IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2015
KWAME BAKALA - (Plaintiff)
ERIC AMOAH BAMPO AND GRACE BOATEMAA - (Defendants)
DATE: 19TH JANUARY, 2015
SUIT NO: INTS/15/13
JUDGES: HER LADYSHIP ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS: MR. F.K. BUOR FOR DEFENDANT
Kwame Bakala (the Defendant herein) obtained judgment against Eric Amoah Bampo in suit number RPC 146/2012, Commercial Court, Kumasi but he failed to satisfy the judgment debt. Consequently, a landed property numbered Plot PSU/BIX Suntreso; Kumasi was attached in execution of the judgment debt. Grace Boatemaa (the Plaintiff herein and mother of Eric Amoah Bampo) claimed an interest in the said property. This has brought about the instant interpleader proceedings.
The court heard the case summarily. The claimant was made the Plaintiff and the Execution Creditor, the Defendant. The issues for consideration are: (i) whether or not the trustees of the Calvary Revival Mission can deal with the Church’s property in any manner without recourse to the church (ii) whether or not the signatures on the Statutory Declaration and Power of Attorney attributed to the Plaintiff were forged and (iii) whether or not the Plaintiff has any interest in the disputed property.
This being a civil suit, the onus of proof lies first on the Plaintiff who has alleged that she has some interest in the property. The standard of proof, like in all land matters is very high. As far as the issue of forgery is concerned, proof must be to the standard required in criminal cases.
The Plaintiff’s evidence was rather terse. She testified that the property in dispute belongs to the Calvary Revival Church and she is a Religious Minister of that church. She added that all documents on the said property are in the name of the church and given time, she can obtain copies from the Lands Commission. This became unnecessary because the Defendant tendered in evidence a copy of the Lease which the Plaintiff would have obtained from the Lands Commision. It was her testimony that she travelled to seek medical treatment and on her return, it came to her notice that her son by name Eric Amoah Bampo who lived with her had used the title documents as a collateral security in respect of a loan. She told the court that her son did so without her consent and that she would discuss with her church members to assist her to pay off the loan. She did not tender any document in support of her case.
On the part of the defendant, he testified that Eric Amoah Bampo applied for a loan and it was a condition that a security be provided. According to him, Eric Amoah Bampo produced a lease of the property in dispute, a power of attorney from the Plaintiff herein as well as his own statutory declaration to the effect that the Plaintiff had consented to the use of the said property as security. In cross-examination, the Defendant told the court that they compared the Plaintiff’s signature with that on other documents brought to them and were convinced that it was authentic but they did not deal with the Plaintiff directly. Four documents were tendered in evidence by the Defendant. These are:
A statutory declaration made by Grace Boatemaa; (2) A power of Attorney executed by Grace Boatemaa; (3) A photocopy of an indenture in respect of the disputed property and (4) A statutory declaration made by Eric Amoah Bampo. The Plaintiff has denied executing exhibits 1 and 2 but admits signing exhibit 4 (the Lease).
There is evidence on record which point to the fact that the disputed property is being held in Trust for the Calvary Revival Mission, North Suntreso, Kumasi. First, the lease which is in evidence was executed by the Plaintiff and one Kwasi Asenso as Trustees of the Calvary Revival Mission. Second, there is a deposition in paragraph 3 of exhibit 1 that the Plaintiff is one of the Trustees to all that H/No. Block “E” Plot B1 X North Suntreso, Kumasi. These two documents were in the Defendant’s possession at all times material to this action. It was the Defendant who actually tendered them in evidence. The Defendant testified in the English Language which implies that he is literate in that language. Exhibits 1 and 2 were prepared in the English Language. When these documents were given to the Defendant by Eric Amoah Bampo, the Defendant ought to have done due diligence to ensure that the trustees mentioned therein were in fact acting within their powers. The evidence before me suggests that upon the presentation of these documents by the said Eric Amoah Bampo, the Defendant, based on visual inspection of the signatures, advanced a relatively colossal amount of money to him without investigating the root of title of the alleged owner of the property.
