KOFI AGGREY & ANOR. VRS TRACOAF ESTATES LIMITED & ANOR. (LD/0479/2017) [2024] GHAHC 140 (17 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, GHANA (LAND COURT 7) HELD IN ACCRA ON THE 17TH OF DAY MAY, 2024 BEFORE HIS LORDSHIP ALEXANDER OSEI TUTU (J.) SUIT NO. LD/0479/2017 1. KOFI AGGREY 2. CELLINCIA GYAMFI AMANKWAH (MRS.) ALL OF 11EDMANDS ROAD AMANKWAH APT 307, FRAMINGHAM MASSACHUSETTS, USA (SUING PER HIS LAWUFUL ATTORNEY ESTHER ADU POKU) VRS 1. TRACOAF ESTATES LIMITED 205/206 SENAM HOUSE, SOUTH LA, GENERAL HOSPITAL - ACCRA 2. EVELYN AKOSUA NYAMEKYE KWARTENG PARCEL NO. 7451 BLOCK 7, SECTION 100, OKPOI GONNO, SPINTEX ROAD ====================================================== J U D G M E N T In an earlier Writ of Summons filed on the 26th April, 2017, the Plaintiffs obtained Default Judgment against the 1st Defendant on the 8th February, 2018 and during the execution process, the 2nd Defendant was seen in occupation of the land. She successfully applied to set aside the execution and the Judgment entered by the Court on the 31st October, 2019, whereupon she was joined to the suit as the 2nd Defendant In the final Amended Writ of Summons and Statement of Claim filed on the 18th August, 2020, the Plaintiffs claimed against the Defendants the following reliefs: 1 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 “a. An order of the Court for the cancellation of the Land Title Certificate No. GA 57486 Volume 47 Folio 123 dated 18th January 2019 issued in the name of the 2nd Defendant on grounds of fraud, mistake and misrepresentation. b. An Order of the Court for the 1st Defendant to complete execution of the indentures submitted to the Plaintiffs. c. An Order of the Court directed at the 1st Defendant to furnish and execute all documents as required by Ghana Home Loans to secure the perfection of the Plaintiff’s interest in the property. d. An Order of the Court compelling the Defendants to give possession of the property to the Plaintiffs. e. An Order of interlocutory injunction to restrain the Defendant, its agents, assigns or privies from disposing off the property being the subject matter in dispute pending the determination of the instant suit. f. Costs of the action including lawyers’ fees. g. Any other remedy that the Honourable Court may deem fit. The Case of the Plaintiffs The Plaintiffs, who sued through an attorney are Ghanaians currently domiciled in the USA. The 1st Defendant is a Limited Liability Company registered under the laws of the Republic of Ghana engaged in real estate business among others, while the 2nd Defendant was unknown to the Plaintiff but for the suit. According to the Plaintiffs, on the 10th January 2013, the 1st Defendant made an offer of a four-bedroom semi-detached house at its Spintex Development to them for Eighty Thousand United States Dollars (US$80,000). Per the terms of the sale, the Plaintiffs were to make a down payment of Twenty-Nine Thousand Eight Hundred Dollars (US$ 28,900) to the 1st Defendant, which said sum has been duly paid and receipted. It was agreed between the Plaintiffs and the 1st Defendant that the remaining sum of US$50,200 would be financed by Home Finance Company 2 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 Limited by way of mortgage financing in terms of a facility dated 15th July 2014. The amount of US$2,467 was paid by the Plaintiffs to HFC as transaction charges. The 1st Defendant upon receipt of the down payment was supposed to hand over the property to them on or before 30th June 2015 but has up to date failed to do so, notwithstanding the fact that it took the Plaintiff’s attorney to the property on several occasions. After the deadline to hand over the property in September 2015, the Plaintiff engaged the HFC Realty Limited to value the property. The Plaintiffs say that upon the 1st Defendant’s receipt of the down payment of US$29, 800 as a condition precedent to secure the release of the mortgage sum of the US$50,200, the 1st Defendant was required to submit to Ghana Home Loans or the Plaintiffs four (4) executed indentures for the conveyance of the property with site plans in each of them and the oath of proof sworn as well as six (6) additional original site plans. The Plaintiffs say that the 1st Defendant through its Managing Director recently provided them with four (4) unexecuted indentures and contend that without an order of the Court, the 1st Defendant will not complete the execution of the indenture and submit same to the Plaintiffs or GHL to secure the perfection