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JUDGEMENT
BY COURT:
This suit is an interpleader
claim from Suit No. C 315/03,
which went on an appeal from the
High Court Accra to the Court of
Appeal, after the High Court had
dismissed the claimants claim.
The Court of Appeal on 25th
January, 2007, allowed the
appeal and ordered a
redetermination of the
Appellants claim.
This is contained in exhibit 6
which is the Judgement of the
court of Appeal. In exhibit 6,
the court of Appeal said the
Trial Judge should indicate the
manner that the proceedings must
take as it is entirely the
preserve of the Trial Judge.
The Trial Judge ordered that
pleadings be filed with the
claimant being the Plaintiff and
the Judgement creditor disputant
being the defendant. The
Plaintiff filed a writ and
Statement of Claim on 24th
April 2008, but same was amended
with leave of Court on 13th
May 2009.
The amended claim is as follows:
a)
A declaration that all that
piece or parcel of land situate,
lying and being at Motorway East
Industrial Estates – Accra
containing an approximate area
of 1.60 Acres and bounded on the
North by road measuring 350 feet
more or less, on the south by
road measuring 350 feet more or
less, on the East by road
measuring 200 feet more or less,
on the West by Assignor’s land
measuring 200 feet more or less
is the property of Plaintiff and
that Defendant cannot attach
same.
b)
An order directed at the Deputy
Sheriff to release Plaintiff’s
land from attachment.
c)
General damages against the
Defendant for wrongful
attachment of Plaintiff’s
property.
d)
Perpetual injunction restraining
Defendant, his agents, assigns
successors etc from interfering
or dealing with property in any
form.
e)
Cost
f)
Any further orders as this Court
may deem fit.
The issues set down for trial
were as follows:
-
Whether or not title in the
said property, the
subject-matter still resides
in the Plaintiff.
-
Whether or not the Plaintiff
is entitled to the remedy of
having the property released
from attachment.
-
Whether or not the property
under attachment legally
belongs to Elmako Ltd,
Emmanuel Mensah Xenyo, the
Defendant/Judgement/Debtor
in Suit No.315/2003.
-
Whether or not the Defendant
in the instant suit is
entitled to attach the said
property in satisfaction of
the Judgement obtained in
Suit No. 315/2003 aforesaid.
-
Whether or not the
action/Claims of the
Plaintiff are sustainable
against the Defendant or
not.
-
Whether or not Plaintiff
re-possessed the land sold
earlier to Elmako Ltd due to
the non performance by
Elmako Ltd of the purchase
contract.
-
Whether or not Plaintiff
resold the land to others.
-
Whether or not at the time
Elmako Ltd used the said
land as guarantee in his
business transaction with
Defendant, Elmako Ltd was
the owner of the said land.
-
Whether or not Plaintiff
knew and understood the
contents of the letter dated
17th March, 2004,
before appending his
thumbprint to it.
-
Any other issues arising
from the pleadings so far
filed.
Since this is an interpleader
action, issues 1, 3, and 8 may
be said to be the main issues
whose resolution will lead to
the resolutions of the other
issues.
A summary of the three issues
may be as follows:
Whether the property under
attachment legally belonged to
the Judgment Debtor in Suit No.
C 315/2003 i.e. Elmako Ltd or
Emmanuel Mensah Xenyo or to the
claimant who is the Plaintiff in
this suit. As held by the Court
of Appeal in its Judgement dated
25th January 2007,
“the
Judgement/Creditor/Executioner
in this case the Defendant,
assumed the burden of proving
his title to the same degree as
a Plaintiff in a suit for
declaration of title.
The Plaintiff, who is the
claimant relied on exhibit ‘C’
with Land Registry No. 1946/1998
as his root of title whereas the
Defendant’s root of title seem
to be exhibit ‘B’ which is
described as Deed of Assignment
between Hunu Akwei and Kpokpo
Adotey on one hand and Emmanuel
Mensah Xenyo on the other hand.
This exhibit ‘B’ is dated 20th
December 1999, whose oath of
proof was on 15th
August 2000. This document has
not been stamped under the Stamp
Act and also not registered.
There is however an indication
that it was presented at lands
commission Accra, on 31st
July, 2001. The defendant
however relied on exhibit ‘4’
which is a gurantee for the
performance of a contract. This
exhibit ‘4’ is dated 14th
May, 1997. Clause 2 of exhibit
‘4’ reads as follow:
“That in further assurance to
the principal, the Guarantor has
verbally informed the principal
in the presence of Mr. Seth
Agyekum of Take a look
Enterprise/Hawks Electricals
that he has the following
assets, among others, which he
would readily relinquish to
settle any claim of the
principal arising out of a
breach or default of the
Contractor.
a)
9 plots of land (80’ x 100’)
situate at Spintex Road.
b)
Brand new Tipper Truck purchased
for $40,000
c)
Presently carrying out a
contract of putting up AKATSI
market which is funded by the
World Bank/ASIP and guaranteed
by Ghana Commercial Bank.