There is no evidence on record as regards the extent to which the beneficiary church permitted its trustees to deal with the property in issue. That notwithstanding, it is my considered opinion that the Trustees cannot legally convey the trust property or deal with it in a manner which is inconsistent with the objectives of the church or to the detriment of the church as has been done in this case. It is in this regard that the Defendant ought to have done due diligence to ascertain whether the trustees were acting legally. As the evidence stands now, the beneficiary church was never brought into the picture. There is unchallenged evidence on record that the Plaintiff is a prophetess of the Calvary Revival Mission and that she holds the property in trust for the said church. The Defendant has however failed to show that the legal and beneficial interest in the property is vested in the Plaintiff exclusively which may entitle her to deal with the property in any manner.
Did the Plaintiff actually execute exhibits 1 and 2? Following the Plaintiff’s evidence that those signatures are not her deed, the burden of persuasion now shifts to the Defendant who maintains that the signatures are that of the Plaintiff. By the Plaintiff’s denial, an allegation of the offence of forgery is being made. And, by section 13 (1) of the Evidence Act, NRCD 323, an allegation of fraud in a civil suit must be proved beyond reasonable doubt. The Supreme Court so held in the case of Fenuku v John Teye ( 2001-2002) SCGLR 985 at page 989 (holding 5) as follows:
“The law regarding proof of forgery or an allegation of a criminal act in a 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.”
The basis upon which the Defendant is alleging that the Plaintiff signed these documents is that he compared those signatures to her signature on the lease (exhibit 3) and he was convinced that the signatures were genuine. One way of proving a signature or writing is by the opinion of a hand writing expert. However, an expert who was tasked to give an opinion on these signatures could not come to court to tender his report because the parties were unable to pay for his travel expenses. In any case, expert evidence is in fact opinion evidence and the court is not bound by it. Thus, in the absence of the expert’s evidence, the court is still enjoined to examine all the evidence on record, make its findings and come to a conclusion.
There is no rule of law that evidence of handwriting can only be proved by a hand writing expert. In Quartey v King (1969) CC 122, CA it was held that handwriting can be proved by: (1) comparison with another specimen signature of the same person on another document; (ii) by calling the writer of the document or signature; or (iii) by calling a witness who saw the document written or signed. See also Conney v Bentum Williams (1984-86) GLR 301, CA.
Also, in Osei v The Republic (1976) 2 GLR 383, CA, the court expressed its view on disputed handwritings as follows:
“In jury trials a jury was not permitted to draw its own unaided conclusions from a comparison of handwriting because the guidance of an expert was a crucial requisite. However, when the opinion was that of the court itself judges might form their own opinion on disputed handwriting.”
In the instant case, the Plaintiff’s signature on the lease document has not been challenged and is deemed to be valid. I have had the opportunity to examine the signature attributed to the Plaintiff in exhibits 1, 2 and 3. Whereas the signatures on exhibits 1 and 2 have very similar identifying characteristics, that on exhibit 3 appears different. For instance, the characters in the name “Boatemaa” in exhibits 1 and 2 stand on their own except the “t” and “e” which are joined at a similar angle. The characters look very similar. However, in exhibit 3, the Characters “a, t, e, m, a, a” are all joined at different angles and they appear to be different from those in exhibits 1 and 2. It is obvious that the person who executed exhibit 3 did not execute exhibits 1 and 2.
