Brook Cherith Properties Ltd and Another v Charlemagne Capital and Another (A1/55/22) [2024] GHACC 407 (28 August 2024)

IN THE CIRCUIT COURT OF GHANA HELD IN THE EASTERN REGION (NSAWAM) ON WEDNESDAY 28TH AUGUST 2024 BEFORE HER HONOUR DIANA ADU-ANANE SUITNO. A1/55/22 1.BROOK CHERITHPROPERTIES LTD 2.ABUSUAPAYINJAMES ………… PLAINTIFFS 3.NANA OPARE ODEI II AND 1.CHARLEMAGNE CAPITAL 2.DR. SUSANE. ………… DEFENDANTS JUDGMENT LEONARDSEDZROESQFOR THEPLAINTIFFS. LOMOARYEEESQFOR THE DEFENDANTS The plaintiffs on the 30th of June 2022 caused a writ of summons to issue against the defendantsherein claiming the following reliefs: (a) Declaration of title to all that piece or parcel of land situate, lying and being at Kwasi Doi near Nsawam in the Eastern Region of the Republic of Ghana, comprising approximate 130.37 acres and bounded on the side byAdisi Land, on the next side by Nana Obodan Stream, on the next side by Teacher Adjei land, Opanin Amoafo Land and Akua Ayebea Land and on the next side by Osae Yebio Land. (b) Declaration that the purported Deed of Conveyance dated 7th February 2022 and made between Brook Cherith Properties Limited as vendor and 1 Charlemagne as the purchaser is fraudulent as plaintiff has no knowledge of thesaid transaction. (c) Declaration by the honourable court that the purported Deed of Conveyance dated 15th November 2021 and made between Brook Cherith Properties Limited as vendor and Dr, Susan E. as purchaser is fraudulent as the plaintiff hasno knowledge ofthesaid transaction. (d)An order of the court directing the Lands Commission, Koforidua to expunge fromits recordsthefraudulent transactions. (e) Recoveryofpossession. (f) Generaldamagesfortrespass. (g) Perpetual injunction restraining the defendants, their agents, servants, workmen, personal representatives and assigns from doing anything whatsoever on the plaintiffs’ land pending the final determination of this action. In the accompanying statement of claim, the 1st plaintiff is described as a limited liability company registered under the laws of Ghana. The 2nd plaintiff is described as the Head and lawful representative of the Oyoko Family of Kwasi Doi near Nsawam and the family that leased the disputed land to the 1st plaintiff in 2008. The 3rd plaintiff described as the Chief of Okobeyeyie and owner of part of the land under litigation. The 1st defendant is also described as a company registered under the laws of the Republic of Ghana and purported to have taken a grant of part of the land from the 1st plaintiff, while the 2nd defendant is described as an individual who has purportedlyacquired aparcel ofland fromthe 1stplaintiff. It is the claim of plaintiffs that they are the owners of a large tract of land situated at Kwasi Doi near Nsawam acquired from the 2nd plaintiff’s family in 2008. That in the process of 1st plaintiff demarcating the land, it inadvertently entered the land of 3rd 2 plaintiff, and it was amicably resolved that 1st plaintiff would pay for that portion of land measuring 25 acres. Thus, the total land size measuring 130.37 acres has been duly registered by the 1st plaintiff with the Lands Commission, Koforidua with three differentindentures. The plaintiffs averred further that though the deeds of conveyance did not expressly state the interest of the 2nd and 3rd plaintiffs, they have an interest because by the consideration paid for the land, the 1st plaintiff was to construct some buildings for 2nd plaintiff andmake paymentstothe 3rdplaintiff. The 1st plaintiff asserted that, it recently conducted a search at the Lands Commission in Koforidua and the search report showed that the 1st plaintiff has purportedlyconveyed partofthe land to1stand 2nddefendants. The 1st plaintiff averred that the purported deed of conveyance made between the 1st plaintiff and the 1st and 2nd defendants were procured by fraud. The particulars of fraud werepleaded asfollows: a. The Deed of Conveyance dated 7th February 2022 and made between Brook Cherith Properties Limited as vendor and Charlemagne Capital as purchaser isfraudulent. b. The Deed of Conveyance dated 15th November 2021 between Brook Cherith Properties Limited as vendor and Dr. Susan E. as purchaser is fraudulent because the 1st plaintiff at no point in time executed an indenture to the said Dr.SusanE. The plaintiffs pleaded that they have never dealt with the 1st and 2nd defendants concerning the land under litigation. That the purported grant of land by the 1st plaintiff to the defendants is fraudulent as the relevant officers of the 1st plaintiff nevergranted the said land to the defendantshence the instant suit. 3 The defendants on the 11th of August 2022 entered appearance through their then counsel Hans Kofi Adde Esq. having been served by substituted service. After close of plaintiffs’ case, the defendants on the 13th of September 20223 filed a notice of change of solicitor with Adelaide Kobiri Woode as their new solicitor. The defendants again on the 21st of November 2023 engaged Lomo Aryee Esq. as their counsel and after filing of the necessary processes took over the steering of defendants’case toconclusionbefore this court. The defendants largely denied the claim of the plaintiffs. The defendants pleaded that the 1st plaintiff is also part and parcel of the 1st defendant company and that the1st defendant had the right to alienate the land acting upon a power of attorney granted to1stdefendant by the 1stplaintiff dated the14thofApril2021. The defendants averred that its transactions pertaining to the land in dispute fell within the valid Agreement To Transfer Land at Kwasi Doi signed between 1st plaintiff and 1st defendant dated the 31st of January 2022 by which agreement 1st defendant was to sell the land to facilitate part payment of the USD 4,672,772 debt the1stplaintiff wasowing and still owesto Mr.HenryTettehsince 2013. The plaintiffs on the 23rd of December 2022 filed a reply to the defendants’ defence therebyjoining issues withthe defendantsontheir defence. At the close of pleadings, the following issues and additional were set for determination: 1. Whether or not the 1st plaintiff owed one Mr. Henry Tetteh a debt of USD 4,672,772. 