carboo ltd vs akua mintu 12-12-11 - Jtighana.org

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF
JUSTICE ACCRA COMMERCIAL DIVISION, HELD ON WEDNESDAY THE 14 TH
DAY OF DECEMBER, 2011 BEFORE HIS LORDSHIP JUSTICE RICHARD
ADJEI-FRIMPONG.
========================================================
SUIT NO. RPC/75/08
CARBO LIMITED - PLAINTIFF
VRS
AKUA MENTU - DEFENDANT
AND
MALAM UMORO HUSSEIN - CLAIMANT
========================================================
PARTIES: ABSENT.
COUNSEL: CHARLES PUOZUING FOR PLAINTIFF/JUDGEMENT/
CREDITOR – PRESENT.
NASHIRU YUSIF FOR CLAIMANT – PRESENT.
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JUDGEMENT IN INTERPLEADER CLAIM
The main purpose of interpleader proceedings was articulated in the case of
SALAMI VS SHARANI (1973) 2 GLR 364 as follows:
“The most important object of an interpleader suit was to enable the
deputy sheriff against whom the claim was made and who has seized the
property and was now in possession thereof to obtain relief and to get a
decision of the court as regards the person to whom he had to release the
property”
The Supreme Court in the case of THE REPUBLC VRS HIGH COURT, ACCRA EX-
PARTE ANYAN (PLATINUM HOLDINGS INTERESTED PARTY) (2009) SCGLR
225 has similarly held per holding 1.
“A Sheriff’s interpleader would arise where a sheriff has seized or intended
to seize goods by way of execution and a person (other than the judgment
debtor) had made a claim to the goods taken or intended to be taken on
execution. In that regard, the proceedings initiated by the sheriff would
determine whether the property belonged to the Judgment Debtor (and
therefore could be seized) or to the claimant….”
See also R. T. BRISCOE GH. LTD. VS PREKO (1964) GLR 322.
Against this background the position should be clear that in sheriff’s
interpleader proceedings the fundamental issue is as to the ownership of the
seized property. Is the property for the claimant or for the judgment debtor?
It is with this understanding of the scope of the law that I proceed to examine
the facts and evidence adduced in these proceedings to make a determination.
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It will however be needful to state the brief background of the matter at the
onset.
Sometime in the year 2006, Carbo Ltd, the Plaintiff in the main suit transacted
with the Defendant Akua Mentu over the sale of a plot of land situate at La-
Bawelashie – Otele Accra. The transaction simply fell through. The Plaintiff
Company sued to recover the sum of $157,500 paid to the Defendant Akua
Mentu under the transaction and eventually obtained judgment. It was to
execute the judgment and realize the sum due that the Plaintiff caused to be
attached by a writ of fieri facias a piece of land supposedly belonging to the
Defendant.
Claiming that a portion of the land attached belonged to him, Malam Umoro
Hussein filed a notice of claim. The claim was disputed culminating in these
proceedings. For purpose of these proceedings this court directed Malam
Umoro Hussein to proceed as the Plaintiff and Carbo Ltd as the Defendant. In
this delivery however, I shall conveniently refer to Malam Umoro Hussein as
the Claimant and Carbo Ltd as the Execution Creditor.
Again at the inception of the instant proceedings, the issue arose over the
identity of the land which the claimant’s claim related. Counsel for the
execution Creditor had contended that the plot of land the claimant sought to
claim was different from the parcel attached. The two sides agreed for the
court to appoint a surveyor to prepare a composite plan showing the
identities of the land the feuding claims related. The plan and the report
submitted by the surveyor are in evidence as Exhibits “CE 1” and “CE 2”.
Having examined the evidence of the surveyor, the plan and the report, the
court makes a finding that the plot of land which the Claimant is claiming
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forms part of the larger parcel of which the execution Creditor claims to be the
property of the judgment debtor on account of which same was attached. The
parties are therefore ad idem on the subject matter; hence the issue remains
the determination of ownership.
