Ephraim O. Commodore (suing per his lawful attorney Kwaku Amankwatia) v Mrs Agnes Abla Akoto and Rose Akler Baako

1.0 INTRODUCTION:

The case of the Plaintiff as captured by his statement of claim is that he is a Ghanaian citizen resident in London, in the United Kingdom and sues through his lawful attorney, Kwaku Amankwatia of Accra. The 1st Defendant is a retired Public Servant and a grantor of the Plaintiff in respect of land described as Plot No. 4; Melon Close, Teshie Nungua Housing Estate, Accra.

1.1 The 2nd defendant is a citizen of Ghana and claims ownership of the said property described as plot No. 4, Melon close, Teshie Nungua Housing Estate, Accra. The Plaintiff says that the 1st Defendant presented to him that she had acquired the said land in 1978 and which acquisition is evidenced by a conveyance. The Plaintiff says that in the year 1997, the 1st Defendant offered to dispose of her land described herein above to him for an equivalent of three Thousand and Six Hundred Pounds Sterling (£3,600) and which proposition was duly accepted by the Plaintiff.

1.2 The Plaintiff says that the 1st Defendant confided in him that he needed money urgently to solve some personal problems and that she needed to sell off the above described land to enable her raise the amount of money needed; and offered the land to the Plaintiff to buy. The Plaintiff says that the 1st Defendant sent copies of the documents covering the land to him by post and also deposited the original document with the Plaintiff’s wife.

1.3 The Plaintiff also says that the 1st Defendant wrote series of letters to him to convince him of the authenticity of her title to the land and her preference to transfer title to him. The Plaintiff further states that he transferred various sums of money to the 1st Defendant at various times in fulfilment of the consideration required for the transfer of title in the land to him.

1.4 The Plaintiff says that upon payment of substantial part of the consideration to the 1st Defendant, he requested for the transfer of the title in the land to him, wherefore, the 1st Defendant revealed to the Plaintiff that the land is part of a larger track of land vested in the State Housing Company of Ghana.

1.5 He went on to say that the 1st Defendant then requested of him to pay for an amount in demand by the State Housing Company as penalty for a claim of trespass by the 1st Defendant. The Plaintiff says further that the 1st Defendant assured him that the State Housing Company would transfer the title in the land to her, the 1st Defendant who would onwardly transfer title to him.

1.6 The plaintiff says that he paid the total of the penalty requested by the State Housing Company through the 1st Defendant, pursuant to which the 1st Defendant executed a declaration confirming the transfer of her interest in the land to him, and which deed is dated 24th August, 1998.

1.7 The plaintiff says that he caused a building plan to be prepared for the construction of his building in 1997. And that he started the construction of his building on this disputed land in 1998 and completed same in the year 2001.

1.8 The Plaintiff says that it was the 1st Defendant who supervised his building as he sent remittances to her for the purchase of building materials for the project. The Plaintiff says that all remittances in respect of the construction and material expenses were acknowledged by the 1st Defendant through letters and receipts for purchases.

1.9 The Plaintiff says that in the year 2006, he sent his sister, Ms. Alice Aryeetey to inspect his building to ascertain the state of development. The Plaintiff went on to say that at the site his sister met the 2nd Defendant who introduced herself as the caretaker for the 1st Defendant, wherefore his sister introduced herself as the agent of the Plaintiff who owns the house in dispute.

2.0 The Plaintiff says that he sent his sister again in early 2011 to inspect his property where she met different people who claimed to be caretakers of the house. The Plaintiff says that upon information of the state of affairs from his sister, she caused a search to be conducted at the State Housing Company, wherefore a report indicated a purported transfer by the 1st Defendant to the 2nd Defendant as per a search report dated the 27th day of April, 2011.

2.1 The Plaintiff says that upon realization of the purported transfer of the interest in the disputed property, he called the 1st Defendant to demand immediate surrender of the keys to his sister and a reversal of the purported transfer into his name. The Plaintiff says that the 1st Defendant assured him of her willingness to hand over the property and transfer the interest in the property to him upon his return to Ghana.

2.2 The Plaintiff says that upon his return to Ghana, he realized that the property in dispute had been rented out to a third party known as Centre for Popular Education and Human Rights, Ghana. The Plaintiff says that, he took possession of the property and reported the matter to the police and which complaint has resulted in a criminal trial which is currently ongoing. The Plaintiff says that the attempt by the 1st Defendant to transfer the interest in the disputed property to the 2nd Defendant is fraudulent and unlawful.