2. Whether or not the 1st plaintiff signed an agreement to transfer ownership of thedisputed land tothesaid Mr.HenryTetteh. Additionalissues: 4 3. Whether or not 1st plaintiff ever used the land in issue as collateral for a loan of USD 4,672.772 repayable to its creditor (Mr. Tetteh) at an agreed interest of 80% perannum? 4. Whether or not the USD $ 4,672.772 loan with agreed interest thereon owed by 1st plaintiff herein has been amortized along with interest or it is still due and owing? 5. Whether or not the USD $ 4,672.772 loan with interest thereon owed by the 1st plaintiff hasoutgrownthe value oftheland in issue? 6. Whether or not 1st plaintiff donated a power of attorney to 1st defendant hereinto negotiate aloanrepaymentwith 1stplaintiff’screditor? 7. Whether or not 1st defendant successfully negotiated the repayment of the loanby beating down the previously agreed interest rate of 80% per annum to a marginal/negligible 5% per annum to enable 1st plaintiff to repay its genuine debt? 8. Whether or not it was mutually agreed that the land in issue be sold to repay theUSD$4,672.772loanwithinterest thereonowed by the1stplaintiff? 9. Whether ornot it wasmutually agreed the land be transferred to 1stdefendant which company shall monitor and facilitate the sale of the land to amortize theUSD$4,672.772loanwithinterest thereon. FINDINGS OF FACTBY THE COURT It was held in Holding (1) of the case of Agyenim-Boateng v. Ofori & Yeboah [2010] SCGLR861that: “It is the trial court that has the exclusive right to make primary findings of fact which would constitute building blocks for the construction of the judgment of the court where such findings of fact are supported by evidence on the record and are basedon thecredibility ofwitnesses…” 5 Breeding on the strength of this principle, besides the issues identified by the court fordetermination, the following findings offact werealso made by the court: 1. That the land the subject matter of dispute measuring 130.37 was originally acquired by the 1st plaintiff and covered by three separate indentures as follows: a. Indenture dated the 7th of May 2008 between the Oyoko Family of Kwasi Doi represented by its lawful head and representative Kwame Amoah Mensah and 1st plaintiff and stamped as LVB 995/2011 containing 49.03 acres. b. Indenture dated 7th May 2008 between the Oyoko Family of Kwasi Doi represented by its lawful head and representative KwameAmoah Mensah and 1st plaintiff andstamped as LVB997/2011 containing 41.49acres. c. Indenture dated 7th May 2008 between the Oyoko Family of Kwasi Doi represented by its lawful head and representative KwameAmoah Mensah and 1st plaintiff andstamped as LVB1077/2011 containing 39.85acres. 2. That per a deed of conveyance dated the 15th of November 2021, the 1st plaintiff transferred its interest in 5.03 acres of the disputed land to the 2nd defendant. 3. That the 1st plaintiff subsequently per a deed of conveyance dated the 7th of February 2022 transferred its interest in 125.49 acres of the disputed land to the1stdefendant. 4. That the 1st plaintiff in transferring its interest in the land to the defendants acted throughitslawful attorney,BenAbban. 5. It is not disputed that the 1st plaintiff herein has transferred its interest in the land to the defendants, what is in contention is that the 1st plaintiff is disputing the said transfer asnot its deed thereforefraudulent. 6. It is also settled that the 1st plaintiff is operated by two brothers namely NicholasAndrewKyem-Amporteyand Patrick George Kyem-Amportey. 6 7. That Patrick George Kyem-Amportey bears the same name as his father with theson occasionally adding the suffix IIIorJr.tohis name. In this judgment, for the sake of clarity, reference to the father will be with the suffix senior and junior tothe son. BURDENANDSTANDARDOF PROOF It is a basic principle in the law of evidence that, a party who bears the burden of proof is to produce the required evidence of facts in issue that has the quality of credibility, short of which his claim may fail. It is also trite that, matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of the fact is more probable thanits nonexistence. See: Section 11 (4) of the Evidence Act 1975 (NRCD 323) ; Ackah vrs Pergah Transport Ltd & Ors (2010) SCGLR 728; Gihoc Refrigeration & Household Products Ltd. vrsHanna Assi (2005-2006) SCGLR458. The standard of proof of allegations in civil cases is proof by preponderance of probabilities. However, when crime is pleaded or raised, then the allegation sought tobe provedmust be provedbeyond reasonable doubt. In the case of Ayeh & Akakpo v Ayaa Iddrisu (2010) SCGLR 891, the Supreme Court gave afuller expression to section 13(1) of the Evidence Act, 1975 (NRCD 323) as follows “the rule in section 13(1) of the Evidence Act, 1975 (NRCD 323), emphasizes that where in a civil case, crime is pleaded or alleged, the standard of proofchangesfromthe civil oneofthebalance ofprobabilities tothecriminaloneof proof beyond reasonable doubt”. The section itself reads: “in a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issuerequires proofbeyondreasonable doubt”. 