Crime & Punishment of 2014-07-24

Businessman sues 4 lawyers over wrongful sale of house

AN Accra-based businessman has initiated an action at the Commercial Division of the High Court against six persons, including four lawyers and an auctioneer, for the recovery of his building, which he says was wrongfully sold.

The plaintiff, Mr Moses Kwame Ofei, is praying the court for a declaration that all the proceedings in a suit that culminated in the sale of the house are null and void.

He is also seeking a declaration that all the processes taken by the defendants, including but not limited to the purported auction sale of the said house, offend the Rules of Court and the Auction Sales Act.

Mr Ofei is further praying for an order to set aside the terms of settlement, the consent judgement, the order for leave to go into execution, the order for judicial sale, the writ of possession, the purported auction sale and any other steps taken in accordance with same.

The defendants in the suit are Mr Isaac Emil Osei Bonsu, Mr Isaac Adu-Boahen and Ms Cynthia Akafia, all of the law firm Minkah Premo and Company.

The rest are Mr Samuel Owusu Afriyie, a lawyer who represented the plaintiff in the earlier suit; Nana Otu Baah, the purchaser of the plaintiff’s house, and Mr Kwasi Haizel, an auctioneer and principal of Seyel Mart.

In a statement of claim accompanying the suit, Mr Ofei said he mortgaged his house, situated at Tesano, Accra, to HAS Kiymetli Madenler Ticareti A.S. of Turkey to secure a Private Sale and Purchase Agreement for gold entered into between Kiymetli and Smagow Resources (GH) Limited.

It said Smagow defaulted in the performance of its obligations under the said agreement and Kiymetli brought an action jointly and severally against Smagow and the plaintiff in the High Court.

According to the statement, the plaintiff subsequently executed terms of settlement prepared by Messrs Osei Bonsu and Owusu Afriyie and upon the advice of Mr Afriyie, who was at the material time, however, not licensed by the General Legal Council to practise as a lawyer.

It said the said terms of settlement were subsequently entered into as a consent judgement on November 29, 2011.

It said the terms of settlement contained a provision that the plaintiff paid the legal fees of Mr Osei Bonsu, although he had not rendered any service to him.

The statement said the plaintiff complied with the terms by making regular payments to Mr Osei Bonsu.

“Plaintiff avers that in total he paid US$200,000 to the 1st Defendant in payment of the judgement debt,” the statement said.

It said the plaintiff was under constant pressure from Mr Osei Bonsu, who threatened him at every available opportunity, to sell his house and render him and his family homeless, which made him agree to pay him the legal fees, in spite of the fact that Mr Osei Bonsu had rendered no service to him.

According to the statement, due to the onerous terms of the terms, plaintiff defaulted in payment and informed Mr Osei Bonsu that he could not make a month payment and that he was travelling outside the jurisdiction to bring in money in order to pay the outstanding instalments.

It said Mr Osei Bonsu told the plaintiff that unless he paid part of his said legal fees, he would sell his house, thereby compelling him to immediately make a part payment to him in respect of the said fees.

It said in spite of the understanding between him and Mr Osei Bonsu, Mr Osei Bonsu filed an application before the court for leave of the court to go into execution.

“The plaintiff herein avers that at all material times the aforesaid plaintiff in the suit referred to above was represented by the 2nd and 3rd defendants who were not licensed by the General Legal Council to practise as lawyers,” it said.

The statement said subsequently Mr Osei Bonsu obtained an order for the judicial sale of the house.

On February 22, 2013, Mr Osei Bonsu, it said, advertised in The Ghanaian Times which said a residential property at Tesano, belonging to Smagow, would be auctioned at 10 a.m. on Wednesday, February 27, 2013.

It said Mr Haizel, being fully aware that the said house was the property of the plaintiff, advertised same as the property of Smagow.

It said on February 27, 2013, Mr Haizel went to the plaintiff’s house with about four young men, met the plaintiff’s younger brother outside the house, pointed the house to them, made a phone call and rang a bell once and left.

According to the statement, the plaintiff confronted Mr Osei Bonsu about what Mr Haizel had done at his house and Mr Osei Bonsu assured him that the house was not to be sold and that so long as plaintiff continued with the payments, as agreed in the terms of settlement, his house would not be sold.

It said the plaintiff continued the payments to Mr Osei Bonsu and same were received and receipted for, all in the belief that plaintiff’s house would not be sold.

It averred that Nana Otu Baah, the purported purchaser of the plaintiff’s house, subsequently engaged the services of Kwame Amenano Tannor, an associate in the law firm Corporate Legal Concepts, to file a “motion ex-parte for leave to issue writ of possession” and who deposed to the affidavit in support and also attended court to move the said application.

It said at dawn on March 4, 2014, he and his family were all evicted from his house by a team of gun-wielding policemen and a number of young men.

According to the statement, the plaintiff had suffered loss and damage as a result of the unlawful eviction of his family and himself from his house.