It is also my view that the Claimant in this case stands in the position of a
plaintiff in any ordinary land suit. He therefore foremost assumes the burden
of proving his ownership or title to the land which his claim relates. He
discharges this burden by adducing sufficient evidence that will tilt the
balance of probabilities in his favour. This is in obvious accordance with
Sections 10, 11 (4) and 14 of the Evidence Act 1975 NRCD 323.
See FOSUA & ADO POKU VRS DUFIE & ADU POKU MENSAH (2009) SCGLR
310
YAW KWASI VRS ARHIN DAVIDS (2007-2008) SCGLR 58.
Learned Counsel for both the Claimant and the Execution Creditor sufficiently
addressed me on this position and concluded as I have done that the claimant
assumes the obligation of proving his claim. Perhaps I should say that having
regard to the nature of the documentary and other pieces of evidence adduced
on behalf of the Execution Creditor forming the basis of the claim that the
property belongs to Akua Mentu, the Judgment Debtor, the burden on the
Claimant becomes even heavier and more involving. And what was this
evidence?
Notably, the Execution Creditor (its representative) did not mount the box.
But Akua Mentu testifying in that behalf stated as follows:
She acquired her parcel of land measuring 3.91 acres from the La Klanna
Quater represented by its head Nii Kotey Amli III in March 1999. The grant is
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evidenced by an indenture (Exhibit ‘1’). She registered the land at the lands
Commission and later sought to register her title at the land Title Registry.
For this purpose she went through the process. She said she went to the land
valuation board to do the stamping then proceeded to the title Registry to
acquire a Yellow Card; then to the survey Department for a cadastral plan.
Thereafter she caused a publication to be done in the newspapers.
Then emerged one Kofi Amoakohene challenging her title registration. The
two of them with their lawyers were invited to the title Registry for
adjudication in the course of which her grantor, Nii Kotey Amli III confirmed
the grant to her.
In the end, the Title Registry found for her and issued her with the land
certificate Exhibit ‘4’.
She said after all this she decided to do some drainage work on the land. She
went to the Hydro Services and had an engineer to prepare drawings which
she tendered as Exhibits “11 and 11A”. She then bought Culverts and
constructed the drainage up to a point. Obviously, this testimony stands
strong in proof of title to the land; the epitome of it being the issuance of land
title certificate.
The defence in this case is further entitled to the benefit of the presumption
that the certificate was duly issued. The Land Title Registry in issuing the
certificate performed its official duty and by Section 37 (1) of the Evidence Act
1975 NRCD 323 “it is presumed that official duty has been regularly
performed”. This is a rebuttable presumption but it imposes upon the party
against whom it operates the burden of producing evidence and the burden of
persuasion as to the non-existence of the presumed fact:
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See AMEGASHIE VRS OKINE (1992) 2 GLR 319.
Again by Section 43 of the Land Title Registration Act 1986 of course subject
to the exceptions mentioned thereunder, the rights of a registered proprietor
of land for valuable consideration or by an order of a court are indefeasible
and shall be held by the proprietor together with the privileges and
appurtenances attaching to the land free from any other interests and claims.
This provision also enures to the benefit of the defence.
It is however never being suggested that because Akua Mentu was issued with
the Land Certificate her claim is conclusive and a done deal. Given particular
instances, the authorities have held that one’s title could be defeated. In
BROWN VRS QUASHIGAH 2003-2004 930, DR. Twum JSC at page 947 of the
report observes:
“In short, fraud is dishonesty. Was the Plaintiff dishonest in procuring the
registration of his lease? There appears to be a mistaken feeling abroad
that in land matters, once a party gets his title deeds registered on the
land title Register his title is indefeasible. That of course is not true.
Fraud vitiates everything”.
