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JUDGMENT:
In this matter, the Plaintiff
suing per her lawful attorney
claims against the Defendants:
“a. Declaration of Title
to all that parcel of land
situate and lying at Adjirigano
on the Northern portion of the
Accra Tema Motorway and bounded
on the North-East by Plot No. 59
and measuring 100 feet more or
less along the North-Eastern
boundary; and bounded on the
South – East by Plot No. 58 and
measuring 120 feet more or less
along the South – Eastern
boundary; and bounded on the
South –West by a proposed road
and the property of Rev and Mrs.
Justice Sawyer Williams and
measuring 120 feet more or less
along the North – Western
boundary and covering
approximately a total area of
0.20 acres more or less and
particularly delineated on a
site plan.
b. An order directed at
the 2nd Defendant to
cancel Land Title Certificate
issued to the 1st
Defendant.
c. Recovery of
possession.
d. Perpetual injunction.
e. General Damages”.
After the service on the
Defendants of the writ of
summons and its accompanying
statement of claim, the
Defendants caused Appearance to
be entered on their behalf.
Thereafter, the 1st
Defendant filed a statement of
defence whereas the 2nd
Defendant remains in default of
defence even up to this date.
At the close of pleadings the
following issues were adopted
for trial:
(a)
Whether the Plaintiff
obtained a valid grant of the
land in dispute.
(b)
Whether 1st
defendant obtained a valid grant
of the land in dispute.
(c)
Whether 1st
Defendant’s Land Title
Certificate was obtained by
fraudulent.
At the trial, the Plaintiff’s
attorney gave evidence on behalf
of the Plaintiff and thereafter
called four (4) persons to
testify in support of the case
for the Plaintiff. The 1st
Defendant gave evidence after
which he also called two persons
to testify in support of his
case.
From the evidence on record one
fact stands out which is common
to the case of the parties and
that is; both parties trace
their title to a common allodial
owner which is the Ashong Mlitse
Family of the Odaitei Tse We of
Teshie, Accra.
However, whereas the 1st
Defendant traces his root of
title through one Kweku
Mousieyiri, the Plaintiff traces
her root of title through a
couple in the persons of Peter
Agudogo and Jane Agudogo per
Exhibit C – a Deed of Assignment
dated the 20th July,
1999.
The case for the Plaintiff is
that she and her sister the
Plaintiff’s Attorney met Mr. and
Mrs. Agudogo in 1998 and learnt
that the couple had a piece of
land at a place called
Adjirigano in Accra which they
wanted to sell. After
negotiations the couple
transferred their interest in
the said plot of land to her and
her sister and executed a Deed
of Assignment in favour of the
Plaintiff. The land was made up
of two plots. So they took a
plot each and had separate Deeds
of Assignment executed for them.
The Plaintiff’s Deed of
Assignment was received in
evidence as Exhibit ‘C’.
The evidence on record is to the
effect that prior to the
assignment to the Plaintiff,
Peter Agudogo and Jane Agudogo
had acquired the said parcel of
land from the Ashong Mlitse
Family of the Odaitei Tse We of
Teshie, Accra represented by the
Head and Lawful representative
in the person of Seth Laryea
Mensah. The evidence of the
Plaintiff’s acquisition of the
land in question is amply
supported by the Plaintiff’s
witnesses including Samuel
Afotey Tetteh the current head
of the Ashong Mlitse Family who
testified as PW4 in this
matter. Samuel Afotey Tetteh
identified Exhibit ‘B’, a Deed
of Lease executed by Seth Laryea
Mensah in favour of Peter and
Jane Agudogo in respect of the
land in issue on the 1st
day of January, 1998. I find
that Exhibit ‘B’ is registered
with the Lands Commission with
registration number AR/3196/98.
The Plaintiff’s Attorney
testified that after the
acquisition of the land, the
Plaintiff constructed a fence
wall around the property and put
a gate at the entrance. The
Plaintiff also built a wooden
shed on the land to be used as a
storehouse for her building
materials. The Plaintiff also
placed caretakers in the wooden
shed to take care of the land on
her behalf. Crops and other
plants were cultivated on the
land by the Plaintiff.
