IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
EMMANUEL OFORI & ORS - (Plaintiffs/ Respondents)
EMMA OKWESI - (Defendants/Appellants)
DATE: 26TH OCTOBER, 2017
CIVIL APPEAL NO: H1/88/2017
JUDGES: ACQUAYE J.A (PRESIDING), DZAMEFE J.A, M. AGYEMANG (MRS.) J.A
NANA AMA PANYIN AMOAH FOR APPELLANT
MR. ISAAC AIDOO FOR RESPONDENTS
The plaintiff/respondent hereinafter referred to as the plaintiff issued this writ against the defendant/appellant for the following reliefs:
An order that the disputed land described in paragraph 6 of the statement of claim belongs to the late Samuel Henry Obido and his sister the late Elizabeth Chardey Yartey.
Recovery of possession.
Damages for trespass.
Perpetual injunction to restrain the defendant or her agents and assigns from interfering with the disputed land.
An order to cancel the Land Title Certificate No. GA 16774 Folio 502 Vol.12 purported to have been issued to the defendant.
The 1st plaintiff’s is the Administrator of the Estate of the late Samuel Henry Obido Ofori while the 2nd plaintiff is the 6th born of the deceased.
The plaintiffs described the defendant as a trespasser on the plaintiff’s family land at Adzoate Street near Asanka Local Osu, belonging to their grandfather Rudolf Nelson Ofori Cofie. The plaintiffs case is that their grandfather acquired the land from the Osu Alata Stool represented by Nii Kwabena
Bonne of Osu Alata Mantse per grant dated 26th day of August 1948 and Registered at the Deeds Registry as No.903/1948 with the necessary description of same.
The plaintiffs aver further that on the death of their grandfather, Samuel Henry Obido Ofori was granted the Letters of Administration (LA) and he vested the property in himself on 5th February 1975 and registered same as No.1750/1975. In 1976 another conveyance was made between Samuel H. O. Ofori and his sister Elizabeth Chardey Yartey dated 4th June 1976 and registered as No.2216/76.
In 1978, the then head of the Cofie family of Osu, William Tetey Ayeetey made a Statutory Declaration vesting the disputed land in Samuel H. O. Ofori and his sister Elisabeth Chardy Yartey which was registered at the Deeds Registry as No.4652/1978. Again in 1979 another document was prepared and registered as No.1855/1979 partitioning the land between Samuel H. O. Ofori and his sister Elizabeth C. Yartey. They both died in 1981 and 2002 respectively.
It is the plaintiffs case that in June 2011, they saw some people constructing a fence wall on the land and putting an iron gate. When they challenged them they claimed they had bought the land and had a court judgment in respect of the land. They also claimed they have a Land Title Certificate covering the land. The plaintiffs aver their late father and sister never sold the land before their death hence this suit.
The defendant in his amended statement of defence dated 5th June 2015 avered that she acquired the disputed land from Elizabeth Chardy Yartey through an agent one Mr. Ernest Debrah. The defendant avered at the time of the acquisition Elizabeth Yartey’s title over the land was evidenced by Land
Certificate No. GA 14548 registered on 17th March 1999. The defendant averred further that she went into possession after the acquisition until one E. O. Adjetey (Emmanuel Okine Adjetey) trespassed unto same and he issued a writ against him at the High Court (Land Division) Suit No. BL 211/05 and had judgment in her favour. She said E. O. Adjetey in his defence averred he acquired the land from Elizabeth Chardy Yartey E. O. Adjetey went on appeal but lost same before the Court of Appeal.
It is the defendants’ case that the plaintiffs and members of the family participated in the High Court suit as witnesses to E. O. Adjetey and are therefore estopped per rem judicata from bringing this action. He claims the plaintiffs knew of the suit, watched her fought it alone and commenced development of same in good faith and so are estopped by acquiescence and laches from now laying claim to the land.
Defendant says further that even if the vendor had no title to the disputed land, which is denied, she is an innocent purchaser for value without notice and her title is indefeasible by reason of the Land Title Registration Act 1985 [PNDCL 152]. The defendant also doubted the alleged date of death of Samuel Henry Obido Ofori as stated by the plaintiffs in their statement of claim.
The defendant says that prior to the commencement of this action, she transferred her title in the disputed land to one Theresa Dedei Quaye who was issued with Land Certificate No. GA 36239 Vol. 12 Folio 502.