of their title in the property. It is the view of the Plaintiffs that the 1st Defendant having received the down payment aforesaid has no legal justification to refuse to submit to them or the GHL the necessary documents or securing the perfection of their title in the property. The Plaintiffs expressed surprise that when they obtained Judgment against the 1st Defendant after failing to contest the suit, the 2nd Defendant was found in occupation of the property in their bid to enforce the execution of the Judgment. The Plaintiffs say that the 2nd Defendant initially found their claim to the property tenable, so she signed an undertaking and requested for time to vacate the property, but has surprisingly turn around to make a claim of having purchased the property from the 1st Defendant. The Plaintiffs express serious doubt that the 2nd Defendant has bought any property from the 1st Defendant and assert that even if she has, her property is different from the subject matter property, because they have been exercising acts of possession over the property since 2015 and that the 2nd Defendant moved into the property during the pendency of the suit only to defeat their claim. The Plaintiffs invite the Court to dismiss the counterclaim of 3 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 the 2nd Defendant by cancelling its certificate dated 18th January 2018 on grounds of fraud, mistake and misrepresentation. THE CASE OF THE DEFENDANTS The matter was a two-horse race between the Plaintiffs on one part and the 2nd Defendant on the other side. It is worth stating at this point that the 1st Defendant failed to file a Defence to the Plaintiffs’ action, so Interlocutory Judgment in default of defence was entered against it. In the defence mounted by the 2nd Defendant, she counterclaimed against the Plaintiffs thus: “a. A Declaration of title to all that piece or parcel of land covering an approximate area of 0.09 acre more or less being parcel No. 7451 Block 7 Section 100 situate at Okpoi Gonno, Spintex Road which is described as Plot No. 8, Samuel Court, Tracoaf Estate, Spintex Road, Accra in an indenture dated 20th June 2010. b. Perpetual Injunction restraining the Plaintiffs and the 1st Defendant their privies, assigns, agents and all other persons claiming through them from interfering with the 2nd Defendant’s quiet enjoyment of the property. c. A Declaration that the 1st Defendant did not have any interest in the property to purportedly transfer same to the Plaintiffs as at 2015. d. An order annulling all indentures, documents executed between the 1st Defendant and the Plaintiff as regards the 2nd Defendant’s property. e. Costs inclusive of Solicitors fees. f. Any other relief (s) this Honourable Court may deem fit. The 2nd Defendant challenged the capacity of the Plaintiffs’ Attorney (Esther Adu Poku) to maintain the instant action. It is the case of the 2nd Defendant that the Plaintiff has no contract with the 1st Defendant for the acquisition of the property, 4 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 i.e. Plot No. 8, Samuel Court, Tracoaf Estate, Spintex Road, Accra. The said property she contracted with the 1st Defendant is not the property endorsed by the Plaintiffs on their Writ of Summons and Statement of Claim. The 2nd Defendant further denied the capacity of the 1st Defendant to transfer her property to the Plaintiffs in 2015, having divested its interest in the property in 2010 to the 2nd Defendant. Her case is that she agreed with the 1st Defendant to purchase a four-bedroom semi-detached standard house in 2007 known as Plot No. C1 within the Tracoaf Estates for Seventy-Five Thousand United States Dollars (US$75,000), which was payable in instalments. The building was to be completed by July 2009, but the 1st Defendant breached the agreement by failing to deliver, necessitating a rearrangement for another house being Plot 8 Samuel Court to be completed by July 2009, which was also not done. In 2010, the 1st Defendant assigned the property to the 2nd Defendant pursuant to a renegotiation, despite it not having been completed. She claims that though the house was roofed, the windows had not been fixed, neither were the tiles, plumbing works, paintings, electricity and water connections. It was the 2nd Defendant who caused them to be done. The 2nd Defendant has since 2010 been in undisturbed possession of the property at all material time, until the building was finally completed in 2018 before she moved into occupation. She