The Plaintiff submitted her
Assignment to the Land Title
Registry which issued her with
exhibits D, D1 and D2, which are
all evidence of receipt of
Plaintiff’s application for
title registration.
There is evidence to the effect
that the Plaintiff’s Attorney
Rebecca Kabukie Adjalo had built
on her part of the land which
they acquired from Peter Agudogo
and Jane Agudogo.
The case of the 1st
Defendant is very pathetic.
According to him, he retired
from the Ghana Armed Forces as a
Lt. Colonel and could not find a
job at that age so he decided to
use his end of service benefit
to buy a plot of land, develop
it, rent it out and live on it
for the rest of his life. I
sympathize with the 1st
Defendant.
The 1st Defendant
says he was shown two plots of
land at East Legon. One of the
plots had a kiosk on it and the
other one was bushy with nothing
on it. The 1st
Defendant says that one Philip
Mousieyiri a son of a Kweku
Mousieyiri was the person who
showed him this plots of land.
Philip Mousieyiri told the 1st
Defendant that the land belongs
to his deceased father Kweku
Mousieyiri and that he wanted to
sell it and use the proceeds to
pay his school fees.
The 1st Defendant
said in his evidence that he
conducted a search both at the
Lands Commission and the Land
Title Registry and found that
whereas the land was registered
at the Lands Commission, it was
not registered at the Land Title
Registry. The Search Report was
received in evidence as exhibit
2.
When he became satisfied with
the results of the search, the 1st
Defendant paid as much as
¢150,000,000 for the land and he
was given the necessary
documents. Exhibits 3 and 4
were received in evidence.
Exhibit 3 is a lease purportedly
executed by Seth Laryea Mensah
as head and lawful
representative of the Ashong
Mlitse Family of the Odaitei Tse
We of Teshie, Accra. The Lessee
in exhibit 3 is one Kweku
Mousieyiri. It was executed on
the 20th day of
August, 2002 and it is
registered bearing number AR
6334/2002. Exhibit 4 is a Deed
of Assignment executed on the 9th
day of July 2007 and made
between Philip Mousieyiri and
the 1st Defendant.
According to the 1st
Defendant, after obtaining the
grant he proceeded to register
same with the Land Title
Registry whereupon he was issued
with a Land Title Certificate
tendered as exhibit 5 herein.
The 1st Defendant
says that when he went to the
land to prepare it for his
building project to start he was
challenged by the Plaintiff or
the Plaintiff’s Attorney. The
matter eventually ended at the
Police Station from where it
finally travelled to the Court.
From the evidence and the
pleadings before me, I find that
the pith of the 1st
Defendant’s case is that, when
he saw the land, he conducted a
search and when he was satisfied
with the results he acquired the
land, registered same at the
Lands Commission as well as the
Land Title Registry where he was
issued with a Land Title
Certificate. In effect 1st
Defendant says that having been
issued with a Land Title
Certificate his title to the
land has become indefeasible.
On the other hand the 1st
Defendant says that he is a bona
fide purchaser of the disputed
land for value without notice of
the Plaintiff’s interest.
The Plaintiff has taken issue
with the Land Title Certificate
issued to the 1st
Defendant by the 2nd
Defendant. According to the
Plaintiff the 1st
Defendant acquired his Land
Title Certificate through
fraudulent means. Indeed the
Court finds the issue of fraud
to be the main question which
the Court is called upon to
determine.
Before discussing the issue of
fraud raised by the Plaintiff
however, there is the issue
whether or not the grant to
either of the parties is valid.
The Plaintiff obtained her grant
per exhibit ‘C’ an Assignment
from Mr. and Mrs. Agudogo in the
year 1999. The evidence on
record reveals that Mr. and Mrs.
Agudogo also obtained a grant of
the land in dispute from the
Ashong Mlitse Family of the
Odaitei Tse We of Teshie,
Accra. This is supported by a
Deed of Lease dated 1st
January, 1998. The present
head of the grantor family had
testified to the grant of the
disputed land to Mr. and Mrs.
Agudogo in the year 1998 per
exhibit B – the Deed of Lease.
On the other hand the head of
family had challenged the grant
of the same land to Kweku
Mousieyiri the person through
whom the 1st
Defendant claims. According to
the head of family PW4, the
family could not grant the land
in dispute to Kweku Mousieyiri
in view of the earlier grant to
Mr. and Mrs. Agudogo.