Issues to be tried
Whether or not the disputed land is for Henry Obido Ofori aka Samuel Henry Ofori and the sister Elizabeth Chardey Yartey.
Whether or not Henry Obido Ofori or Elizabeth Chardey Yartey sold the disputed land to the defendant.
Whether or not the land was fraudulently sold to the defendant using the names of Obido and Elizabeth.
Whether or not the plaintiffs are stopped from brining this action.
Whether or not the plaintiffs are entitled to their claims.
Any other issues raised by the pleadings.
Whether or not the plaintiffs have capacity to bring this action.
Whether or not prior to the acquisition of the disputed land the same was registered in the name of Elizabeth Chardey Yartey as absolute owner thereof.
Whether or not the 1st plaintiff and her Aunt, Mary Chardey Yartey knew about suit No. BL 211/2005 filed by the defendant against E. O. Adjetey but they failed to join same to protect whatever interest they claim they have in the land the subject-matter of that suit.
Whether or not in the suit aforementioned, the 1st plaintiff and Mary Chardey Yartey testified for E.
O. Adjetey to the effect that the disputed land had been sold to him.
Whether or not the plaintiffs action is res judicata.
The plaintiffs in their reply to the statement of defence alleged fraud and same particularized.
The trial judge in her judgment found as a fact that the plaintiffs have capacity to institute this action. The court found as a fact that the plaintiffs’ by their registered instruments have discharged the burden of proof and persuasion. The tendering of exhibits ‘C’, ‘D’ and ‘E’ constitute sufficient evidence that their father Henry Obido Ofori and his sister Elizabeth Yartey are the owners of the land in dispute. [page 295 ROA].
The court also found as a fact that the allege sale of the disputed land to the defendant and E. O. Adejety in suit No. BL/211/09 was done after the death of Samuel Henry Obido Ofori “This means that someone else purported to sign plaintiff’s father’s signature which amounts to nothing less than fraud” delivered the judge.
The court found that Henry Samuel Ofori did not sell the land in dispute to the defendant, it was rather plaintiff’s uncle Godfred Nii Boye who impersonated plaintiffs’ father and signed the documents on his behalf. That Godfred Nii Boye who facilitated the sale to the defendant’s agent Ernest Debrah knew or ought to have known that plaintiffs father Henry O. Ofori was deceased and that constituted fraud. Nii Boye and Mary Ofori also knew the land was partitioned between Henry Ofori and Elizabeth Yartey. [page 300 ROA]
The court held that Nii Boye and his accomplice Mary Ofori forged the signature of Henry Obido Ofori and any transfers emanating from those fraudulent documents cannot stand since they are tainted with fraud and this vitiates everything. That the plaintiffs had no hand in the sale [page 302 ROA].
The court delivered itself thus “I therefore hold that the land, the subject matter in dispute, was fraudulently sold to the defendant through her agent. From my analysis alone there is proof beyond reasonable doubt that the basis for issuing Elizabeth Chardy Yartey with land Certificate No.16774 was fraudulent ….” [page 302 ROA]
It is the view of the trial court that the physical condition of Elizabeth Yartey would not enable her sign any document transferring any interest in the land in dispute to the defendant. To the extent that she did not sign any documents nor sold any land to the defendant, the land in dispute was fraudulently sold to defendant and the purported sale be set aside [page 303 ROA].
The court also dismissed the defendants claim that the plaintiffs were caught by laches and acquiescence saying the plaintiffs did not sleep on their rights when they got notice of the fraud for they tried and managed to trace the defendant [page 304 ROA].
The court also dismissed the defendant’s plea of res judicata against the plaintiffs explaining plaintiffs were not party to their suit neither were they privies to the parties to the suit and had no knowledge of the issues at stake. [page 305 ROA]
The court also held as null and void the allege transfer of the land in dispute by the defendant to one Theresa Dedei Quaye since she failed to discharge the burden to prove she genuinely transferred the land before the commencement of this action. [page 306 ROA]
Based on all the evidence before the High Court and on the preponderance of probabilities the court held that plaintiffs have proved their claim and are entitled to their reliefs endorsed on the writ of summons and entered judgment in their favour. The defendants dissatisfied with the judgment filed this appeal on the following grounds:
The learned trial judge erred by holding that both plaintiffs have the capacity to institute the action in the court below.