2.3 PARTICULARS OF FRAUD:

a) The 1st Defendant knew or ought to have known that the Plaintiff is the beneficial owner of the disputed property, and that the disputed property did not belong to her, for her to have attempted to dispose of it to the 2nd Defendant.

b) The 2nd Defendant knew or ought to have known that the disputed property belonged to the Plaintiff and not that of the 1st Defendant to have purported to have acquired same from the 1st Defendant.

c) The 2nd Defendant concealed any interest she had in the disputed property from the Plaintiff’s sister during the inspection in the year, 2006, at the instance of the Plaintiff.

d) The 2nd Defendant knew or ought to have known that the disputed property belonged to the Plaintiff and that the tenancy entered into with the Centre for Popular Education and Human Rights, Ghana was without the consent of the Plaintiff.

2.4 The Plaintiff says that the 1st Defendant, upon admission of his right to ownership of the disputed property proposed to make a grant of another parcel of land and construct a building of similar architecture to him but which proposal was rejected outright. The Plaintiff says that the Defendants shall persist in their unlawful act unless restrained by this court.

2.5 Based on these facts the Plaintiff claims against the Defendants as follows:

a. A declaration that the Plaintiff had acquired the disputed property upon the payment of consideration and the construction of the building thereon in 1998.

b. A declaration that the 2nd Defendant knew or ought to have known of the subsisting interest of the Plaintiff before the purported transfer of the interest in the property by the 1st Defendant to her, the 2nd Defendant.

c. A declaration that the purported transfer in interest in the property by the 1st Defendant to the 2nd Defendant is vitiated with fraud.

d. A declaration of title in the disputed property to the Plaintiff.

e. Recovery of possession of the disputed property.

f. Perpetual injunction to restrain the Defendants, their agents, assigns and whoever claims any interest through the Defendants from asserting any right(s) in the disputed property.

g. Order for the ejection of the Defendants and any person(s) in possession or living in the disputed property through any of the Defendants.

h. Order for recovery of rent(s) paid to any of the Defendants by any tenants who have occupied the disputed property from the time of completion of construction to date.

i. Costs.

2.6 In contesting the Plaintiff’s claim the Defendants caused their respective lawyers to enter an appearance and also filed a defence on their behalf. Per her statement of defence, the 2nd Defendant counterclaimed against the Plaintiff as follows:

i. A declaration of title to No. 4 Melon Close, Teshie-Nungua Estate in favour of the 2nd Defendant.

ii. Recovery of possession from the Plaintiff.

iii. Damages for Trespass.

iv. Perpetual injunction restraining the Plaintiff, his assigns, agents, and whoever claims any interest in the property on his behalf, from having any dealings concerning the property.

v. Cost.

2.7 At the Application for Direction stage, the following issues were set down for determination:

1. Whether or not the 1st Defendant sold the property in dispute to the Plaintiff or purported to sell it.

2. Whether or not the 2nd Defendant is an innocent purchaser for value without notice of the property in dispute.

2.8 In prosecuting his claim the Plaintiff testified that in the year 1997 the 1st Defendant contacted him that she had acquired the disputed land in 1978 and which acquisition is evidenced by a conveyance. She subsequently sent him a copy of the conveyance. See Exhibit B, a copy of the Conveyance.

2.9 He asked for the price of the land and the 1st Defendant indicated to him an amount in the Ghanaian currency which at that time was equivalent to Three Thousand Five Hundred pounds (£3,500). The Plaintiff sent the 1st Defendant

£3,500 and in return the 1st Defendant sent him a hand written receipt which was signed by her and dated 1st April, 1997. See Exhibit C, a copy of the said Receipt.

3.1 The Plaintiff subsequently asked the 1st Defendant to send him three different building plans which she did. Based on these drawings he chose a design which was used to build the disputed house.

It is the evidence of the Plaintiff that the 1st Defendant wrote series of letters to him to convince him of the authenticity of her title to the land and her willingness to transfer title to him. See Exhibit D series, copies of the letters that were sent to the Plaintiff by the 1st Defendant.

3.2 And that after paying for the purchase price of the land, he requested for the transfer of the title in the land into his name wherefore the 1st Defendant revealed to him that the land is part of a larger tract of land vested in the State Housing Company of Ghana.