7 In proving and disputing the claims of plaintiffs, both parties filed witness statements which they relied on as their respective evidence and tendered various documents during the trialwhich wereadmitted without objection. SUMMARYOF PLAINTIFFS’ CASE. The 1st plaintiff directors, Nicholas Andrew Kyem-Amportey testified for the 1st plaintiff and on behalf of the 2nd and 3rd plaintiffs. The other director Patrick George Kyem-AmporteyJunior testified asawitness fortheplaintiffs. Gleaned from their evidence while not disputing the transfer of the 1st plaintiff’s interest in the disputed land to the defendants, the 1st plaintiffs’ witnesses are claiming that it was never done. It is their case that they discovered that the land has been fraudulently transferred to the defendants through a search conducted at the Lands Commission. That in response to the defendants defence, their counsel filed a notice to produce document that is, the Agreement to Transfer Land at Kwasi Doi dated the 31st of January 2022 and upon being served they as directors of 1st plaintiff unequivocally state they know nothing about the said document and have never transacted with the defendants hence this suit for the defendant to tell the world who executed thesaid document. The plaintiffs’witnesses tendered the following documents in evidence without any objectionasfollows: i. Search dated 1st July 2022 from the Registrar Generals Department showing the directorsof1stplaintiff asExhibitA. ii. Three indentures covering the disputed land all dated the 7th of May 2008 and stamped as LVB 995/2011; LVB 997; LVB 1077/2011 and marked as Exhibit B,B1 andB2. iii. Search from the Lands Commission, Koforidua confirming the transfer by 1stplaintiff tothedefendants dated the 21stofApril 2022asExhibit C. 8 iv. Notice to produce document filed on the 7th of September 2022 as Exhibit D. v. Response to notice to produce document by counsel for defendants with attached document titled "Agreement to Transfer Land at Kwesi Doi dated the31stofJanuary 2022as Exhibit D1. vi. Deed of Conveyance dated 15th November 2021 between Brook Cherith Properties Limited asvendorand Dr.SusanE.as purchaser asExhibit F. vii. Deed of Conveyance dated 7th February 2022 and made between Brook Cherith Properties Limited as vendor and Charlemagne Capital as purchaser as Exhibit F1 Thereafterthe plaintiffs closed their case. SUMMARYOF DEFENDANTS CASE The 1st defendant testified through its director, Ben Abban and one Henry Tetteh testified onbehalfofthe 2nddefendant. It is the case of the 1st defendant that Ben Abban is the lawful attorney of 1st plaintiff having been duly appointed as such by 1st plaintiff acting per Mr. Patrick George Kyem-Amportey senior. That 1st plaintiff acting per Mr. Patrick George Kyem-Amportey senior willingly and knowingly put forth the land in issue to offset a loan of Fifty Thousand United States Dollars ($50,000.00) repayable to the creditor Mr. Henry Tetteh at an interest rate of 5% per month which interest rate had been reduced from previously agreed rate of 80% per month as per an agreement dated3rd December2013and withthe land inissue as collateral. It is the case of 1st defendant’s representative that the said loan with its accumulated interest compounded to a colossal total of US$4,672.772 as at the time interest on same was frozen by mutual agreement negotiated by DW1 dated 8th September 2021 from which point no further interest was to be exacted until final paymentofthe debt. 9 According to DW1, the power of attorney along with a Facilitation Agreement was given to him to re-negotiate/facilitate the repayment of US$ 4,672.772 debt to Mr.Tettehwhich he successfully did. It is the claim of DW1 that due to 1st plaintiff per Patrick Kyem Amportey’s inability to pay the debt, it was mutually agreed the disputed land be valued at US $500,000.00 and be used to pay off part of the accumulated debt and to this end Mr. Patrick George Kyem-Amportey as Chairman of Charlemagne Capital Commodities Limited mutually agreed the land be transferred to 1st defendant to facilitate itssale and repayment ofthedebt. Consequently, an Agreement to Transfer Lands at Kwasi Doi dated the 31st of January 2021 was duly executed between 1st plaintiff, the borrower represented by its lawful attorney, Mr. Ben Abban, Mr. Henry Tetteh, the lender and 1st defendant represented by Mr.BenAbban. That pursuant to this agreement, Mr. Ben Abban entered into Additional Agreement to Offset the Debts owned by Patrick George Kyem-Amportey with Mr.HenryTettehdated the9th ofSeptember 2021. Further, Mr. Ben Abban and Patrick George Kyem-Amportey senior signed a Memorandum of Understanding by which the said Patrick George Amportey undertook to pay Mr. Tetteh an amount of US$ 450,000.00 on or before the 28th of September 2020 but he reneged with impunity therefore plaintiffs are not entitled totheir claim. The 1st defendant’s witness tendered some exhibits in evidence without any objections in support of their case. It must be noted that it was agreed by the court and respective counsels that 1st defendant through its representative tender additional documents in evidence when he mounts the witness box. However, some of these exhibits were already attached to 1st defendant’s representative’s witness statement resulting in double marking of some exhibits. Unfortunately, 10 some of these exhibits were forwarded to the Ghana Immigration Service for forensic analysis, so the different markings will be maintained so as not to conflictthe reportofthe expertwitness. The exhibitsare asfollows: a. Power ofAttorney for the period 14thApril 2021 and 13thApril 2022 as Exhibit 1or8. b. FacilitationAgreement as Exhibit 2and 9B c. Repaymentschedule as Exhibit 3. d. Agreement to Transfer Lands at Kwasi Doi dated the 31st of January 2022 as Exhibit 4and 9E. e. Additional Agreement to Offset the Debts owed by Patrick George Kyem- Amporteyas Exhibit5and 9F. f. Letter of Undertaking of Repayment of Debt by Charlemagne Capital dated the5th ofSeptember 2020asExhibit 6. g. Certificate ofIncorporationof1stdefendant company as Exhibit 7series. h. Exhibit 8 series comprises the following; Power of Attorney from Brook Cherith Properties to Benjamin Abban a.k.a Ben Abban dated 14th April marked either Exhibit 1 or Exhibit 8; Letter on Brook Cherith Properties Letter Head dated 4th November 2020 and titled Appointment of Executive Director as Exhibit 8A; British Passport numbered 546786883 of Kyem-Amportey Patrick George as Exhibit 8B; Pictures ofpersonsaround atable asExhibit 8C, 8D, 8E& 8F. i. Organisational Chart of Charlemagne Foundation as Exhibit 9; Acknowledgment of receipt of document and discharge of liability Peakson Law Consult dated 29th November 2019 marked Exhibit 9A; Facilitation Agreement Exhibit 9B; Tabulation of