The learned trial judge erred by holding that the defendant/appellant filed to prove that she genuinely transferred here interest in the land in dispute before the action commenced.
The learned trial judge erred by ordering the cancellation of Land Certificate No. GA 36239 in Land Register Volume 12 folio 5502 in the name of Theresa Dedei Quaye.
The learned trial judge erred by relying on the evidence of Mary Chardey Ofori in Suit No.
BL/211/05 in drawing her conclusion in the action giving rise to this appeal.
The learned trial judge erred by holding that the Land Registrar committed an error on the face of the record when Land Certificate No. GA 14548 was issued solely in the name of Elizabeth Chardey Yartey.
The learned trial judge erred by holding that the Land Certificate No. GA 14548 standing in the name of Elizabeth Chardey Yartey was procured by fraud.
The learned trial judge erred by failing to hold that the defendant/appellant was an innocent purchaser for value without notice.
The learned trial judge erred by holding that the land in dispute was fraudulently sold to the defendant/appellant.
The learned trial judge erred by holding that the plaintiffs were not estopped by laches and acquiescence in bringing their action.
The learned trial judge erred by ordering the cancellation of Land Certificate No.GA 14548.
The learned trial judge erred by failing to hold that the plaintiff’s’ action was res judicata.
The judgment is against the weight of the evidence on record.
1. An order setting aside the judgment of the court below and entering judgment for the appellant.
2. A reversal of the orders made by the court below directed at the Land Registration Division of the Lands Commission to correct the register.
“capacity of the plaintiffs to institute this action.”
Counsel for the appellants submits that the issue of capacity should have been resolved before determining the suit on its merits – Asante Appiah vrs. Amponsa @ Mensah  SCGLR 90.
It is his argument that since the plaintiffs by their own case said the land in dispute belongs to Samuel Henry Obidi and his other sister Elizabeth Chardy Yartey, it is his opinion the trial Judge was wrong when she held that the land was family property which could be sued for by any member of the family if the Head of Family is not taking action to protect it. In so doing, counsel opined, the court had accepted a case contrary to or inconsistent with what the respondents themselves put forth and that has always been frowned upon by the courts – National Labour Commission vrs. Ghana Telecom Ltd.  1 SCGLR 342.
It is his submission that since the court rejected the purported power of attorney granted by the administratrix of the estate of Elizabeth Chardy Yartey, the 2nd plaintiff had no capacity thereon to institute this action as a plaintiff. That the trial court erred in holding that the 2nd plaintiff had capacity to institute this action.
Counsel argued that the Letters of Administration granted by the court in reference to the late Samuel Henry Obidi mentioned one Jacob Quarshie Ayettey and Emmanuel Ofori, as cousin and father respectively of the intestate. This means Emmanuel Ofori is the father of the deceased Samuel Henry Obidi Ofori. However, in the writ, Emmanuel Ofori was described as the son of the deceased Samuel Henry Obidi Ofori. It is his submission that being the case, 1st plaintiff does not have the capacity to institute this case since the administrator was the father and not the son of the deceased.
Counsel went further that assuming its even true that the 1st plaintiff is one of the joint administrators of the estate, then both have to institute this action together unless there is good reason canvassed why joint administrators cannot jointly sue. Counsel referred us to the case of In Re Bill (Decd’): Abeka vrs. Tetterley Bill & Ors. [2007/8] SCGLR 66 H2 at p67 where the authorities held that joint administrators have a joint right in the estate they administer jointly and must sue jointly.
Counsel for the respondents in his submission on this ground of appeal said the respondents have capacity. He submitted “plaintiffs had capacity in that the 1st plaintiff held the power of attorney of his late dad. Though 2nd plaintiff’s power of attorney was rejected, the daughter of Elizabeth Chardy Yartey testified and confirmed that her mother never sold any land. 1st appellant is the son of Henry Obido Ofori and that is not disputed. The other administrator is dead. He is not being substituted and therefore Emmanuel Ofori is the sole administrator. The daughter of Elizabeth Chardy Yartey was not well hence the Power of attorney to the 2nd plaintiff.”
The trial judge in her judgment said “I find that plaintiffs father died on 1st August, 1981. I will accept Exhibit ‘B’ as coming from lawful custody and hold that plaintiffs have capacity to institute this action” – page
She goes on “Doris Adoley Allotey is the duly appointed administrator of her late mother’s estate, however, since the power of attorney given plaintiff was rejected, I find the plaintiff does not have capacity to represent PW1 in this case”.