Claus 3 also reads as follows:
“The guarantor hereby warrants
that he is the beneficial owner
of the said assets free from any
incumbrance charge lien or
claims in favour of or by any
other person and the principal
shall accept without
investigation requisition or
objection the title of the
Guarantor to the said asset.
In exhibit 4, the 9 plots of
land mentioned in clause 2 (a)
were not described, but the
defendant claimed in his
pleading and evidence that it is
the land covered by exhibit
‘B’. Exhibit ‘B’ is dated 20th
December 1999 and the oath of
proof was on 15th
August 2000. Exhibit ‘4’ is
however dated 14th
May, 1997. This indicates that
as at 14th May, 1997
when exhibit ‘4’ was executed
the Judgement Debtor, Emmanuel
Mensah Xenyo had no plots of
land situate at Spintex Road,
for which plots he would readily
relinquish to settle any claim.
Since exhibit ‘B’ was then not
in existence, the Defendant
could not inspect it as he
admitted under cross
examination. Apart from the
fact that exhibit ‘B’ was not in
existence at the time that
exhibit ‘4’ was executed,
exhibit ‘B’ has also not been
stamped and registered.
Section 16 of the stamp Act,
1965, (Act 311) states as
follow:
1)
Every instrument relating to the
creation or transfer of any
estate or interest in land which
is submitted to the commissioner
for assessment of the stamp duty
chargeable thereto, shall be
accompanied by a statement in
the form set out in the second
schedule to this Act.
2)
The statement shall be signed by
the grantee or transferee or by
some person authorized to do in
writing on his behalf.
3)
When the commissioner has been
furnished with the statement
required by this subsection, he
shall impress upon the
instrument a stamp bearing the
words ‘particulars delivered’.
In Antie & Adjuwuah Vrs. Ogbo
(2005-06) SC GLR 494, the
Supreme Court relied on its
decision in Nartey Vrs.
Merchanical Llyod Assembly Plant
Ltd (1987-88) 2 GLR 314 which
cases held that “……. The
document is not a mere writing
relating to any money had and
received, but an instrument
relating to the transfer or sale
by the plaintiff of his property
to the purchaser…..” The
document is therefore not a
‘receipt’ within the meaning of
Section 46 of Act 311 … it is
rather a conveyance on sale,
within the meaning of Section 32
and contains particulars
affecting land under Section 16
of the Act. Instruments such as
the documents in the instant
case are required under section
16(3) of Act 311 to bear an
impressed stamp. However, since
there was no impressed stamp on
that purported conveyance it was
legally worthless and its
admission contravened section
14(5) of Act 311, for in law it
should not have been admitted in
evidence or made available for
any purpose.
Apart from the stamp, exhibit
‘B’ has not been registered
under Section 24(1) of Act 122.
It is therefore ineffective and
invalid to confer right and
impose obligations as was held
in Asare Brs. Brobbey (1971) 2
GLR 331 and approved by the
Supreme Court in Hammond Vrs
Odoi (1982-83) GLR 1215 and
applied in Nartey Vrs Mechanical
Lloyed Assembly plant (Supra).
Even though exhibit ‘B’ was not
tendered by the Defendant, but
by the Plaintiff, it was used to
explain the basis of the
Defendants claim. The Defendant
himself relied on it as the
title of Xenyo.
Again exhibit ‘4’ which the
Defendant relied on was not
registered under section 3 sub
section 2 of the Mortgages Act
1972 (NRCD 96). The non
registration rendered it in
effective.
In Asare Vrs. Brobbey & Ors
(1971) 2 GLR331, the court of
Appeal held that since the
mortgage deed was not registered
at the time the power of sale
was exercised the document
itself was ineffective and
invalid to confer the rights and
to impose the obligation
stipulated in the mortgage deed.
In this case, the Defendant has
not shown any documents
disclosing the title of Emmanuel
Mensah Xenyo except exhibit ‘B’
which was executed on 20th
December 1999 whereas exhibit
‘4’ was executed on 14th
May 1997. The import of this is
that as at 14th May
1997, Emmanuel Mensah Xenyo had
no interest in any land as he
stated in exhibit ‘4’.
In Republic Vrs. High Court,
Accra Exparte Chinto (1993-94) 1
GLR 159 the Supreme Court held
that …… since Kotex Ltd, the
defendant in that suit was not
the owner of the mortgaged
property that property could not
be properly sold”.
The Defendant also relied on
exhibit 1 which is a letter
dated 17th March
2004. The Plaintiff denied that
he understood the context to
mean what it contains, since
according to the plaintiff’s
attorney the plaintiff
thumbprinted exhibit 1 because
it was sent to him with the
instructions that he should
thumbprint as it was a receipt.
The defendant who relied on this
exhibit ‘1’ did not call any
witness to give evidence on
this. He himself was also not
present when it was executed.