interest on $ 50,000.00 at 5% at total of US $ 4,672,774 as Exhibit 9C; Acknowledgment of receipt of payment dated the 3rd December 2013 Exhibit 9D; Agreement to transfer Land at Kwasi Doi as 9E; Additional Agreement to Offset the Debts owed by Patrick George 11 Kyem-Amportey as Exhibit 9F; WhatApp correspondence with heading Patrick Jnr UK # as Exhibit 9G; Document titled Sale of Land at Kwasi Doi as Exhibit 9H; Document titled Receipt of Payment dated 3rd December 2013 as Exhibit 9J; Stock PurchaseAgreement asExhibit 9K Henry Tetteh testified as a witness for the 1st defendant. His evidence was essential a corroboration of 1st defendant’s representative’s evidence and he confirmed he loaned the amount of US$50,000.00 to 1st plaintiff acting per Patrick George Amportey senior. That in furtherance to advancing the loan, Patrick George Kyem Amporteysenior,gavehim the original land documents ascollateral. That Patrick Kyem Amportey senior failed to pay the money due him after several promises topay same and laterabsconded to Spain to avoid legalaction against him. He disputed claims of the death of Patrick George Kyem Amportey senior without any proof. That upon failure of 1st plaintiff to pay the loan and accumulated interest, it was agreed between the parties, specifically, Patrick George Kyem Amportey senior, Patrick George Kyem Amportey Junior, Mr. Ben Abban the lawful attorney of 1st plaintiff and himself that the disputed lands be transferred to the 1st defendant company tofacilitate the sale ofthe land and repaytheamount due him. DW2, continued that, to make the land which was a farmland attractive and accessible to potential buyers, he expended further monies to construct roads and a bridge. He relied mainly on documents already tendered in evidence by the 1st defendant’s representative. Thereafterthe defendantsclosed their case. At the end of trial, counsel for the parties filed written addresses and same is duly considered in writing this judgment. 12 EVALUATIONANDANALYSIS OF EVIDENCE It is the claim of 1st defendant’s second witness Mr. Henry Tetteh that on the 3rd day of December 2013, he entered into a Financial Assistance Agreement with the 1st plaintiff represented by Patrick George Kyem Amportey senior (Managing Director) of the company acting on specific instructions from all the directors of the company to obtain financial assistance from him to support the importation of commodities namely sugar to Ghana by the company. The defendants tendered a copy of the said Financial Assistance Agreement also referred to as Facilitation Agreement in evidence without objectionandmarkedas Exhibit 2orExhibit 9BorExhibit 9D1. Alook at the said agreement, it was executed by Mr. Henry Tetteh, (the lender), Mr. Patrick Kyem (borrower) for and on behalf of Brook Cherith Properties Limited as Directorand witnessed by BenAbban. The deathofPatrick George KyemAmporteyseniorcame up during hearing, though there is nothing before the court to confirm same. However, it is trite that evidence against thedead must be scrutinized withutmost suspicion. S. A. Brobbey, in his book – Practice and Procedure in the Trial Courts and Tribunalsof Ghana (2nd Edition) wrotethe following atPage 175: “…The rule is that evidence against a deceased person must be scrutinized with the utmost suspicion …”. On the same topic, the esteemed Francois JA(as he then was) commented as follows inthe case ofMoses v.Anane (1989-1990) 2GLR, 694: “…A claim against a deceased’s estate… must be scrutinized with the utmost suspicion. Proof must be strict and utterly convincing as one of the protagonists wasdeadandcould notassert his claim…”. 13 However, whether died or alive, the said Patrick George Kyem Amportey, senior, is not in court to speak for himself, therefore documents ascribed to him must be carefully scrutinized. Itwas thereforea welcoming relief when counsel forthe defendantsprayed the court to have the signatures of the father and son bearing the same name forensically examined. The selected exhibits which were already in evidence and specifically requestedtobe examined by counselfor the defendant wereasfollows:  Letter on Brook Cherith Properties Letter Head dated 4th November 2020 and titledAppointment ofExecutive DirectorasExhibit markedExhibit 8A.  British passport numbered 546786883 bearing the name Kyem-Amportey Patrick George markedExhibit 8B.  FinancialAssistance Agreement/FacilitationAgreement marked either Exhibit 9D1, 2or9B.  Power of Attorney from Brook Cherith Properties to Benjamin Abban a.k.a BenAbban dated14thAprilmarked either Exhibit 1orExhibit 8.  Stock Exchange agreement dated8th September 2020markedExhibit 9K.  Acknowledgment of receipt of documents and discharge of liability of PeaksonLawConsult dated 29thNovember 2019marked Exhibit 9A. The expert witness tendered in her report which was admitted into evidence without any objection as Exhibit CW1. She further testified that in the course ofher work, she obtained the Biodata page of the passport and the 2017 disembarkment form of Patrick George KyemAmportey, Junior, from the Passenger Information Database of the Ghana Immigration Service since there was no specimen signature for him in the requestdocuments, same wasadmittedin evidence asExhibit CW2. That she also contacted Peakson Law Consult concerning the authentication of the signature on Exhibit 9A. The response received was admitted in evidence as Exhibit CW3. 