At page 945 His Lordship again observes:
“There is also the matter of over-riding interests. Section 43 (1) of the
land Title/Registrate Law 1986 (PNDC LAW 152) provides that subject to
Sections (2) (3) (4) and Section 48, the rights of a registered proprietor of
land acquired for valuable consideration or by an order of a court shall be
indefeasible and shall be held by the proprietor together with all
privileges and appurtenances attaching thereto free from all other
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interests and claims whatsoever. An indefeasible title means a complete
answer to all adverse claims on mere production of the certificate. Section
46 (1) of the law, however dilutes this indefeasibility by providing a
number of over-riding interest. One such over-riding interest is mentioned
in Section 46 (1) (F) that is “rights, whether acquired by customary law or
otherwise, of every person in actual occupation of the land save where
enquiry is made of such person and the rights are not disclosed”.
So in effect aside fraud, the law has made provisions for situations where the
indefeasibility of the title certificate could be negated typical among them
being over-riding interests.
Having said all that I turn to consider the evidence the claimant adduced to
discharge the onerous burden cast on him to prove his claim particularly to
negate the indefeasible effect the registration of Akua Mentu’s title carried.
The Claimant said he acquired the land from a certain Rose Amoah in the year
2002. He was given an indenture which he tendered as Exhibit ‘A’. He
registered at the Lands Commission. He sought to register his title at the land
title Registry and obtained a “Yellow Card” (Exhibit ‘B’). He went to Nii Kotey
Amli to obtain a letter of consent (Exhibit ‘C’). After paying for the land he
deposited gravels and thereafter made a dwarf wall. He has since raised the
dwarf wall to about 5 ft high. As at the time he was giving evidence he had
erected a fence wall on the plot. He stated that his plot shared boundary with
Kofi Amoakohene.
The Claimant called two (2) witnesses Abdul Karim Atanga said he was the
Claimant’s Cousin and was in his company when he paid Rose Amoah a sum of
¢600 million to purchase the land on the 4 th of January 2002. Rose Amoah
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issued a receipt to the claimant and asked them to come for the indenture
later. He said he was not present when the indenture was presented to the
claimant but the latter informed him. He disclosed that Rose Amoah has since
passed away.
PW2 was DR. Nii Kotey Djane who introduced himself as a principal member
of the Klanna Quater. He said he got to know the Claimant in 2006 when the
Claimant came for a letter of consent from the family (Exhibit ‘C’). He said he
was the one who typed Exhibit ‘C’. He denied that any 3.91 acre parcel of land
was granted to Akua Mentu, stating that Akua Mentu was only granted only
one plot of land by his family and that was even upon his intervention. He
said the subject plot belonged to the Claimant.
From the record this court did not order the parties to file pleadings in these
proceedings. Trial was done summarily. But from the Claimant’s case fraud is
being alleged against the title of Akua Mentu. The Claimant testified that even
though the parcel of land Akua Mentu is claiming was for Amoakohene, the
former managed to get title documents in her name and not only did she take
over Amoakohene’s land she is seeking to take over his land as well. Dr. Nii
Kotey Djane stated that Nii Kotey Amli III denies granting any such parcel of
land to Akua Mentu. The allegation of fraud became emphatic when Counsel
for the claimant cross-examined Akua Mentu as follows:
“Q: I put it to you that Exhibit ‘1’ the indenture evidencing the transaction
between you and the Klanna Quater is not known to the Klanna Quarter.
In fact Nii Kotey Amli never signed the document.
A: It is known to him
8

Q: I further put it to you that the signature on the indenture purporting to
be that of Nii Kotey Amli is not his signature it is a forged signature.
A: So far as I know it is his signature.”
Even though there are no pleadings from which the particulars of fraud could
have been clearly ascertained, I do understand the allegation to be that; the La
Klann a Quater per Nii Kotey Amli III has not granted any 3.91 acre land to
Akua Mentu yet Akua Mentu has procured a forged signature of Nii Kotey Amli
to prepare an indenture and on that basis registered her title knowing very
well that the land had been granted to somebody else.
I have no doubt in my mind that if this allegation were true it will constitute
fraud based on which the title registered could be nullified.