3.3 The 1st Defendant requested him to pay for an amount in demand by the State Housing Corporation as penalty for a claimed trespass by the 1st Defendant. To back her claim, the 1st Defendant sent him a copy of a newspaper publication that showed a list of trespassers which included the 1st Defendant on the State Housing Corporation’s land. See Exhibit E, a copy of the said publication.

3.4 According to the Plaintiff, the 1st Defendant assured him that the State Housing Corporation would transfer the title in the land to her and thereafter she would directly transfer her interest to him immediately the penalty was paid.

3.5 The Plaintiff therefore remitted some money to the 1st Defendant for her to pay for the penalty pursuant to which the 1st Defendant executed a declaration confirming the transfer of her interest in the land to him and which is dated 24th day of August, 1998. The 1st Defendant also sent him a copy of the State Housing Corporation penalty payment receipts, as a confirmation. See Exhibits F, a copy of the said declaration and G, a copy of the Receipt the 1st Defendant sent to him from the State Housing Corporation to confirm the payment of the penalty.

3.6 And that the 1st Defendant in a letter dated 6th April, 1999, confirmed the payment of the penalty and even offered to reimburse the money to him in the same correspondence. The 1st Defendant intimated that the documents covering the land was not ready but assured him that whenever they were ready, she will send them to him. See Exhibit H, a copy of the said Letter.

3.7 The Plaintiff continued that the construction of the disputed building commenced in 1998 and completed same in 2001. It is also the evidence of the Plaintiff that it was the 1st Defendant who supervised the building as she sent him estimates of building materials and in return, he sent remittances to her sometimes through her husband’s bank accounts. She also sometimes send to him receipts and invoices of purchased building materials. See Exhibit J series, copies estimates and receipts and evidence of remittances the 1st Defendant received from him.

3.8 He continued that the 1st Defendant also sent him photographs of the building to indicate to him the stage the development had gotten to. See Exhibit K, copies of the photographs sent to him by the 1st Defendant.

3.9 That all remittances in respect of the construction and material expenses were acknowledged by the 1st Defendant through letters and receipts of purchase. And that the last estimates received from the 1st Defendant and the remittances sent to her was for the roofing and decoration of the house was in the year 2001, the same year the purported sale to the 2nd Defendant was done.

4.0 Plaintiff states that there came a time that he requested for the title documents to the land but the 1st Defendant kept tossing him. He became a bit suspicious so therefore he sent a copy of the deed of transfer to his sister in Ghana to go to the State Housing Corporation to transfer the ownership of the property into his name.

4.1 However to his amazement, his sister was informed by the officers of the State Housing Corporation that, the 1st Defendant had already visited the office to transfer ownership of the disputed property to the 2nd Defendant.

4.2 According to the Plaintiff he became distraught when he heard this news but he could not come to Ghana because he had not gotten all his residential permit at the time. The 1st Defendant thus took advantage of the situation and further threatened to report him to the Home Office, so that he would be deported back to Ghana should he intend to return. She also started3 to ignore his telephone calls.

4.3 Fortunately for him, he got his British Residence in the year 2005 and came to Ghana for one of his sister’s funeral rites but the 1st Defendant failed to attend. After the funeral, he tried to locate the whereabouts of the 1st Defendant but was unsuccessful. However, due to the exigencies of time he returned to the United Kingdom.

4.4 He came back to Ghana in 2009 when he lost his mother. He took some time after the funeral to search for the 1st Defendant and the property. During his searches, he came into contact with the daughter of Mr. Akoto, husband to the 1st Defendant and her husband living in the disputed house, so he introduced himself to them and told them that the house belongs to him. And that the information he had was that the residence of the 1st Defendant was not far from his house, but they refused to point out the 1st Defendant’s house to him.

4.5 Subsequently, on his return to Ghana, he realized that the property had been rented out to a third party known as Centre for Popular Education and Human Rights. Consequently, he took possession of the property and reported the 1st Defendant, her husband and his former wife to the Nungua Police Station for their arrest. They all gave contradictory statements to the police. See Exhibit J, J1 and J2 respectively.

4.6 In her statement to the police, the 1st Defendant admitted responsibility for the sale of the property, so she was then charged and sent to court.