14 The expert witness in concluding on the signatures of Patrick George Kyem Amportey senior stated that her analyses indicated significant difference in all the questioned signatures as compared to the specimen signature of Mr. Patrick George Kyem Amportey. However, the four signatures which were compared with the specimen signature, that is Exhibits 8A, 9D1,9J and 9K according to the expert revealed significant similarities, thereby indicating an internet transaction. The specimen signature as stated by the expert witness was the British Passport of Mr. Patrick George Kyem Amportey senior, which specimen document the expert witness testified she contacted the British Council as part of her investigation and its authenticitywas confirmed by the British Council. With regards to the signatures of Patrick George Kyem Amportey Junior, the expert stated that his signature on his passport and signatures on Exhibit 9A, the Acknowledgment of receipt of document and discharge of liability of Peak Law Consult dated 29th November 2019 and the signature on Exhibit 9K, Stock Purchase Agreementweresimilar,thus signed by thesame person. I have read the report of the expert witness as well as her evidence under cross examination and the evidence of the parties and in conclusion agree with the findings of the expert witness that there are remarkable differences in the signature of Mr. Patrick George Kyem Amportey senior on his British Passport, the specimen signature and the signatures on Exhibits 8A,9D1,9J and 9K attributed to him on record. In coming to this conclusion, this court cautions itself on the settled position of the law that where the authorship of a writing is in dispute and handwriting experts are called to offer expert opinion such opinion is only meant to assist the judge in forming her opinion as to the authorship of the writing and is not binding on her. It is the judge who has the final say as to who the author of the writing is. See Commey vrs Bentum-Willams [1984-86] 2GLR 303. I noticed from Exhibit CW1, the 15 expert witness identified many different features between the signatures attributed to Mr. Patrick George Kyem Amportey senior and his signature on his passport, the specimen signature and she herself admitted so under cross examination. I have taken a close look at the signature on the British passport, the specimen signature and compared it with the signatures on the other documents, namely facilitation agreement or financial assistance agreement, power of attorney, among others and I have formed the opinion that the signature on Exhibit 8B or 2 is not the same person who signed the signatures on the other documents attributed to Mr. George Kyem Amportey senior. Though, no two signatures are exactly the same, the differences are remarkable and cannot be glossed over. I therefore hold that the defendants herein failed to prove that Mr. Patrick George Kyem Amportey, senior signed Exhibits8, 8A, 2/9D1/9B, 9K. Nevertheless, assuming without admitting the signatures were that of Patrick George Kyem Amportey senior, the question is can his acts be attributed to the 1st plaintiff herein. Toanswer this question, I would have to establish the relationship of Patrick George KyemAmporteysenior to the1stplaintiff. It is the claim of the defendants that Patrick George Kyem Amportey senior was the managing director of the 1st plaintiff. This is however not supported by the documents on record. The plaintiffs tendered in evidence without objection a search dated the 1st of July 2022 showing the directors of 1st plaintiff as Exhibit A. The said Exhibit A clearly shows the first and current directors as Patrick George Kyem Amportey Junior and NicholasAndrew KyemAmportey. This was confirmed by the 1stdefendant representativeunder cross examinationas follows: Q. I put it to you that per Exhibit A, Nicholas Andrew Kyem Amportey and his brother PatrickGeorge KyemAmportey arethe current directors of the 1st plaintiff? A. To be truly honest with you, the only time I became aware that Patrick George Kyem Amportey and Nicholas Andrew Kyem Amportey were the only directors of Brook Cherith on 16 record without Patrick George Kyem Amportey senior as the director of the company was when we conducted a search on this company because of this case. At all times he in the presence of Patrick George Kyem Amportey Junior and Nicholas Andrew Kyem Amportey he has signed documents as the managing director and sometimes as the Chairman of Brook Cherithwithout protestor correction by any of the said directors of the company. Q. You agree with me that currently there is no document from the Registry that Patrick GeorgeKyem Amportey senior was the managing director of BrookCherith? A. To the best of my knowledge there is no document from the Registry that Patrick George KyemAmportey senior was director of BrookCherith. Q. I put it to you that you have failed in your attempt to ascribe any purported transaction between the 1st plaintiffand the defendants in this suit? A. I do not think that is correct at all, because these directors namely Patrick George Kyem Amportey Junior and Nicholas AndrewKyem Amportey were all involved in this transaction. They were present and did not put themselves up as directors of the company nor did they at any point ask their father not to represent them. Patrick George Kyem Amportey senior did representhimself as the managingdirector of BrookCherith and did transact business as such so the attempt by Patrick George Kyem Amportey Senior Junior and Nicholas Andrew Kyem Amportey to label their father Patrick George Kyem Amportey Senior of committing fraudulent act by representing himself as managing director in their presence is rather an attempt tothrowdustinto the eyesof the courtor to mislead the court. In considering persons who actions are binding on a company, I shall refer to the Company’sAct2019(Act 992)for guidance. Section 144 (1) headed Division of powers between general meeting and board of directors provides that: 144 (1) A company shall act through the members of the company in general meeting or the board of directors or through officers or agents, appointed by, or 17 under authority derived from the members in general meeting or the board of directors. Section 147(1) also provide that: An act of the members in general meeting, of the board of directors, or of a managing director while carrying on in the usual way the business of the company, is the act of the company; and accordingly, the company is criminally and civilly liable for that act to the same extent as if the company were anaturalperson. Further,Section 170of Act992defines directorstomean either ofthe following: 170 (1) For the purposes of this Act "directors" means those persons, by whatever name called, who are appointed to direct and administer the business of the company. 