further asserts that the undertaking procured from her was done under duress and she has never recognized the legitimacy of the Plaintiffs’ claim before the Court. The 2nd Defendant contends that the said undertaking transferred no title to the Plaintiffs. The Plaintiffs’ case was prosecuted by Adu Poku Isaac with one Abraham Asante- Manteaw testifying as witness. While the former testified as the new attorney appointed by the Plaintiffs, the latter told the Court that he is a Geomatic Engineer, Licensed Surveyor and Geographic Information System (GIS) Consultant engaged by the Plaintiffs to analyse the historical developments on the land in dispute. The 2nd Defendant on her part testified personally and called 5 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 one Emmanuel Quaye as the mason who was engaged by her as Foreman to supervise the construction of the building on the land in dispute. ISSUES FOR DETERMINATION At the Direction stage, the Plaintiffs’ Counsel raised five issues for the consideration by the Court, while the 2nd Defendant’s counsel raised only one, which were all adopted by the Court. The issue raised by Counsel for the Plaintiffs were: a. Whether or not the property (if any) granted to the 2nd Defendant by the 1st Defendant is the same as the Plaintiffs’ property being the subject matter of the suit. b. Whether or not the 2nd Defendant’s Land Title Certificate No. GA 57486 Volume 47 Folio 123 dated 18th January 2019 was obtained on grounds of fraud, mistake and misrepresentation. c. Whether or not the Plaintiffs are entitled to their claims? d. Whether or not the 2nd Defendant is entitled to her counterclaim? e. Any other issues raised by the pleadings The sole issue raised by the Counsel for the 2nd Defendant at the Direction stage was whether or not the 1st Defendant had any interest in the 2nd Defendant’s property to enable it purportedly sell same to the Plaintiffs? Apart from the issues raised by the parties and adopted by the Court, it may appear that the Counsel for the 2nd Defendant took advantage of issue (e) of the Plaintiffs issues to submit on a preliminary issue bordering on the capacity of the Plaintiffs’ Attorney, Esther Adu Poku to institute and maintain the action till Judgment. The argument canvassed by learned Counsel for the 2nd Defendant was that the action was commenced by the Plaintiffs per their Lawful Attorney, Esther Adu 6 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 Poku. Indeed, when the 2nd Defendant was joined to the suit, she challenged the capacity of the said attorney to commence the action on behalf of the Plaintiffs. It is worth stating here that when the Writ of Summons and Statement of Claim were amended on both 5th December, 2019 and 18th August, 2020, the said Esther Adu Poku’s name continued to appear on the processes as the Lawful Attorney of the Plaintiffs and it has remained so until this day. At paragraph 1 of the final Amended Statement of Claim dated on the 18th August, 2020, the Plaintiffs emphatically pleaded as follows: “(1) The Plaintiffs are Ghanaians and currently in the United States of America and bring the instant action through their attorney Esther Adu Poku”. On this assertion, the 2nd Defendant in her Amended Statement of Defence and Counterclaim filed on the 16th April, 2021 denied thus: “(2) The 2nd Defendant denies paragraph 1 of the Plaintiffs’ Amended Statement of Claim and puts the Plaintiff to strict proof”. The denial of the capacity of the Plaintiffs’ Lawful Attorney by the 2nd Defendant at that point effectively put the capacity of the Plaintiffs in issue which they were enjoined by law to establish. It is trite learning that once a Plaintiff’s capacity to commence an action has been challenged, it has to be established before the case can be heard on its merits. The Supreme Court has held that establishing such capacity requires proof. In the case of THOMAS BAIDEN & ANOTHER VRS FRANCIS PARKER, NO. J4/58/2022, 1 FEBRUARY 2023, SC, UNREPORTED, His Lordship Dotse JSC expressed himself thus: “Capacity is vital to the right to initiate any legal action in court. It must be noted that when capacity is raised, the Plaintiff’s alone bears the burden of establishing his/her status to initiate the action. For that matter whatever capacity in which Plaintiffs have instituted the action would require proof…. The position of the law is that where a party’s capacity to sue is challenged, he cannot succeed without proving he had the relevant capacity to sue”. See also ASANTE APPIAH VRS AMPONSAH ALIAS MANSAH (2009) SCGLR 90 @ 95. 