4.7 The 1st Defendant was charged with fraudulent breach of trust; contrary to section 128 of the Criminal and other Offences Act 1960, (Act 29) but she was acquitted and discharged on the said count on the basis that, she sold the property to cater for his children. See Exhibit K and K1 are copies of the record of proceedings and judgment respectively of the criminal trial.

4.8 The Plaintiff insisted that he never renege on his duties to cater for his wife and children and that he made special financial provisions for them and also resourced his wife in various ways for her to be able to provide for the children. For instance, in 1998 he acquired on her behalf the following:

1. One industrial over-lock sewing machine.

2. One domestic sewing machine

3. One large deep freezer

4. Treasury Bills (with only the interest to be used for the children).

5. Yearly supply full suitcase of clothing for Lina and the children.

6. Above all that the children especially Elfrida (the first daughter) occasionally calls me and I direct her to my sister. Alice Argyeetey and a family friend called Bernice Aryeequaye for money.

4.9 The Plaintiff testified that the transfer of the disputed property by the 1st Defendant to the 2nd Defendant was fraudulently done as judging from the surrounding circumstances, the 2nd Defendant ought to have known that the seller had no title to pass especially as the 1st Defendant now claims that the property was sold by her estranged wife.

And that the 1st Defendant upon admission of his right to ownership of the disputed property at the police station proposed to make a grant of another parcel of land and to construct building of similar architecture for him but he rejected that.

5.0 In contesting the Plaintiff’s claim, the 1st Defendant testified that she has never met the 2nd Defendant in person and that the 2nd Defendant acquired the property in dispute somewhere in the year 2001 through her representative by name Mr. Francis Sowah.

5.1 It is her evidence that she know the Plaintiff as a former co-worker at Quality control Company Limited of Ghana COCOBOD (formerly Produce Inspection Division of Ghana COCOBOD). And that the Plaintiff married her niece by name Lina Afua Darku and had two daughters. That prior to the Plaintiff’s resignation and departure to the United Kingdom, he had the land in dispute at Teshie and because of his friendship with the Plaintiff, she decided to sell her land to him. She informed the Plaintiff of her intention to sell the said land to him and he expressed interest in buying same. The Plaintiff paid for the land and decided to put up a house.

5.2 And that at the time she was in active service and so the Plaintiff’s wife played active role in the construction of the building. She provided water and food for the labourers and supervised the construction of the house.

5.3 She continued that she accounted for every money that the Plaintiff remitted to her at every stage of the construction by writing and sending pictures of the building to him up to the roofing level when there was a break in communication between her and the Plaintiff. That for a long time she was not hearing from the Plaintiff for which reason she contacted his wife who also confirmed that she was also not hearing from him.

5.4 It is the evidence of the 1st Defendant that she bought the land in dispute from the Teshie-Nungua chiefs through their surveyor by name George Koppoe. See Exhibit AG1, a copy of the receipt. And that at the time of purchase, she did not know that the land belonged to the State Housing Company Limited (SHC).

5.5 She testified that during the construction of the house, state Housing Corporation summoned her to their Penalty Committee on encroachment that she had trespassed on their land and so she should regularize her occupation on the land and pay a penalty.

5.6 At the said committee it was agreed that she paid ¢465,000.00 (now GhS46.5) as Release charge; ¢1,575,000.00 (now GhS157.5) as Development Charge and processing fee of ¢100,000.00 (¢10). A photocopy of the document issued to her when she appeared before the Penalty Committee of State Housing Corporation was tendered as Exhibit AG2.

5.7 She therefore informed the Plaintiff about the issue with State Housing Corporation and the penalty involved but he failed to remit money to her and personally she paid the full penalty to atone tenancy with the State Housing

Corporation. See copies of the receipts of payment to the State Housing Corporation as penalty tendered as Exhibit AG3 series.

5.8 After the payment of the above charges, State Housing Corporation gave her a sixty-year lease for the land in dispute. Exhibit AG4 is a Regularization of documents form State Housing Corporation and Exhibit AG5 is a Certificate of Right of Entry.

5.9 The Plaintiff’s wife came for the documents covering the disputed property from her and sold it. The documents evidencing the sale to the 2nd Defendant were executed in the year 2001 by her after the final and full instalments had been paid. The Plaintiff’s wife sold it because she complained at the time that the Plaintiff had abandoned them and she needed money to fend for herself and the children.