170 (2) A person, not being a duly appointed director of a company, (a) who holds outasadirector orknowingly allows to be held outasadirector ofthat company, or (b) on whose directions or instructions the duly appointed directors are accustomed to act, is subject to the same duties and liabilities as if that person were aduly appointed director of the company. (3) Subsection (2) shall not derogate from the duties or liabilities of the duly appointed directors, including the duty not to act on the directions or instructions ofany other person. (4) Where a person, who is not a duly appointed director of a company, holds out as a director or knowingly allows to be held out as a director of the company, or if the companyholds outthat person, or knowingly allows that person to hold outas a director of the company, that person or the company, is liable to pay to the Registrar,an administrative penalty of two hundred and fifty penalty units. (5) For the purposes of subsections (2), (3) and (4), a person who is described as director of a company, whether the description is qualified by the word "local", 18 "special", "executive": or in any other way, shall be deemed to be held out as a director of thatcompany. Thus, a person who had not been duly appointed a director of a company, (which was to say, in accordance with the legal provisions quoted above), but nevertheless acted or held himself out, or allowed himself to be held out as such director, committed anoffence punishable by afine prescribed by law. Can such a person’s actions be binding on the company? I will answer in the affirmative.Such personsarecommonly referredtoas de facto directors. In Commodore v Fruit Supply Ghana Ltd [1977] GLR, 241, CA, the facts were that a non-shareholder of a company who had not been appointed a director of the company had functioned together with the Managing Director of a company, and had hadhis name allowed tobe printed onthe company’sletterhead as director,and transacted business on behalf of the company; it was held that even though the non- shareholder had not been appointed a director of the company, the trial judge ought to have held that on the facts, he had been held out as a director of the company and thecompany thereby estoppedfromdenying thathe wasadirectorofthe company. Thus, applying the material holding in Commodore v Fruit Supply (supra) to the facts of this case, would it be reasonable to say even if Patrick George Kyem Amportey senior was not duly appointed a director of the company, he ought to havebeenconsidered ade facto directorofthe1stplaintiff company? From the records it is established that there is no document evidencing the appointment of Patrick George Kyem Amportey senior as a director of the 1st plaintiff. Inthe absence ofany documentaryproof ofhis appointment asdirector,the defendants claimed he held himself as such and acted as such in the presence of the two shareholders and directors who happen to be his sons without any objections. This is denied by the two directors. Did the defendants present any evidence to 19 confirm their assertion? I haveperused the documents tendered by the defendants in support oftheir case and makethe following observations: I begin with the FacilitationAgreement, or the FinancialAssistanceAgreement dated the 3rd of December 2013 between Henry Tetteh and Brook Cherith Properties Limited represented by Mr. Christopher Dlugiewicz its director and authorised signatory. A look at the signatory page reveals contrary to the authorised signatory, one Patrick Kyem which according to the defendants is the father or senior signed as director. This agreement for the USD 50,000 loan is the genesis of this dispute, and it is the claim of the defendants that the money was handed over to Patrick George Kyem Amportey senior and counted by Patrick George Kyem Amportey Junior. However,the said document was not witnessed orco-signed by any of the registered directorsbut ratherby BenAbban. Then there is another document dated the 3rd of December 2013 on Brook Cherith Letter head titled Receipt of Payment. In this letter it is purported that Patrick George Kyem Amportey senior acknowledged receipt of USD $50,000, from Henry Tetteh.This is notco-signed or witnessed byany ofthe registered directors. The next document is Exhibit 8A dated the 4th of November 2020 and headed Appointment as an Executive Director. In this letter written on a letter head of Brook Cherith, Patrick George Kyem Amportey senior purportedly appointed Mr. Ben Abban as executive director of Brook Cherith to oversee the sale of lands situate at Kwesi Doi in the Eastern Region. This is also not co-signed with any of the two directorsof1stplaintiff. Then surprisingly, having been appointed executive director with the sole mandate to sell the lands at Kwasi Doi, on the 14th of April 2021, the Board of Directors of Brook Cherith purportedly acting by Patrick George Kyem Amportey senior appoints Mr. Ben Abban an existing executive director of 1st plaintiff as its lawful attorney again with the mandate of selling 147.37 acres at Kwasi Doi for up to Two 20 Million USD. The power of attorney was valid for a year. This was also not co-signed orwitnessed by any oftheregistered directorsof1stplaintiff. Inanotherdocument titledAdditionalAgreement tooffset the debtsowedby Patrick George Kyem Amportey, the borrower and dated the 9th of September 2021, Ben Abban acting on behalf of Patrick George Kyem Amportey senior enters into an agreement to release the Kwesi Doi documented lands valued at USD $500,000 to Mr. Henry Tetteh as part payment of an outstanding loan of USD 4,672.772. Again, on theface ofthe agreement, noneofthe registereddirectors of1stplaintiffis privy toit. It must be emphasised that Mr. Henry Tetteh has always maintained the original documents covering