7 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 It was on that basis that Counsel for the 2nd Defendant submitted at paragraph 11 of his written address that; “It is clear that ‘Esther Adu Poku’, who commenced the instant action is not suing to enforce a personal right. She has commenced the instant action in the alleged capacity as Attorney of ‘Kofi Aggrey and Cellincia Gyamfi Amankwah (Mrs), who are described as the Plaintiffs’ thus to make the writ competent, evidence of the Power of Attorney duly executed in accordance with law ought to be produced for the Court. A donee’s power to initiate and sustain a legal suit before the Court is based on a validly executed and existing power of Attorney …” It was disappointing that the Counsel for the Plaintiffs took no step to ensure that the capacity of his clients was established and left them at the mercy of the Court. It was expected that the Power of Attorney originally donated to Esther Adu Poku would be tendered during the trial to wipe away any doubt on the authority of Esther Poku to commence the suit on behalf of the plaintiffs. It has been held in the case of NANA ABABIO VRS ESTHER BOAHENE & ANOTHER, SUIT NO. OCC/59/12, DATED 23RD JANUARY, 2014, HC (Unreported but available on Judy Law) that “Once a valid power of attorney has been made, a party may rely on it to sue or defend an action. In a trial, such a person must tender the power of attorney in evidence”. That aside, the Plaintiff’s Counsel shied away from addressing the issue in his written address when his opponent had extensively argued and submitted to the Court that the writ is incompetent for want of capacity to commence and maintain the action. It needs hardly be stressed that though the power of Attorney given by the Plaintiffs to Esther Adu Poku to commence the action was not tendered in evidence during the trial, I found it on the court’s docket when she was conducting the case and filed her witness statement. It is dated 27th January 2017. Unfortunately, that was way before the 2nd Defendant was joined to the suit. Counsel for the 2nd Defendant relied on the authorities of SNEADE VRS. WOTHERTON (1904) 1 KB 295, 297, WARNER VRS. SAMPSON (1959) 1 QB 297, 321 AND KAI VRS. AMARKYE (1982–83) GLR 817 AT HOLDING 2, to the effect that once pleadings or a process has been amended, what stood before the amendment was no longer relevant to the Court. The principle has recently been reaffirmed by the Supreme Court in the recent case of EMMANUEL K. AZAMETI 8 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 VRS. DINGLE DORDZI ATTIPOE & ANOTHER, CIVIL APPLICATION NO. J4/04/2022, 1ST MARCH 2023, PER ASIEDU JSC. Admittedly, I had wanted to rely on the authority of LIVING FAITH WORLD OUTREACH CENTRE & ORS. VRS. THE REGISTRAR GENERAL & ORS, NO. J4/49/2021, DATED 17TH MAY 2023, SC (UNREPORTED) to save the Power of Attorney filed by Esther Adu Poku which is on record, but I realised that it was not possible. In that case, the Plaintiffs whose capacity had been challenged failed to tender their Certificates of Incorporation in evidence during the trial. On appeal to the Supreme Court, their Lordships, with a view to doing substantial justice, relied on the documents that had been attached to an earlier Interlocutory Application, acknowledging that all the parties had the opportunity to ‘consider and scrutinized’ the documents when they were used in the Interlocutory Application. In the instant case however, the 2nd Defendant was not in the matter when Esther Adu Poku tendered her power in evidence and so had no opportunity to consider and examine it. It would therefore be greatly unfair to her to rely on it. I was also determined to save the writ based on the Counterclaim filed by the 2nd Defendant based on the authority of SUBUNOR AGORVOR VRS. MR J.K. KWAO AND AARON NARH ACHIA, CIVIL APPEAL NO. J4/07/2018, DATED 27TH MARCH 2019, where the Supreme Court per Gbadegbe JSC espoused: “Also, there is the effect of the counterclaim of the Defendants against the Plaintiff whose capacity they have ceaselessly denied. By the operation of the Rules on pleadings in Order 11 of the High Court (Civil Procedure) Rules, C.I. 47, the making of a counterclaim against the plaintiff in respect of the disputed land has the effect of constituting an admission that the Plaintiff is a competent person to take out the action herein on behalf of his family. Furthermore, Order 81 rule 2 of C.I. 47, precludes