But then the Claimant must prove the allegation. Lord Esher in LE LIEVRE
VRS GOULD (1893) 1 Q. B. 491 at 498 observed that:
“A charge of fraud is such as terrible thing to bring against a man that it
cannot be maintained in any court unless it is shown that he had wicked
mind”.
The evidence of Akua Mentu was that the grant was duly made and that
Exhibit ‘1’ was duly signed by Nii Kotey Amli III.
Her witness Eric Amassah Amoa introduced himself as the Treasurer for the
La Klanna Land Committee and the secretary to the body they call Supreme
Council of La Klanna Quarter. Witness admitted that he was not serving on
the land committee at the time Akua Mentu Acquired her land but identified
the signature on Exhibit ‘1’ as that of Nii Kotey Amli III. He also said around
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2000/2001 after one of their family meetings Nii Kotey Amli instructed him to
issue a receipt to Akua Mentu. He said
“After the meeting Nii Kotey Amli and R. O. Kotey called me to R. O.
Kortey’s house who (SIC) was closer to our meeting place and they told me
the first committee gave a land to Madam Akua Mentu for which she has
paid for but she wasn’t given a receipt and the woman is making noise so I
should write a receipt covering the money she has paid to her. So I came
back to our office, picked the receipt book in the presence of Nii Kotey
Amli and R. O. Kotey I issued the receipt and give it to Akua Mentu”.
The Claimant’s contention that the signature on exhibit was forged was not
supported by any evidence. It remained a bare assertion. The burden of
producing evidence and persuasion on the fraud allegation in my view
required the Claimant to have called Nii Kotey Amli himself to give evidence.
In my thinking, Nii Kotey Amli III became a material witness on this issue and
the bearer of the burden of proof should have called him. He was not called
even though he is alive and according to Dr. Nii Kotey Djane though he is over
80 years, his mind is still sharp and could come to court to give evidence, the
only thing being that his movement is a bit impaired. It should not be
forgotten that forgery is a criminal act proof of which should be beyond
reasonable doubt even in a civil case.
See Section 13 (1) of NRCD 323.
I find no evidence of forgery and reject the Claimants contention. I also do
believe the account of Eric Amassah Amoa that Nii Kotey Amli instructed him
to issue the receipt for payment Akua Mintu had made for the earlier land
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acquisition. Dr. Nii Kotey Djane’s evidence that Nii Kotey Amli denies ever
granting any land to Akua Mentu is not credible. Talking about Dr. Nii Kotey
Djane, I think he did not impress me as a credible witness. He had told the
court that the La Klanna Quater ever granted only one plot of land to Akua
Mentu and even that was upon his intervention. Akua Mentu however was
able to demonstrate that he had acquired land several times from the family
some for herself and others for her children. She tendered Exhibits ‘6’ and ‘7’
to establish this. She further demonstrated that out of the land she acquired
from the La Klanna Quater she had conveyed portions to other developers
who are in possession without any protest from La Klanna Quater. Dr. Nii
Djane admitted this fact under cross-examination.
I make a finding that Exhibit ‘1’ is a valid document and that the conveyance of
the 3.91 acre land was actually made to Akua Mentu. The Claimant failed to
prove the allegation of fraud and it falls flat on the face. Learned Counsel for
the claimant addressed the court on fraud. Having quoted several statements
on the subject he submitted as follows.
“The position of the courts on the effect of fraud on orders, judgment and
transactions is well known. Suffice it to say that the court take a serious
view on allegation of fraud and their effect on transaction Orders and
judgments”.
I agree with Counsel that the courts take a serious view on allegations of fraud
but the courts also insist that when the allegations are made they established
and established cogently. They are not made and left unproven. And this is
exactly what has happened in this case.