Indeed it is clear from exhibit
‘3’ the purported indenture
allegedly made by the head of
family Seth Laryea Mensah to
Kweku Mousieyiri that the
alleged conveyance was made on
the 20th day of
August, 2002. Again exhibit 4
the Assignment between Philip
Mousieyiri and the 1st
Defendant was made on the 9th
day of July 2007. These dates
on exhibits ‘3’ and ‘4’
post-date the date on which
exhibit ‘B’ was made. Exhibit
‘B’ the lease between the head
of family on one side and Mr.
and Mrs. Agudogo on the other
side is dated the 1st
day of January 1998. Again
exhibit ‘C’ the Assignment
between the Agudogos and the
Plaintiff is dated July 20th
1999.
Clearly, at the time that the
alleged grant in exhibits ‘3’
and ‘4’ were made the land in
dispute had long been conveyed
to Mr. and Mrs. Agudogo by the
head and lawful representative
of the Ashong Mlitse Family of
Odaitei Tse We of Teshie. It
follows therefore that, in
respect of the same land, there
was nothing for the family to
convey to Kweku Mousieyiri the
alleged grantor of the 1st
Defendant. In other words the
family led by its head cannot
convey to Kweku Mousieyiri a
piece or parcel of land which
they do not have. Nemo dat
quod non habet. In
explaining this principle in the
case of Western Hardwood
Enterprises Limited vs. West
African Enterprises Limited
[1998-99] SCGLR 105
Aikins JSC quoted with approval
the principle of law as espoused
by Nettleton J in HOCKMAN
vs. ARK HURST (1920) FC 20
-21, 101 where it is stated
that:
“Now, it is an elementary
principle of law that nemo
dat non quod habet, in other
words a vendor of land can give
no better title than he
possessed himself, and if the
stool had as a fact sold to the
plaintiff as he alleges in 1914
(remaining in law a constructive
trustee for him until his legal
estate was perfected by
conveyance) a subsequent
conveyance by the same stool of
the same piece of land to
another party, i.e. the
defendant, would clearly not
avail the latter. But if the
defendant bought the land as
defendant contends, obtained a
proper assurance in the shape of
a conveyance as a bona fide
purchaser for value, and without
being a party to any fraud, and
without notice and registered it
in the land registry, the
position is altered…”
The grant to the said Kweku
Mousieyiri is therefore invalid
and I hold that exhibit ‘3’
operated to pass nothing to the
said Kweku Mousieyiri.
By paragraphs 8, 9, 10 and 11 of
his Amended Statement of Defence
filed on the 16th of
February, 2011 the 1st
Defendant maintained that the
disputed land was granted to
Kweku Mousieyiri by the Odaitei
Tse We family in 2002 and for
that matter the land in dispute
belongs to Kweku Mousieyiri. In
paragraph 11 the said Kweku
Mousieyiri is described as
‘late’. The 1st
Defendant’s evidence is to the
effect that when he needed land
to buy one Philip Mousieyiri
showed him two plots of land and
document covering the said land
and then Philip Mousieyiri told
him the 1st Defendant
that the said land belongs to
his deceased father Kweku
Mousieyiri. Later, after
satisfying himself, he obtained
a grant of the land from Philip
Mousieyiri. The 1st
Defendant tendered exhibit ‘4’
an Assignment from Philip
Mousieyiri to 1st
Defendant.
The Plaintiff has questioned the
validity of the grant to the 1st
Defendant. The evidence shows
clearly that the alleged Philip
Mousieyiri has not been granted
any land by the Ashong Mlitse
Family of Odaitei Tse We. So
how can he purport to convey any
land allegedly granted by the
said family to the 1st
Defendant?
Even if it is true that the
family had leased the land to
Kweku Mousieyiri, there is
nothing on record to show that
the said Kweku Mousieyiri had
authorized Philip Mousieyiri to
convey the said land to the 1st
Defendant.
