Exhibit “H”, a copy of the print media.
20. The Defendant herein alleges that the Kplen We family made a purported grant to him in 2005.
21. Armed with the purported grant from Kplen We, the Defendant caused a writ of summons dated 16th August, 2013 to be issued against Kumsark Estates.
22. By the writ of summons aforesaid, the Defendant sought for recovery of possession, damages for trespass and cost including legal cost but failed to ask for declaration of title.
23. The Defendant obtained judgment and consequently my property was affected by the judgment. However by the print media referred to in paragraph 19, it follows that the judgment was obtained by fraud. The particulars of fraud being that the Defendant knew his grantor did not have title to the land but he represented to the court that he had title to the land. Attached and marked as Exhibit “J”, a copy of the judgment dated 29th November, 2017.
24. Following the letter dated 19th January, 2017 (paragraph 11) herein serving notice to the occupants to vacate the property, the said Patrick
Kuntor had a meeting with the occupants and the occupants agreed to attorn tenancy to him.
25. In a follow up to the meeting, I caused my solicitors to write to Patrick Kuntor in a letter dated 20th January, 202 demanding the price of the property in order to purchase same. Attached and marked as Exhibit “K”, a copy of the letter.
26. That in a letter dated 27th January, 2020 the said Patrick Kuntor made an offer of the property to me at a discounted rate which I am about to pay to him. Attached and marked as Exhibit “L”, a copy of the letter.
27. That under the circumstances, I am a bona fide purchaser for value thus I have full rights over the disputed property.”
2.6 In contesting the claims of the Claimants, the Defendant/ Respondent per his witness statement testified as follows:
“1. My name is Philip Kpabitey Therson-Cofie and I am the Defendant/Judgement-Creditor in this interpleader action.
2. In 2013 I sued the Defendant, Kumsark Estate Limited in the Suit Number FAL/902/2013 for unlawfully trespassing on my land and obtained judgment on 29th November, 2017. See Exhibit 1.
3. The Defendant’s statement of defence impliedly admitted the trespass, and at the trial the Defendant failed/refused to cross examine me. See Exhibit 2 and 1 supra.
4. After the judgment, I filed an entry of judgment on the Defendant, Kumsark Estate Limited, and subsequently filed the notice of the records of the proceedings on all the occupants of the property on 6th June, 2018 including the Plaintiff/Judgment Debtors herein. See Exhibit 3a and 3b.
5. On 26th February, 2019, the honourable court gave on order for a writ of possession to issue and consequently the Registrar sealed the writ on 16th May, 2019. Exhibit 4a and 4b attached.
6. It was only after the writ of possession had been sealed that the Plaintiff/Judgment-Debtor fined their claim against me.
7. I want to state that I hold the legal title to the property as shown by a search report attached as Exhibit 5a and 5b.
8. I have also obtained a report on the transactions on the property and it is indicated that the property is affected by a judgment dated 29th June, 2010 in a Suit No. AL3/2006 in favour of my vendor, James Nii Okpoti Kodia. Exhibit 6.
9. As a result of the matters aforesaid, I have been advised and verily believe same to be true that my land title certificate is not affected by the equitable doctrine of fraud or notice.
10. The Claimants do not have any legal title to the property. They acquired the property from the Defendant in the original suit who admitted that they had trespassed on my land, and in particular, the 2nd Plaintiff/Judgment-Debtor’s vendor, Angello Adukure was a party in the aforementioned suit.
11. It is my contention that the Plaintiffs’ claims are frivolous and should be dismissed.”
2.7 It is not in dispute that the subject-matter of the instant action is land. In Land litigation, the law requires a party to prove his or her root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. In the case of YEHANS INTERNATIONAL LTD. V MARTEY TSURU FAMILY & ANOR. (2018) DLSC 2488 AT PAGE 8, Justice Adinyira (Mrs.) JSC, had this to say on proof of title with respect to land:
“It is settled and trite law that a person claiming title has to prove:
i. His root of title,
ii. Mode of acquisition and
iii. Various acts of possession exercised over the disputed land”
2.8 Also in MONDIAL VENEER (GH LTD. V AMUAH GYEBU XV (2011) 1 SCGLR 466 at 475, where Georgina Wood (Mrs.) JSC (as she then was), stated as follows:
“In Land litigation even where living witnesses who were directly involved in the transaction under reference are produced in Court as witnesses, the law requires the person asserting title and on whom the burden of persuasion requires the person asserting title and on whom the burden of persuasion falls, as in this instant case, to prove his root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation.”
See also the case of AWUKU V TETTEH (2011) 1 SCGLR 366.
2.9 To these may be added that, once the issue of identity of the land is in dispute, issues relating to the identity of the land becomes material and must be proved. In the case of NYIKPLORKPO V AGBEDOTOR (1987-1988) 1 GLR 165 at 171, the Court
considered the requirements essential to success in an action for declaration of title, injunction and recovery of possession thus:
“The principle is that to successfully maintain an action for declaration of title to land, the appellants had to prove with certainty the boundaries of the land claimed…and the documentary proof establishing his title, the Plaintiff must establish by positive evidence the identity and limits of the land he claims.”
3.0 It is trite law that a plaintiff in an action for declaration of title to land, recovery of possession and perpetual injunction has the duty of establishing by positive evidence (a) the identity of the land claimed, and (b) that the land claimed is the same as the subject matter of the suit.
3.1 In ANANE V. DONKOR [1965] GLR 188, SC, it was held,
holding 1:
“A claim for declaration of title or an order for injunction must always fail, if the plaintiff fails to establish positively the identity of the land claimed with the land the subject matter of his suit.”
3.2 In NYIKLORKPO V. AGBEDETOR [1987-88] 1 GLR 165,
holding 3 it was held:
“To succeed in an action for declaration of title to land, recovery of possession and for an injunction, the plaintiff must establish by positive evidence, the identity and the limits of the land which he claimed.”
3.3 This court differently constituted ordered for a composite plan to be drawn to enable the court to determine whether the parties are litigating over the same land.
3.4 In producing a composite plan, the Survey Department of the Lands Commission provided expert evidence to the court. The court is not bound by such expert evidence; even though it often provide immense assistance to the court.
3.4 In FENUKU V. JOHN-TEYE [2001-2002] SCGLR 985 at 99 holding b it was held:
“The principle of law regarding expert evidence was that the judge need not accept any of the evidence offered. The judge was only to be assisted by such expert evidence to arrive at a conclusion of his own after examining the whole of the evidence before him. The expert evidence is only a guide to arrive at the conclusion.”
The expert witness CW1, tendered a copy of the composite plan as Exhibit CE1.
3.5 During cross examination of CW1 by counsel for the Defendant/Respondent, he testified as follows:
“Q: So what is the size of the Plaintiffs’ land that has eaten into the Defendant’s land?
A: The 1st Plaintiff and the 2nd Plaintiff’s site plans over laps the Defendant’s certificate plan by 5 feet.”
3.6 This clearly depicts that the Defendant/Respondent interest covers only the 5 feet for which reason I discharge the Claimants land save the 5 feet from further execution. The parties are therefore at liberty to engage a surveyor from the regional Office, Survey and Mapping Department, Accra to carve out the 5 feet for the Defendant/Respondent.