6.0 And that she remembers at the time of sale, the property in dispute was still in her name and she was the one paying ground rend to State Housing Corporation. See copies of the receipts of payment of ground rent to State Housing Corporation tendered as Exhibit AG6.

6.1 The Plaintiff became aware of the sale from the year 2002 through the wife and her. That since the Plaintiff became aware of the sale of the property in dispute, he has not challenged the sale. The Plaintiff had been in Ghana at least on three different occasions before he instituted this suit.

6.2 It is her evidence that the property in dispute at the time it was sold to the 2nd Defendant was at the roofing level, as shown in the picture Exhibit 5A attached to the 2nd Defendant’s witness statement and that the Plaintiff knew of the sale and was aware at the time that the building was uncompleted and the uncompleted building could not have had keys to it.

6.3 That the first time the Plaintiff complained of the sale was in 2015. In December, 2015, the Plaintiff made a criminal complaint against her at the Teshie-Nungua Police Station. She was then charged with the offence of fraudulent breach of trust contrary to section 128 of Act 29. And that all attempt to have the issue settled proved futile.

6.4 The Circuit court on 30th January, 2018 acquitted and discharged her on the said offence. See a copy of the judgment of the court tendered as Exhibit AG7.

6.5 The court in the said judgment found as a matter of fact that she did not dishonestly appropriate the property in dispute. In other words, there was no intent of fraud on her part when the property was sold to the 2nd Defendant. The 2nd Defendant has enjoyed uninterrupted peaceful possession of the property in dispute for over 15 years for which reason the 1st Defendant prayed the court to dismiss the suit.

6.6 Per her witness statement the 2nd Defendant testified as follows:

“I am Joseph Tawiah Sam, No. 54 Teak Street, Dansoman, Accra holding Rose Aklerh Baako’s attorney to represent her in this suit.

1. I am a professional carpenter, and hold 2nd Defendant’s Attorney in the matter, and what is stated here is within my knowledge as her Attorney (Exhibit JTS 1).

2. The Plaintiff filed a writ and statement of claim against the Defendants above on 30the June, 2016, and amended it on 2nd June, 2017.

3. The 2nd Defendant filed her statement of defence and counterclaim on 16th January, 2017.

4. That after the directions had been taken on the issues, we filed our witness statement on 22nd February, 2018, in addition to another statement of a witness, Isaac Kweku Edoh, filed on 25th April, 2018.

5. On 14th November, 2023, my earlier witness statement was withdrawn on the account of it not conforming to what is expected under CI. 87; hence this new one.

6. I have read the reply to the defence and defence to the counterclaim filed by the Plaintiff on 22nd March, 2017, and the averments are contrary to what we know.

7. The 2nd Defendant expressed interest in the land as far back as 2001, when she learnt from a relation in Ghana, who knew the 1st Defendant that an uncompleted building was being offered for sale by the owner of the property (JTS 2 and 2a).

8. She contacted the 1st Defendant on telephone, who told her that the land was leasehold of the State Housing Corporation, and that if she was keen on having it, then necessary procedures would be followed for her to own the property.

9. The 2nd Defendant thereafter paid off the 1st Defendant the full cost of the property, amounting to ¢85,000,000.00, through a Ghanaian family friend, who received the monies for payment of which part of the payment was receipted by the 1st Defendant to complete the purchase of the building. (Exhibit JTS 3).

10. The 1st Defendant sought consent of the State Housing Corporation to assign her interest in the land to the 2nd Defendant, and the State Housing Corporation duly gave their consent on 24th July, 2001. (Exhibit JTS 4).

11. A Deed of Assignment was duly prepared by which the 1st Defendant assigned the unexpired term of the lease to the 2nd Defendant on 24th July, 2001. (Exhibit JTS5).

12. On taking possession of the land, the 2nd Defendant settled outstanding ground rent with the State Housing Corporation for 2002 to 2015, and also paid for amendments to their records, on account of the assignment. (Exhibit JTS 6 series).

13. On purchasing the uncompleted building, she spent considerable money to perfect it and gave a witness in this suit, Isaac Kweku Edoh, responsibility to finish the construction of the building and on completion, rented it to Centre for Popular Education and Human Rights, Ghana (CEPEHRG). (Exhibit JTS7)

14. For the avoidance of any fraudulent transaction by Isaac Kwaeku Edoh, the tenants sought verification of ownership from the State Housing Corporation, and the latter certified ownership in favour of the 2nd Defendant, (Exhibit JTS 8).