The matter becomes worse in view
of the evidence on record that
at the time of conveyance by the
said Philip Mousieyiri, the
alleged owner of the land Kweku
Mousieyiri was dead. Hence in
the view of the Court, a mere
statement that Philip Mousieyiri
was the son of Kweku Mousieyiri
was not enough. In the opinion
of the Court the 1st
Defendant should have led
credible evidence to show that
the said Philip Mousieyiri had
the authority to deal with and
practically manage the estate of
Kweku Mousieyiri. This could be
done by tendering either a
Probate/Vesting Assent or
Letters of
Administration/Vesting Assent to
show firstly that Kweku
Mousieyiri was dead and more
importantly that Philip
Mousieyiri had been appointed by
the Court to administer the
estate of Kweku Mousieyiri and
that he had the requisite legal
capacity to deal with the estate
of Kweku Mousieyiri.
This is particularly important
given that the property was not
transferred at customary law but
in accordance with statutory
requirement. If the law was not
so, anybody at all claiming that
another person who was his
father or relative and now
deceased could, without more,
deal with the property of the
relative and that would surely
be a fertile avenue for stealing
and fraudulent transactions. The
law was succinctly stated in the
case of In re Appau (decd);
Appau vs. Ocansey [1993-94] 1
GLR 146 C.A. that:
‘The general rule was that since
an administrator derived his
authority entirely from the
appointment of the court, a
party who was entitled to
administration could not do
anything as an administrator
before letters of administration
were granted to him’.
See also Republic vs. Bonsu
[1999-2000] 1 GLR 523 HC;
where it was held that:
‘Any person who took possession
of and administered or otherwise
dealt with the property of a
deceased person other than a
person named as executor in a
will or any person appointed by
the court to administer the
estate, was guilty of
intermeddling’.
I will hold that Philip
Mousieyiri in the circumstances
of this case has no capacity to
assign the alleged property, the
land in dispute to the 1st
Defendant and for that matter
the purported assignment is
hereby nullified and set aside.
Surprisingly, exhibit ‘3’ the
alleged lease to Kweku
Mousieyiri which was made on the
20th August 2002 gave
to the grantee a term of 99
years lease. Exhibit ‘4’ the
Assignment by Philip Mousieyiri
purports to draw its root from
exhibit ‘3’. Exhibit 4 was
allegedly made on the 9th
day of July 2007. In spite of
all these facts, exhibit 4
purports to convey to the 1st
Defendant a term of 99 years.
This is very strange because
even if one takes the view that
exhibit 3 the alleged lease is a
valid document, by virtue of its
date of execution that is 20th
August 2002, the residue of
Kweku Mousieyiri’s interest in
the land would still not be 99
years in the year 2007 to enable
the said Philip Mousieyiri to
grant same to the 1st
Defendant. Hence even in
respect of the term of the
Assignment in exhibit ‘4’, the
grant to the 1st
Defendant is invalid in view of
the principle of nemo dat quod
non habet.
In his evidence in chief, the 1st
Defendant testified that when he
was shown the land, he was also
given a site plan with which he
conducted a search at the Lands
Commission. Exhibit 2 the
report of the search conducted
by the 1st Defendant
was tendered in evidence.
Attached to the said report is
the site plan allegedly given to
the 1st Defendant.
A critical scrutiny of the site
plan attached to the search
exhibit 2 shows that the land
about which the search was
conducted measures 0.709 acre or
0.287 hectare. On the other
hand the site plan attached to
exhibit ‘3’ the lease shows that
the land conveyed by the said
lease exhibit 3 measures 0.25
acre or 0.10 hectare.
Nevertheless, the land conveyed
by exhibit 4 the Assignment to
the 1st Defendant is
described in size by the
attached site plan in exhibit 4
as being 0.230 acre or 0.090
hectare.
It is difficult for the Court to
reconcile these discrepancies in
the area of land conveyed given
that paragraph 2 of exhibit 4
the Assignment purports to
convey to the 1st
Defendant four (4) plots of
land. At the same time
paragraph 3 of the Assignment
exhibit ‘4’ purports to convey
an area of land measuring 0.230
acre or 0.090 hectare, whereas
the land conveyed by exhibit 3
measures 0.25 acres.