There is no jurat on exhibit 1
either. In the case of Nartey
Vrs. Mechanical Lloyed Assembly
plant (1987-88) 2 GLR 314 it was
held in holding 6 that the
document was not valid because
on the evidence it was not read
over to the Frafraha Mantse an
illiterate. Section 4(1) of the
Illiterate Protection Ordinance
Cap 262 mandatorily required any
person who prepared a document
for an illiterate person to
correctly read over and explain
such document or cause the
document to be read over and
explained to the illiterate
person. Section 4(3) enjoined
the writer to clearly write his
full name and address on the
document as the writer thereof
but those provisions were not
complied with in the execution
of exhibit ‘F’.
The Plaintiff however relied on
exhibit ‘C’ which has been
registered. There is also
exhibit ‘E’ which is dated 15th
February 2002, which is a
receipt from Emmanuel Mensah
Xenyo that his part-payment of
GH¢2,400.00 in respect of
purchase of land situated at
Motorway East Industrial Area,
has been refunded to him.
There is also exhibit ‘L’ which
is a search report dated 22nd
December 2004, which indicated
that a lease dated 21st
February, 1994 from Nii Afotey
Odai IV to Hunu Akwei and
Another is in the books of Lands
Commission. This exhibit ‘L’
refers to exhibit ‘C’ which has
been registered.
In Akyea-Djamson Vrs. Dugbor and
ors. (1989-90) 1 GLR 223, the
Supreme Court held that “… by
the provisions of Section 25(1)
of the land registered Act 1962
(Act 122) and Section 20 of NRCD
323, the fact of registration
raised a presumption of the fact
of ownership and that
presumption operated against the
Co-defendant, the Defendants and
all others through whom they
claimed unless they could rebut
it.
Since the Defendants root of
title is from Emmanuel Mensah
Xenyo, and Xenyo has admitted by
exhibit ‘E’ that he failed to
complete the purchase of the
plots from Hunu Akwei and Kpakpo
Adotey, the Defendant cannot
attach those plots to defray the
indebtedness of Emmanuel Mensah
Xenyo.
Defence Counsel has argued that
since the plaintiff says he has
sold the plots to other persons,
the Plaintiff has no capacity to
commence this action.
The Plaintiff however gave
evidence that he withdrew the
assignment made to Emmanuel
Mensah Xenyo, and refunded the
part payment made, which
Emmanuel Menasah Xenyo admitted
by Exhibit ‘E’. He then gave
those who have built on the
land, site plans to take same to
Lands Commission for them to
process their documents in their
names.
According to P.W.1 when they saw
the Court notice that the entire
place, was going to be sold,
they went to the Plaintiff and
told him that since they bought
the land from him, he should go
and defend the action. Again
P.W.1 said he went to Lands
Commission, Accra and saw that
the land was in the name of the
Plaintiff.
Since the Plaintiffs title
exhibit ‘C’ has been registered,
but that of Xenyo, P. W. 1 and
P.W. 2 have not been registered
under Section 24(1) of Act 122,
they were all ineffective and
invalid to confer rights and
impose obligations. The
Plaintiff being the only person
with a registered title and the
person who gave the land to P.W.
1 and P.W.2 I hold that he has
capacity to litigate over the
land.
On the submission that the
Plaintiff has not proved the
identity of the land he claims,
and therefore the claim must
fail, my humble opinion on this
line of submission is that
through out the trial, the
identity of the land was not
made an issue. There is
evidence from the defendant that
he never visited the land and
also did not see the document on
the land, yet he directed the
deputy sheriff to attach some
plots. It is these plots that
had been attached that the
Plaintiff claimed belonged to
him. Since the parties were in
common agreement about the land
in issue, the failure to give
the boundaries is not fatal to
the Plaintiff’s case.
This is the rational in holding
4 of the Court of Appeals
decision in Sah Vrs. Darku
(1987-88) GLR123. It must also
be noted that a plan was
attached to exhibit ‘C’ which is
a registered document. I
therefore reject this submission
and hold that the parties knew
the land in dispute.
In the result I enter Judgement
for the Plaintiff as follows:
a)
That title in the land the
subject matter of this dispute
resided in the Plaintiff, at the
time of the attachment
b)
That the attachment of the land,
the subject matter of this
dispute in satisfaction of the
Judgement debt in Suit No. C
315/03, is not proper and the
Deputy Sheriff, high Court,
Accra is ordered to release
same.
c)
The Defendant, his agents,
servants, successors etc are
perpetually restrained from
interfering or dealing with the
property in dispute.
d)
Nominal Damages of GH¢5,000.00
against the Defendants.
Counsel: Mrs.
Rebecca Boakye for Plaintiff
Mr. Foster Gbonney for
Defendant.
(SGD)MR. JUSTICE
S.H. OCRAN
Justice
of the High Court
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