15. It is remarkable to add that the 2nd Defendant has never set eyes on the 1st Defendant, so that they do not know themselves, save through telephone calls. And further, she has never known or heard of any other person, particularly, the Plaintiff, laying adverse claim to the property, the 2nd Defendant therefore refutes the allegation that she had acquired the property by fraudulent means.

16. The 2nd Defendant avers that she purchased the building, completely innocent of any prior relationship between the Plaintiff and the 1st Defendant.

17. She has satisfied the legal procedures for ownership of the property at No. 4 Melon Close, Teshie-Nungua Estate and hereby seeks the following relief from this court.

i. A declaration of title to No. 4 Melon Close, Teshie-Nungua Estate in favour of the 2nd Defendant.

ii. Recovery of possession from the Plaintiff.

iii. Perpetual injunction restraining the Plaintiff, his assigns, agents, and whoever claims any interest in the property on his behalf, from having any dealings concerning the property.

v. cost.”

6.7 At the application for directions stage, a number of issues were set down for determination. I will however take same under one broad issue. Thus – whether or not the 1st Defendant fraudulently sold the subject property in dispute to the 2nd Defendant.

6.8 Paragraph 29 of the Amended Statement of Claim reads:

“29. The Plaintiff says that the attempt by the 1st Defendant to transfer the interest in the disputed property to the 2nd Defendant is fraudulent and unlawful.

Particulars of fraud:

a. The 1st Defendant knew or ought to have known that the Plaintiff is the beneficial owner of the disputed property, and that the disputed property did not belong to her, for her to have attempted to dispose of it to the 2nd Defendant.

b. The 2nd Defendant knew or ought to have known that the disputed property belonged to the Plaintiff and not that of the 1st Defendant to have purported to have acquired same from the 1st Defendant.

c. The 2nd Defendant concealed any interest she had in the disputed property from the Plaintiff’s sister during the inspection in the year, 2006, at the instance of the Plaintiff.

d. The 2nd Defendant knew or ought to have known that the disputed property belonged to the Plaintiff and that the tenancy entered into with the Centre for Popular Education and Human Rights, Ghana was without the consent of the Plaintiff.”

6.9 The locus classicus in the position of fraud is the case of DZOTEPE V. HAHORMENE III [1987-88] 2 GLR 681 where the court made reference to Kerr on Fraud and Mistake, Ampah JA delivered himself as follows;

i. “I am of the opinion that they were entitled to do so, for fraud, whenever and wherever found, would vitiate all proceedings even the most solemn proceedings of a court of justice.”

7.0 The court in the case of OPANIN KWASI ASAMOAH V. KWADWO APPEAH AND NANA OWUSU SENYA Civil Appeal No. 8/2000 delivered on 17th December, 2003 in discussing the effect of fraud made reference to the case of Okofoh Estates and said thus:

“Indeed, fraud vitiates everything. A relevant statement on this that will be found in OKOFOH ESTATES LIMITED V. MODERN SIGNS LIMITED [1996-97] SCGLR 233 at 253 reads:

“An allegation of fraud goes to the root of every transaction. A judgment obtained by fraud passes no right under it and so does a forged document or a document obtained by fraud passes no right.”

“The lease that Asare obtained by fraudulently presenting himself as the owner of the house created no right nor passed any title to Asare. The judgment obtained with such lease similarly created no right nor passed any title.”

7.1 Also, in the case of HARIS V. HARIS, 438 PA 473 [PA. 1968] the Supreme Court of Pennsylvania had this to say about fraud;

“The court below, in sustaining appellee’s preliminary objections, concluded that a judgment based on a forged instrument is merely voidable and consequently will not hamper the passage of a good title to one considered a bona fide purchaser for value.

We disagree. The cases are legion at least with respect to negotiable instruments that a forged, fraudulent and spurious instrument is not bind on any person and is wholly inoperative to transfer any title or right to property whether the holder is an innocent or guilty purchaser.”

7.2 In the case of FENUKU V. JOHN TEYE [2001-2002] SCGLR 985 the Supreme Court in holding 5 of the headnotes held that:

“The law regarding proof of forgery or any allegation of criminal act in civil trial was governed by section 13(1) of the Evidence Decree, 1975 (NRCD 323) which provided that the burden of persuasion required proof beyond reasonable doubt….”