One could also see that whereas
the edge of the land in the site
plan attached to the search
report exhibit ‘2’ has been
marked with red ink, a blue ink
has been used to divide the area
of land shown therein and the
alphabets ‘A’ and ‘B’ written
therein. Again pencil has been
used to write or indicate 80
feet and 70 feet on the site
plan. The Court finds that an
attempt was made by either the 1st
Defendant or his grantor to
manipulate the land area shown
in exhibit ‘2’ to get it to
agree with the land area
contained in the site plan in
exhibit ‘3’.
The Court finds that, the site
plan in exhibit ‘2’ is not
dated, it is not signed by any
surveyor and it is not
approved. The Court holds that
exhibit 2 is not reliable and
has some element of forgery akin
to fraud about it as already
observed in respect of the
dimension of land and the
writing thereon.
The Court again finds that the
whole conveyance to the 1st
Defendant is shrouded in mystery
particularly in respect of the
area and the size of land which
was allegedly assigned to the 1st
Defendant. It is not clear
whether the 1st
Defendant has been given 4 plots
of land as stated in exhibit 4.
The same exhibit says that the 1st
Defendant was given a parcel of
land with an area of 0.230 acre
or 0.090 hectare. And if the
assignment traces its root from
the lease in the name of Kweku
Mousieyiri then the other
problem is how to reconcile the
size of land purportedly given
by the said assignment exhibit
‘4’ with the size of land
conveyed in exhibit 3 which is
stated to be 0.25 acre. A party
who lays claim to land is
enjoined to be accurate in
respect of his description of
the land which he alleges belong
to him. See the case of
Nyikplorkpo vs. Agbodotor
[1987-88] GLR 165.
It is not surprising therefore
that the Plaintiff averred that
the Land Title Certificate
issued to the 1st
Defendant was obtained by
fraud. The 1st
Defendant has admitted in his
evidence in chief that when he
went onto the land in dispute he
found a kiosk on a portion of
the land. According to him the
land shown him was two plots
with a kiosk on one but the
other plot was bushy. The
evidence of the Plaintiff is
that she constructed the kiosk
on the land. The Plaintiff says
that she also constructed a
fence wall around the land and
then placed a caretaker on the
land. PW2 George Agboada
testified to the effect that he
is the caretaker in charge of
the land and that he was put
there by the Plaintiff herein.
According to PW2, the Plaintiff
has a wooden structure on the
land, cement blocks, sand,
stones a kitchen as well as a
hencoop. PW2 tendered in
evidence exhibits F to F4 which
are pictures of the structures
which the Plaintiff has
constructed on the disputed
land. PW2 testified that he was
on the land before the 1st
Defendant brought a container
onto the land in question about
2 years ago.
Before the court the 1st
Defendant has admitted to the
presence on the land of a wooden
structure. The 1st
Defendant has also admitted that
the land has been walled but
that he was told by his alleged
grantor whose word he swallowed
hook line and sinker without
conducting any independent
investigation of his own to
ascertain the truthfulness in
the story told him by his said
grantor that the walls were
constructed by Kweku
Mousieyiri. The 1st
Defendant has again admitted
that at least the land shares
boundary with one Justice
Selassie Sawyer Williams who
even had the occasion to warn
him 1st Defendant
that the land belongs to the
Plaintiff but whose warnings the
1st Defendant ignored
because, according to him, he
has a Land Title Certificate on
the land.
The position of the law is that
a purchaser of land is duty
bound to conduct investigations
as to the veracity of the title
of his grantor and that it is
not even prudent to limit ones
investigations to a search at
the Land Registry because
several encumbrances on land may
not be shown by the land
register.
In WESTERN HARDWOOD
ENTERPRISES LTD & ANOTHER VS.
WEST AFRICAN ENTERPRISES LTD
[1998-99] SCGLR 105, the
Supreme Court per Aikins JSC
held at page 124 of the report
that:
“The law is that where a party
has actual notice that the
property is in some way
encumbered, he will be held to
have constructive notice of all
that he would have discovered.
In the instant case, since
Western Hardwood has admitted
that prior to purchasing the
property they were aware that
there were buildings on the land
and that some persons other than
agents of the Apowa stool were
in occupation, the company was
in duty bound to investigate
fully the title of their vendor.