a party who knowingly takes a fresh step in a matter from complaining about a defect in the adversary’s pleading; the technical term employed in the Rules and indeed commonly described by practitioners of the law may be found in the words contained in Order 81 rule 2 namely ‘fresh step after knowledge of the irregularity’. Reading the said rule together with Order 11 on the content of pleadings, it is concluded that the sole ground argued in regard to the want of capacity in the plaintiff is devoid of substance and must fail”. The 2nd Defendant by filing a counterclaim would be deemed to have waived her right to challenge the Plaintiffs’ capacity. Nevertheless, their Lordships later 9 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 reverted to their earlier position adopted in HUSEINI VRS MORU (2013–14) 1 SC GLR 363, where the Apex Court did not consider the filing of a Counterclaim as a waiver or admission of the Plaintiff’s lack of capacity. The consequence was that if the Plaintiff’s action failed for want of capacity, the Counterclaim will equally crash. The Apex Court speaking through Amadu Tanko JSC in ANDREWS NARH – BI (SUBSTITUTED BY JOHN NYONGMO) & 3 OTHERS VRS ASAFOATSE KWETEY AKORSORKU III (SUBSTITUTED BY ASAFOATSE KWETEY) & ANOTHER, CIVIL APPLICATION NO. J4/28/2022, 27TH JULY 2023, UNREPORTED, held: “It is obvious that, the Trial Court committed a fundamental error because a party cannot prosecute a counterclaim against a Plaintiff who is bereft of capacity to have commenced the action in the first place. Having found that the Plaintiff lacked capacity to initiate the action, the Trial Court ought to have struck out the suit as improperly constituted for want of jurisdiction. The converse situation exposes the error of the procedure applied. Per the rules of pleadings, setting up a counterclaim against a party manifests an admission that the said party has capacity to initiate an action and litigate. For purposes of argument therefore, if the trial court’s decision that, the Plaintiff lacked capacity to litigate was right, the court could not, with respect, proceed to deal with and grant the counterclaim of the Defendants against the very non-juristic person who lacked capacity to initiate the action.” (See also KOFI ASAMOAH VRS NANA GUARKRO EFFAH AND KATE ADJEI, H1/64/2021, DATED 24TH JUNE 2021, CA (UNREPORTED) & GEORGE AGYEMANG SARPONG VRS GOOGLE GHANA & GOOGLE INCORPORATED LLC, CIVIL APPLICATION NO. H1/235/2016, DATED 28TH JULY 2018, CA (UNREPORTED). I consider myself bound by the decisions and in the light of the facts of this case, both claim of the Plaintiffs and the Counterclaim of the 2nd Defendant must collapse together. I award costs of GH¢10,000.00 against the Plaintiffs in favour of the 2nd Defendant. (SGD.) H/L ALEXANDER OSEI TUTU JUSTICE OF THE HIGH COURT 10 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 PARTIES: PLAINTIFFS’ LAWFUL ATTORNEY REPRESENTED BY ISAAC ADU POKU DEFENDANTS ABSENT COUNSEL: PAPA KOFI AKUFFO-APENTENG ESQ., H/B FOR FRANK ASAMOAH ESQ., FOR PLAINTIFFS PRESENT JULIUS NKETSIAH ESQ., WITH JOSEPH ABLORDEPPEY ESQ., FOR 2ND DEFENDANT PRESENT REFERENCES: CASES CITED: 1. THOMAS BAIDEN & ANOTHER VRS FRANCIS PARKER, NO. J4/58/2022, 1 FEBRUARY 2023, SC, UNREPORTED 2. ASANTE APPIAH VRS AMPONSAH ALIAS MANSAH (2009) SCGLR 90 @ 95. 3. NANA ABABIO VRS ESTHER BOAHENE & ANOTHER, SUIT NO. OCC/59/12, DATED 23RD JANUARY, 2014, HC 4. SNEADE VRS WOTHERTON (1904) 1 KB 295, 297 11 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024 5. WARNER VRS SAMPSON (1959) 1 QB 297, 321 6. KAI VRS AMARKYE (1982–83) GLR 817 7. EMMANUEL K. AZAMETI VRS. DINGLE DORDZI ATTIPOE & ANOTHER CIVIL APPLICATION NO. J4/04/2022, 1ST MARCH, 2023 PER ASIEDU JSC 8. LIVING FAITH WORLD OUTREACH CENTRE & ORS. VRS THE REGISTRAR GENERAL & ORS, NO. J4/49/2021, DATED 17TH MAY 2023, SC (UNREPORTED) 9. HUSEINI VRS MORU (2013–14) 1 SC GLR 363 10. ANDREWS NARH–BI (SUBSTITUTED BY JOHN NYONGMO) & 3 OTHERS VRS ASAFOATSE KWETEY AKORSORKU III (SUBSTITUTED BY ASAFOATSE KWETEY) & ANOTHER, CIVIL APPLICATION NO. J4/28/2022, 27TH JULY 2023, UNREPORTED 11. KOFI ASAMOAH VRS NANA GUARKRO EFFAH AND KATE ADJEI, H1/64/2021, DATED 24TH JUNE 2021, CA (UNREPORTED) 12. GEORGE AGYEMANG SARPONG VRS GOOGLE GHANA & GOOGLE INCORPORATED LLC, CIVIL APPLICATION NO. H1/235/2016, DATED 28TH JULY 2018, CA (UNREPORTED) ENACTMENT 1. THE HIGH COURT (CIVIL PROCEDURE) RULES, C.I. 47 12 JUDGMENT DELIVERED BY J. ALEXANDER OSEI TUTU IN SUIT NO. LD/0479/2017 AT LAND COURT 7 ON 17TH DAY OF MAY, 2024