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The Claimant also failed to prove that his interest over-rides that of Akua
Mentu. My understanding of Section 46 (1) (F) which is the closest provision
the claimant could have relied on is that the one claiming the over-riding
interest must have been in actual occupation of the land before the acquisition
of the purported interest giving rise to the registered title. The rationale
behind this provision should not be for fetched. It should be preposterous for
one to take a grant of land whilst another person is in actual occupation. So
that if one takes that grant and mindlessly proceeds to register that title then
under the provision the interest of the one in actual occupation will over-ride
that which was registered unless of course an inquiry was made of the
occupant’s interest and was not disclosed.
There is no evidence that the claimant or even his predecessor Rose Amoah
was in actual occupation of the land before same was granted to Akua Mentu
in 1999. The Claimant said he deposited gravels and also made a dwarf wall
on the land. But he admits he acquired the plot in 2002. So if he did anything
on the land it could have been in 2002 or thereafter. That should be 3 years or
so after Akua Mentu had been granted the land. The Claimant therefore could
not have been in actual occupation of the land before 1999 when the land was
conveyed to Akua Mentu.
The Claimant said he had made a dwarf wall on the land. Of course that has
not been disputed by the defence. But the Claimant does not also dispute the
fact that Akua Mentu has constructed drains and culverts on the land. For me,
this is suggestive of a scramble between the two. The Claimant cannot claim
to have been in actual occupation of the land. His evidence that he had fenced
the plot does not hold water. He admits that he did the fencing in 2010. The
record shows that as at 2010 the land had even been attached by the instant
12

writ of fifa. The execution by the Execution Creditor had therefore
commenced.
Beside, the Claimant’s root of title was not impressive. In Exhibit “A” it is
recited that one E. Ablade Kotey made a deed of gift and gave the plot to one B.
N. Sackey.
It is further recited that B. N. Sackey conveyed the plot to one V. F. Mensah
then the said V. F. Mensah conveyed the plot to Rose Amoah the Claimant’s
immediate predecessor in interest.
The overwhelming evidence on record, almost a matter of public knowledge is
that that area of Bawaleshie land has been the property of the La Klanna
Quater.
The capacity in which Ablade Kotey made a gift of the plot to B. N. Sackey has
not been established. The question of whether Ablade Kotey on his own could
make a gift of the plot to B. N. Sackey remains unanswered. Was he the head
of the quarter, and if he was, did the principal members consent to the gift?
In my view if the issue is about ascertaining a prior interest, these questions
are not frivolous.
And to muddy the Claimant’s waters further was the subsequent grant of the
land to Akua Mentu by Nii Kotey Amli III who from exhibit ‘1’ acted as the
lawful representative and head of family and with the consent and
concurrence of the principal Elders of the Quarter. It is again not contradicted
that in the dispute between Akua Mentu and Amoakohene, Nii Kotey Amli
confirmed the grant to Akua Mentu.
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On the evidence before me, these events clearly defeat the purported gift
Ablade Kotey made which eventually gave birth to the purported acquisition
by the Claimant. Considering the role Nii Kotey Amli played in the grant of the
land to Akua Mentu and its subsequent registration. I question whether the
letter of consent which Dr. Nii Kotey Djani claims he typed had the blessing of
Nii Kotey Amli III. No wonder then that on that letter of consent Exhibit ‘c’,
the name of the assignor is indicated as Rose Asamoah and not Rose Amoah.
I am therefore not persuaded to accord any weight to Exhibit ‘C’. With the
evidence thoroughly considered, I come to the conclusion that the Claimant
could not establish a title superior to that of Akua Mentu. He could not prove
the allegation of fraud and could not also demonstrate that his interest over-
rides that of Akua Mentu.
The land title certificate issued to Akua Mentu stands indefeasible, there being
no ground to nullify it.
I accordingly agree with Counsel for the Execution Creditor that the Claimant
failed to prove a better title. The Claim is accordingly dismissed.
The court awards costs of GH¢4,000 for the Execution Creditor.
(SGD.)
RICHARD ADJEI-FRIMPONG
JUSTICE OF THE HIGH COURT
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