the lands were given to him in 2013 as collateral for the USD 50,000.Sowhy release tohim documentsalready in his possession. Further, on the 15th of November 2021, after the supposed release of the documents to Henry Tetteh, Mr. Abban ostensibly acting as the lawful attorney of 1st plaintiff wentahead to sell5acresofthe land to oneDr.Susan Ese Stacy. Once more, after valuation of the land at USD 500,000 and supposed release of the land documents to Henry Tetteh, between Ben Abban and Henry Tetteh, another agreement was reached between Ben Abban representing 1st plaintiff and Henry Tetteh. In this agreement, the parties are now claiming the USD 500,000 they earlier agreed as the value for the land is disputed, so the land measuring 146.37 acres is transferred from the 1st plaintiff represented by Ben Abban to the 1st defendant represented by the same BenAbban to sell under the supervision of Henry Tetteh to now realise the full value to be paid to Henry Tetteh in satisfaction of the debt owed him. There is yet another document headed Letter of Undertaking on Charlemagne letter head dated the 5th of September 2020 to Mr. Henry Tetteh, subtitled Repayment of Debt. 21 This letter reads: “We Charlemagne Capital Commodities Ltd, hereby irrevocably confirm full corporate responsibility that on or before 28th September 2020, we will arrange for the payment of Four Hundred and Fifty Thousand USD”. This letter is signed by Patrick George KyemAmportey as Chairman and Benjamin PatrickAbban asCEO. It is surprising why Charlemagne Capital would now assume responsibility for a debt thedefendants haveinsisted is owedby 1stplaintiff. The 1st defendant through its representative pleaded that 1st plaintiff is part and parcel of 1st defendant company, yet clearly from the registration documents of 1st defendant tendered in evidence it mentions BenAbban and one Mohammed Muniru Kassim asdirectors. There is another agreement titled Stock Purchase Agreement dated the 8th of September 2020. This agreement is between Mc Fonck Partners SA and Patrick George Kyem-Amportey at Charlemagne Capital Commodities Limited. The agreement is signed by Patrick George Kyem Amportey and Patrick John Kyem Amportey Junior, for Charlemagne Capital Commodities Limited. It must be noted that though the name here is Patrick John Kyem Amportey Jr., the signature expert confirmed that the signature for Patrick John Kyem Amportey Jr. is a match of the signature of Patrick George Kyem Amportey Junior, on the bio-data page of his passport. This court does not dispute the findings of the signature expert that though different names it is the signature of Patrick George KyemAmportey Junior, nevertheless, the instant suit is about a transfer of the 1st plaintiff’s interest in the land the subject matterofdispute tothe 1stdefendant. The last document is titled Acknowledgment of receipt of documents and discharge of liability of Peakson Law Consult. This document commences with a letter addressed to one Mrs Yankson from Patrick George Kyem Amportey III requesting 22 for the release of Nsawam land documents to Mr. Ben Abban for the purpose of getting a facility against the land to pay for debts they have created. Then below is an Acknowledgment of receipt of the documents by Mr. Ben Abban from Eyram Dotse on behalf of Mrs. Perpetual Yankson. Once more, this court has no basis to doubt the signature expert’s findings that the signature on this document is similar to the signatures on Patrick George KyemAmportey Junior’s passport bio-data page and the signature on the stock purchaseAgreement, confirming it is the same person who signed these documents asPatrick George KyemAmporteyJunior. This document titled Acknowledgment of receipt of documents and discharge of liability of Peakson Law Consult which is established bears the signature of Patrick George KyemAmportey Junior’s signature exposes his claim that he had no business relationship with Ben Abban but only knew him to be his late father’s friend to be false. Clearly, inferred from this letter, Patrick George KyemAmportey Junior knew the 1st defendant’s representative Mr. Ben Abban on a more business level than a mere acquittance ashe wantsthecourt tobelieve. The question however is that can this letter authored by Patrick George Kyem Amportey Junior for the release of the land documents to Mr. Ben Abban be stretched to mean the 1st plaintiff herein took a loan from Henry Tetteh and further appointed Mr. Ben Abban to act as his lawful attorney? I am afraid not, considering the fact that the signatures on these documents have been refuted as authored by Patrick George KyemAmporteysenior. Moreover, contrary to defendants claim that the two directors of 1st plaintiff were in the known of their late father holding himself out and acting as the managing director of 1st plaintiff without any objection or query from them, the documents tendered do not support such an assertion as they never co-signed nor witnessed any ofthepurported documentarytransactions ascribed totheir father. 23 The pictures of the two directors, with their father, Mr. Ben Abban and others at a table tendered in evidence could be pictures taken at any event and cannot be pinned down to the said transactions. There are no dates to even confirm when they weretaken. I therefore find as a fact that defendants’ assertion that Patrick George Kyem Amportey held himself out and acted as the managing director of Brook Cherith Properties Limited in the presence and awareness of the two registered directors of 1st plaintiff is not supported by any document. What is apparent per the available records are transactions ostensibly between Patrick George Kyem Amportey senior, the 1st defendant’s representative Mr. Ben Abban and Mr. Henry Tetteh. The pictures tendered,I amafraid do notconstitute proofofanybusiness transactions. Gleaned from the above analysis, I proceed to resolve the issues set for determinationasfollows: That the defendants failed to provide any evidence to buttress their claim that 1st plaintiff owed oneMr.HenryTettehadebt ofUSD4,672,772. Further, there was no evidence on record to support the assertion that the 1st plaintiff signed an agreement to transfer ownership of the disputed land to the said Mr.HenryTetteh. Since there is no evidence on record to support the taken of the loan by the 1st plaintiff herein from Henry Tetteh, the alleged use of the land in question as collateral for a loan of USD 4,672.772 repayable to its creditor (Mr. Tetteh) at an agreed interest of80% perannum is ofno consequence. Moreover,the failure to establish the taken ofthe said loanby the 1st plaintiff renders the issue on interest due and still owing as well as the loan sum outgrown the value ofthe land isredundant. 