Failing such investigation
before purchasing the property,
they must be deemed in equity to
have had notice of all that a
reasonably prudent purchaser
would have discovered. The
company cannot be said to be
innocent purchasers for value
without notice”
In expressing himself on the
law, Professor Kludze JSC held
in BROWN VS. QUARSHIGAH
[2003-2004] SCGLR 930 at 954
that:
“The principle of caveat emptor
is still a postulate of our
law. A prospective vendor or
purchaser of land cannot shift
onto the shoulders of the
existing owner the burden of
informing them of the
encumbrance, title or interest
held by him. In many
cases it will not even be enough
to conduct a search in the Deeds
Registry or the Land Title
Registry”
Continuing at page 957 Professor
Kludze again observed that:
“As I have found from the
evidence, including an existing
dwelling house and
coconut trees which the learned
trial Judge also saw on the
disputed land, there was
a clear warning to any
prospective grantee that the
land was not unencumbered. The
plaintiff had knowledge of the
evidence of prior
occupation of the land. He
chose to ignore it, or else lied
about it, in order to obtain his
lease. He took a gamble that
the defendant would sleep over
his rights, especially as the
defendant was then residing far
away at Hohoe. The
gamble failed. It is the
plaintiff’s own funeral, a
situation deliberately
contrived by himself and for
which he alone is to blame.
Procuring a lease and a
subsequent land certificate in
circumstances when the
plaintiff, on the evidence, knew
or ought to have known that the
land had been previously
granted to a prior incumbrancer
is tantamount to fraud. The
plaintiff had actual knowledge
or is fixed with constructive
knowledge that the land was
occupied by the defendant when
he purportedly acquired his
lease and consequently obtained
a land certificate. Therefore,
I agree with both the learned
trial judge and the Court of
Appeal that the land certificate
should be set aside by reason of
the fraud perpetrated by the
plaintiff. If the Chief
Registrar of Lands had been told
the truth by the plaintiff that
the land was in actual
possession by the defendant, the
land certificate would not have
been issued. Therein lies the
fraud which clearly vitiates the
issuance of the land
certificate”.
In the words of Date – Bah JSC
in the same case BROWN vs.
QUARSHIGAH (Supra) at page 966:
“Purchasers of land, who ignore
signs of possession by a party
other than their vendor on the
land, do so at their own risk
and are likely to come to
grief”.
I hold that if the 1st
Defendant had been prudent
enough and had not deliberately
ignored the numerous signs of
encumbrance on the land in
question including the wooden
structure on the land, the wall
around the land and even
warnings by neighbours, he would
have found that the land in
dispute is owned by the
Plaintiff herein.
I hold that it is very
fraudulent on the part of the 1st
Defendant to pretend not to have
seen the apparent encumbrances
on the land and then gone ahead
to acquire a Land Title
Certificate.
I hold that the registration of
the land by the Agudogos in
exhibit ‘B’ with number
AR/3196/98 serves as notice to
the 1st Defendant by
virtue of section 25(1) of the
Land Registry Act, (Act 122)
which states that:
‘25. Registration to be actual
notice
(1) The registration of an
instrument constitutes actual
notice of the instrument, and of
the fact of registration to all
persons and for all purposes, as
from the date of registration,
unless otherwise provided in an
enactment’.
I hold that on the strength of
the authorities, the Land Title
Certificate exhibit ‘5’ issued
to the 1st Defendant
herein was obtained by fraud for
the reasons stated above.
I hold also that the Land Title
Certificate exhibit 5 was issued
by mistake. First, it was
issued on the strength of
exhibit ‘4’ which has been found
to be invalid for all the
reasons stated including in
particular the fact that Philip
Mousieyiri had no capacity in
law to make the grant of the
land therein to the 1st
Defendant. Second, the
memorials contained in the Land
Title Certificate states rather
deceitfully that the certificate
is issued subject to the
reservations, exceptions,
restrictions, restrictive
covenants and conditions
contained or referred to in a
lease (a true copy of which is
annexed hereto) made between
Kweku Mousieyiri of the one part
and Lt. Col. (Rtd.) Martin
Sandongo of the other part.
The citation in the Land Title
Certificate is a complete
misrepresentation since the Land
Title Certificate does not
contain any lease between Kweku
Mousieyiri and Lt. Col. (Rtd)
Martin Sandongo. Indeed it was
never the case of the 1st
Defendant that he had a
conveyance from Kweku
Mousieyiri. What is actually
contained in the Land Title
Certificate is the impugned
Assignment between Philip
Mousieyiri and the 1st
Defendant.