On the issue of the authenticity of the Plaintiff’s signature, I also wish to comment on the signature attributed to her in the terms of settlement filed on 12/03/2014. It is on record that the Plaintiff denied signing these terms as a result of which the court refused to adopt the same as consent judgment. Upon a close scrutiny, I find that the signature attributed to the Plaintiff on the document filed on 12/03/2014 has very similar identifying characteristics with the signature of the Plaintiff on the lease document (exhibit 3). Having compared those signatures, it is highly probable that the Plaintiff signed those terms but lied on oath. In terms of section 80 of the Evidence Act, 1975, NRCD 323, the Plaintiff cannot pass the test of credibility. That notwithstanding, the Plaintiff holds the property in issue in Trust for the Calvary Revival Church by virtue of exhibit 3. Thus, any attempt to deal with this property in a manner inconsistent with the interest of the beneficiary Church is of no effect.
From the Defendant’s evidence, it was Eric Amoah Bampo who brought exhibits 1 and 2 to them. It is this same person who signed as the Plaintiff’s witness in exhibit 2. In addition, he executed exhibit 4. This is a statutory declaration and in paragraph’s 3, 4 and 6, he deposed as follows:
That, the house number PSU/BIX, located at North Suntreso Kumasi is the bona fide property of my mother Grace Boatemaa a.k.a. Grace Osei.
That, I have been given a power of attorney to use my mother’s lease of the above mentioned house as a collateral security for my purpose of securing a loan from any financial institution.
That I have therefore pledged my mother’s house /Lease as a collateral security for this purpose.
The above depositions cannot be true having regard to the totality of the evidence on record. Here is a case where an applicant was relying on a third party security and yet, the Creditor did not find it necessary to contact the said third party. On the evidence before me, Grace Boatemaa is only a trustee of the property. Therefore, any document which purports to indicate that it is her personal property is questionable and of no effect. Thus, the Defendant ought to have gone behind the scene to find out who the beneficial owners are but that due diligence was not done. I find that exhibits 1 and 2 were prepared to serve the interest of Eric Amoah Bampo and he is the only person who can tell the actual person who executed those documents. There is evidence on record beyond reasonable doubt which point to the fact that the Plaintiff did not execute exhibits 1 and 2 in person. The fact that she has on several occasions expressed her willingness to pay her son’s debt so as to save this trust property does not mean that she executed those documents. On the face of exhibit 3, the Lease was made in the late 1980’s. It will be wrong to hold that it was hurriedly made for the purpose of this interpleader suit. On the balance of probabilities, I accept the Plaintiff’s testimony that Eric Amoah Bampo used her name to prepare exhibits 1 and 2 without her knowledge. On the flip side, even if she had executed those documents, they cannot bind the beneficial owner on whose behalf she held the property in trust. The Plaintiff as a trustee has a duty to protect the trust property. The Defendant is to be blamed for his predicament. This mess could have been avoided but it appears to me that he was in so much hurry to grant the credit facility without recourse to due diligence. As it stands now, he can only enforce his judgment against Eric Amoah Bampo to recover his money. He cannot attach the property of Calvary Revival Mission which the Plaintiff is holding in Trust for the church.
In the circumstance, the Deputy Sheriff is to withdraw from possession of this trust property forthwith.
A word of caution to would be Lenders or creditors. It is indeed risky to rely on third party securities without the consent of the owner of the property in writing .It will be prudent to bring the 3rd party mortgagor into the picture by ensuring that he or she understands the processes. Besides, the owner must apply to the Lands Commission for consent to use the leased property as security or mortgage.
Relying on a mere statutory declaration as in the instant case to accept a 3rd party security is not a prudent thing do. It is so sad that the defendant has obtained judgment, has incurred expenses in the interpleader proceedings but is still unable to realize the fruits of his labour because of his failure to do due diligence had to be done. Heartrending as it may be, emotions can never be a substitute for the law.
Judgment is therefore entered for the Plaintiff. The conduct of the Plaintiff in this trial cannot be swept under the carpet. She failed to attend court on countless occasions even though hearing notices were duly served on her. She failed to pay her portion of the cost of forensic examination when she was the one disputing the signatures. By her undesirable conduct and unacceptable attitude towards the court, the Defendant has incurred so much avoidable expenses. In short, the Plaintiff does not deserve any cost from this court and so there is no order as to cost.