The law is crystal clear that if any person who brings an action in a capacity, he does not have makes the writ a nullity and so are the proceedings and the judgment founded on it –Rep. vrs. High Court, Accra Exp. Aryetey [2003/4] SCGLR 398. See also Yorkwa vrs. Duah [1992/3] GBR 278
When plaintiff sues in a representative capacity like in the instant appeal, but at the date of issue of the writ, he is not clothed with such capacity, the writ of summons and the statement of claim are null and void and incurably bad and it is immaterial that later during the course of the proceedings, he acquired the capacity. Such, plaintiff cannot also be allowed a hearing on the merits because he had a cast-iron case against the opponent. Any challenge to capacity puts the validity of a writ in issue and is not concerned with the merits.
From the judgment before us, there is no dispute between the parties that the land in dispute belongs to Samuel Obido Henry Ofori and Elizabeth Chardy Yartey. Both children of the deceased Nelson Cofie. The partitioning was documented and exhibited as Exhibit ‘D’. The land in issue therefore becomes the personal properties of the two deceased children of Nelson Cofie and therefore no longer family property. Both of them died intestate and Letters of Administration granted administrators to administer their various estates respectively. In that case, it is their administrators who have power institute any action for their properties.
The trial court relied on Exhibit ‘B’ to grant the issue of capacity. Exhibit ‘B’ granted Letters of Administration to Jacob Quarshie Ayettey and Emmanuel Ofori as cousin and father of the intestate respectively (pg. 321 ROA). Emmanuel Ofori’s name was not typewritten but inserted with a pen. Samuel Ofori and his description as father were both handwritten and initialed. If it is this Emmanuel
Ofori who instituted this action as 1st appellant, the question that beats our imagination is whether he (1st plaintiff) is the father of the deceased Samuel Henry Obido Ofori as the exhibits depicts.
According to the 2nd plaintiff in his testimony, 1st plaintiff is the senior brother from the same father, Samuel Henry Obido Ofori (deceased) but different mothers. Pg. 138 ROA. This is inconsistent with the contents of Exhibit ‘B’, the Letters of Administration granted them, which described them as cousin and father. We wonder why this conflict in the description of the parties in the appeal. While the Letters of Administration said Emmanuel Ofori (1st plaintiff) is the father of Samuel H. O. Ofori, 2nd plaintiff described him as his senior brother, a son of the deceased Samuel H. O. Ofori.
This court is one of records and from the evidence before us, 1st plaintiff is never the father of the deceased Samuel H. Ofori and therefore not the one granted the Letters of Administration to administer Samuel H. O. Ofori’s estate. In that case, we find that the 1st plaintiff has not got the capacity to institute this action.
We also disagree with the trial court in her holding that Exhibit ‘B’ clothed 2nd plaintiff with capacity to institute this action. We think she erred in coming to that conclusion.
The trial court in its own judgment held the 2nd plaintiff had no capacity since his power of attorney was rejected. Once the power of attorney was rejected by the court, from that point the 2nd plaintiff ceases to be a plaintiff in the case. We wonder why the trial court allowed him to prosecute the case to the end of the trial with no capacity. The trial court erred in allowing him to be the 2nd plaintiff till the end of the trial. Whatever he did was a nullity so far as the case is concerned.
See Asante Appiah vrs Amponsah @ Mensah (supra) where the Supreme Court held “where the capacity of person to sue is challenged, he has to establish it before the case can be heard on its merits. In the instant case, the defendant challenged the capacity of the plaintiff from the inception of the trial. The challenge was explicit in the first paragraph of the statement of defense and in the cross-examination of the person who gave evidence on his behalf as holder of power of attorney which has been declared invalid and inadmissible. The plaintiff had to establish his capacity before he could expect the trial court to have considered the case on its merit. He woefully failed to establish the capacity in which he sued by his reliance on the invalid power of attorney”.
In totality therefore, both plaintiffs lacked capacity to institute this action and same becomes null and void by the authorities earlier quoted.
This court is a court of records and from the Exhibits before us, especially Exhibit ‘B’, the 1st plaintiff cannot be the one granted the Letters of Administration since he is not the father of the deceased.
We therefore set aside the proceedings and judgment of the trial court as null and void and uphold the appeal.
The appeal is successful.