In BROWN vs. QUARSHIGAH
(supra) the Supreme Court
explained the instances under
which a court may order the
cancellation of a Land
Certificate issued. At page 946
of the report, the court per Dr.
Twum JSC posed the question:
“In what circumstances may a
court order the cancellation of
a Land Certificate issued
pursuant to PNDCL 152?”
He continued and stated that:
“Section 122 of the Law provides:
(i) subject to subsection (2) of
this section the court may in
its discretion, order the
rectification of the land
registration to be cancelled or
amended where it is satisfied
that such registration has been
obtained, made or committed by
fraud or mistake.” Hence “fraud”
and “mistake” are the only
permissible grounds for the
rectification of the land
register. This means that
notwithstanding anything else
said above about the plaintiff’s
lease, it will continue to be
recorded on the land register
unless the defendant can
establish the requisite fraud.
Fraud and mistake, of course,
can materially affect the
interest of the proprietor.
Section 122(2) further provides
that:
“the register shall not be
rectified so as to affect the
title of a proprietor who has
acquired any land or interest in
land for valuable consideration
unless such proprietor had
knowledge of the omission, fraud
or mistake in consequence of
which the rectification is
sought, or had himself caused
such omission, fraud or mistake
or substantially contributed to
it by his act, neglect or
default.”
The PNDCL 152 does not define
fraud but at common law, “a
charge of fraud is such a
terrible thing to bring against
a man that it cannot be
maintained in any court unless
it is shown that he had a wicked
mind” per Lord Esther in Le
Lievre v Gould [1893] 1 Q.B.
491 at 498; in Derry v Peek
14 App Cas 337, the House of
Lords held that an absence of
honest belief is essential to
constitute fraud. 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”.
For all the reasons stated
hereinbefore, the Court holds
that Plaintiff is entitled to
succeed on her claim.
In ODAMETEY vs. CLOCUH
[1989-1990] 1 GLR 14 the
court held at page 41 that
“In clear cases of fraud, the
registered proprietor implicated
in the fraud cannot take
advantage of the statute because
fraud vitiates all
transactions”. In AMUZU
VS. OKLIKAH [1997-99]
SCGLR 141 the court pointed
out per Charles Hayfron-
Benjamin JSC. at page 169 that
‘A court cannot ignore
evidence of unconscionable
conduct on the part of a
subsequent purchaser and decree
title in such purchaser even
though he has notice – actual,
constructive or imputed- of
third party rights and interest
in the property he seeks to
acquire’.
The Land Title Certificate
GA25354, Volume 53, Folio 1240
issued to the 1st
Defendant by the 2nd
Defendant is hereby cancelled
and set aside for the reasons
stated above.
It has been held in YORKWA VS.
DUAH [1993-1994] 1 GLR 217
that:
“It was a settled principle that
a person in possession and
occupation was entitled to the
protection of the law against
the whole world except the true
owner or someone who could prove
a better title”.
The
Court will declare title in the
Plaintiff of ‘all that parcel
of land situate and lying at
Adjirigano on the Northern
portion of the Accra Tema
Motorway and bounded on the
North-East by Plot No. 59 and
measuring 100 feet more or less
along the North-Eastern
boundary; and bounded on the
South – East by Plot No. 58 and
measuring 120 feet more or less
along the South – Eastern
boundary; and bounded on the
South –West by a proposed road
and the property of Rev and Mrs.
Justice Sawyer Williams and
measuring 120 feet more or less
along the North – Western
boundary and covering
approximately a total area of
0.20 acres more or less and
particularly delineated on a
site plan’.
The Plaintiff shall also recover
possession of the said land.
Consequently, the Defendants and
their agents, servants, workmen,
assigns and all those claiming
through them are perpetually
restrained from interfering with
the Plaintiff’s ownership of the
land in question.
I will assess damages at
GH¢15,000 in favour of the
Plaintiff against the 1st
Defendant.
Cost of GH₵5000 to the Plaintiff
against the 1st
Defendant.
[SIGNED]
SAMUEL K. A. ASIEDU
JUSTICE OF THE HIGH COURT |