7.3 To succeed therefore the law enjoins the Plaintiff in this suit to prove his claim of fraud beyond reasonable doubt. In the case of the REPUBLIC V. THE HIGH COURT JUDGE [2010] 1GMLR 118, the Supreme Court stated that:

“Fraud is a serious sin against Administration of Justice and vitiates everything… the proponent must not only distinctly specify the alleged fraud, but also strictly prove same because it is not permissible to infer fraud from general situation or fact.”

7.4 Paragraphs 6 to 8 of the witness statement of the 1st Defendant reads:

“6. Prior to the Plaintiff’s resignation and departure to the United kingdom, I had the land in dispute at Teshie and because of my friendship with the Plaintiff, I decided to sell my land to him.

7. I informed the Plaintiff of my intention to sell the said land to him and he expressed interest in buying the land.

8. The Plaintiff paid for the land.”

7.5 Under the Land Act 2020 (Act 1036) payment for land involves a formal process to ensure legal validity and protect against disputes. Thus the payment creates rights between the buyer and the seller.

7.6 Under the principle established in AMUZU V. OKLIKAH [1997-98] GLR 89 if a purchaser pays the full price and is in possession, he acquires an equitable interest that can prevail over even a subsequent registered purchaser who had notice of the first sale.

7.7 The 1st Defendant further testified that through her the Plaintiff put up a house to the roofing level. This clearly depicts that aside paying for the land, the Plaintiff further exercised his possessory rights over the subject land. It is my candid view that at this point the subject land became the bona fide property of the Plaintiff.

7.8 This clearly shows that the 1st Defendant and Plaintiff’s wife had no interest in the subject land for them to have the requisite capacity to deal with the subject land. In MUSAH V. TALI [1991] 2 GLR 47, the court held that once land is vested in a prior owner, the grantor has no title left to convey to a second party. See also BRUCE V. QUAYNOR [1959] GLR 292.

7.9 Paragraphs 17 and 19 of the 1st Defendant’s witness statement read:

“17. The Plaintiff’s wife came for the documents covering the disputed land from me and sold it. The documents evidencing the sale to the 2nd Defendant were executed in the year 2001 by me after the final and full installments had been paid.”

19. I remember at the time of the sale, the property in dispute was still in my name and I was the one paying ground rent to State Housing Corporation Limited. Attached are copies of the receipts of payment of ground rent to State Housing Corporation Limited, marked Exhibit AG6 and Exhibit AG6a. So I executed and signed the indenture and acknowledged receipts of payment.”

8.0 Paragraph 18 of the same witness statement further reads:

“18. The Plaintiff’s wife sold it because she complained at the time that the Plaintiff had abandoned them and she needed money to fend for herself and the children.”

8.1 It is salient to note that at the time the Plaintiff’s wife and the 1st Defendant purportedly sold the property to the 2nd Defendant both had no interest in the subject matter property for them to transfer the property to the 2nd Defendant.

8.2 If I may ask, in what capacity did the 1st Defendant execute the land documents in favour of the 2nd Defendant since there is evidence before me that she had no interest in the subject land for her to be clothed with the requisite capacity to execute the documents in issue.

8.3 According to the 1st Defendant the Plaintiff’s wife sold the subject property to raise funds for her upkeep and that of the children. In contrast the Plaintiff denied same and insisted that he maintained the family through the period in issue. Unfortunately, the Plaintiff’s wife did not testify in this case.

8.4 It is my considered view that assuming the story that the Plaintiff failed to maintain the wife and children at all, I think the proper forum to seek for redress was the court and not to sell a property belonging to the husband without his consent and authority.

8.5 For instance, she could have applied to the court under the Children Act to seek for redress for maintenance orders to be made but she failed to do so. A review of the evidence on record depicts that eventhough the Plaintiff’s wife and the 1st Defendant had no interest in the subject property they fraudulently sold same to the 2nd Defendant.

8.6 In the circumstance I accordingly set aside the sale of the subject property to the 2nd Defendant since same was a nullity abini tio. Judgment is accordingly entered for the Plaintiff for all his reliefs. Cost of GhS15,000.00 in favour of the Plaintiff and against the Defendants. The 2nd

Defendant’s counterclaim is accordingly dismissed.