24 Concerning the power of attorney, the evidence on record is overwhelmingly in support of the fact that it was not authored by Patrick George Kyem Amportey senior and even if he did, not been a registered shareholder or director of 1st plaintiff coupled with the lack of evidence in support of the assertion that he was held out or held himself out or the registered directors acted on his instructions renders the said power of attorney of no effect. Consequently, actions professedly taken under this power of attorney in successfully renegotiating loans, selling land to another and transferringlands to 1stdefendant is ofno bindingeffect. When fraud is alleged, it should be pleaded and specifically proven by leading evidence on it. Fraud has been proven to have among others the following ingredients. a) It vitiates every transaction including judgments and orders. Thus, once it is proved,it willwipe and sweepeverything away. b)It connotescriminal conduct, and the sanctions may include imprisonment. c)The burdento provefraud is onthepersonalleging it. d)Itmust be proved beyond reasonable doubt. See: Mass Products Ltd V Standard Chartered Bank & Anor (2014) 69 GMJ 39 SC ; Twum V SGS Ltd (2011) 30 GMJ 92 CA ; Okofo Estates Ltd V Modern Signs Ltd (1998-99) SCGLR 224; Sasu V Amuah Sekyi & Anor (2003-2004)2 SCGLR 742 ; Republic V Circuit Tribunal Koforidua, Exparte Nana Anku; Dodozah Didieye III (2006) 4 MLRG 165 CA; Adumuah Okwei V Ashieteye Laryea & Anor (2011) 1 SCGLR317;Poku V Poku (2007-2008) SCGLR996. Fraud is a serious matter that, even in some instances, when it is not specifically pleaded but is led in evidence without objection, the rules of evidence are relaxed for theCourtto entertain same. See:Philip MorroDjima V Gloria Lekiah Djima (2013)63GMJ 183CA. 25 Again, it was held in the case of Apea & Anor V Asamoah (2003-2004) 1 SCGLR 226 at 229 as follows: “Notwithstanding the rules on pleadings the law was that, where there was clear evidence of fraud on the face of the record, the Court would not ignoreit”. Therefore, if a party alleges fraud, at least there should be prima facie evidence on the face of the records to connect same. In the case of Nana Asumadu II (deceased) (substituted by Nana Darku Ampem (deceased) (substituted by Abusuapayin Amgo Mensah & Other v Agya Ameyaw, Civil Appeal No. J4/01/2018 delivered on the 15th of May 2019, Apau JSC delivering the unanimous judgment of the court defined fraud as “in law, fraud is a deliberate deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. It is both a civil wrong and a criminal wrong. Fraudbe it civil or criminal, hasoneconnotation. It connotes theintentional concealment ofanimportant fact uponwhich the victim is meant to rely, andin fact, does rely to the harm of the victim. It is therefore criminal in nature even where it is clothed in civil garbs…having pleaded fraud the law required plaintiffs to establish thatallegation clearly andconvincinglyandbeyond reasonabledoubt”. The plaintiffs pleaded fraudonthe part ofthe defendants.According tothe plaintiffs, the transfer of the 1st plaintiff’s interest in the disputed land to the defendants was clearly not their deed and without their knowledge and they have successfully provedsame with therequisite evidence onrecord beyond reasonable doubt. I therefore hold that the transfer of the 1st plaintiff’s interest in the land in question to the defendants is fraudulent as same was done without their knowledge and consent ofthe 1stplaintiff. Having considered the totality of the evidence on record and taking into cognizance the analysis, I find the case of the plaintiffs to be more probable than the case of the defendants herein. The plaintiffs have also established their claim of fraud per the requisite standard, beyondreasonable doubt. 26 Accordingly,judgmentis enteredfor theplaintiffs ontheir reliefs asfollows: Declaration of title to all that piece or parcel of land situate, lying and being at KwasiDoi near Nsawam in the Eastern Region of the Republic ofGhana, comprising approximate 130.37 acres and bounded on the side by Adisi Land, on the next side by Nana Obodan Stream, on the next side by Teacher Adjei land, Opanin Amoafo Land and Akua Ayebea Land and on the next side by Osae Yebio Land in favour of theplaintiffs. The Deed of Conveyance dated 7th February 2022 and made between Brook Cherith Properties Limited as vendor and Charlemagne as the purchaser is hereby declared null and void since same is tainted withfraud. The Deed of Conveyance dated 15th November 2021 and made between Brook Cherith Properties Limited as vendor and Dr, Susan E. as purchaser is declared null and void since same is tainted withfraud. The Lands Commission, Koforidua is hereby ordered to expunge the above transactions fromits recordsongroundsoffraud. The plaintiffs hereinareto recoverpossessionofthe described land. The defendants, their agents, servants, workmen, personal representatives and assigns are perpetually injuncted from doing anything whatsoever on the plaintiffs’ land. Generaldamagesfortrespass areassessed at Gh₡30,000.00 Cost follows the event and at the discretion of the court. The court exercises its discretion and orders cost of Gh₡ 20,000.00 against the defendants in favour of the plaintiffs. (SGD) H/HDIANA ADU-ANANE 27 CIRCUIT COURTJUDGE 28