IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2018
MANSUA MANTE - (Plaintiff)
ELLEBAL LTD - (Defendant)
DATE: 16 TH MAY, 2018
SUIT NO: BMISC 955/2009
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
LAWYERS: GEORGE ESHUN FOR APPLICANTS PRESENT
There is an existing judgment delivered by G. N. Minta, Esq., Circuit Judge on the 4th day of October, 2004 over the res litiga being H/No D769/4. Okaishie. The judgment was as a result of a writ issued by the Defendant herein against Mante Saakwa Mante and Anor, in Suit No CCL 85/98 issued 20th May, 1998 a consolidated suit wherein the Defendant herein claimed the following endorsement on its writ as follows:
1. Declaration of title of all that property known as H/No D769/4 Okaishie, Accra.
2. An order for ejectment from and recovery of possession of the two door store rooms occupied by Defendant in the said H/No D769, Okaishie, Accra.
3. An order for payment of mesne profit
In the judgment referred to supra the learned Circuit Judge gave judgment in favour of the Defendant herein and decreed for the defendants to vacate H/No D769/4 Okaishie on or before January, 2005 and yield up vacant possession and an order made for the rent officer of the Rent Court to assess the rent to be paid. Appeal was subsequently filed and abandoned. No vacant possession had since been yielded and neither has rent been paid.
This has been mainly due to the writ issued by Plaintiff in 2009 claiming the following reliefs endorsed on its amended writ issued against the defendant:
a. A declaration that the judgment entered against the 2nd Defendant in Suit No CCL 85/98 (coram: G. N. Minte) at the Circuit Court, Accra is null and void by person [sic] that at the date of the issue of the writ of summons against the 2nd Defendant he had long died in 1975.
b. A further declaration that the Deed of Conveyance by which Ellebal Ltd claimed title to the property in dispute in Suit No CCL. 85/98, namely a two door store in H/No D769/4, Okaishie, Accra was tainted with fraud hence the judgment founded by its reliance on same is null and void
c. Further or other in respect of the said property as in circumstances may be fair and equitable including an order of perpetual injunction restraining the Defendant its servants, agents, privies whomsoever or otherwise howsoever from holding itself as the owner of H/No D769/4, Okaishie, Accra
d. Any further or others as the honourable court [sic].
Defendant has not only resisted the claim of the Plaintiff but has counter claimed for the following reliefs:
A declaration that the Defendant is the beneficial owner of the property known as H/No. D769/4, Okaishie, Accra.
A declaration that the Plaintiff or the estate of her late father has no legal or equitable interest in the said property known as H/No. D 769/4, Okaishie, Accra
A declaration that the judgment of August 4, 2004 by the Circuit Court was regularly obtained by the defendant and devoid of fraud.
A declaration that the suit no. CCL85/98 was instituted against the instant Plaintiff and not against a deceased person.
A declaration that the deed of conveyance dated June 17, 1991 and the Land Certificate issued on April 22, 2008 are not tainted with fraud. A declaration that the Plaintiff is estopped per rem judicatem and the instant action is fraudulent since the plaintiff is evading the consequences of the judgment of August 4, 2004 by altering her name.
An order empowering the Defendant to recover possession of the two door store in the property known as H/No. D769/4, Okaishie, Accra which is occupied by the Plaintiff and/or her assigns or representatives or persons deriving authority from her.
An order for the Rent Officer to assess the rent payable on the property known as H/No. D769/4,Okaishie, Accra occupied by the Plaintiff.
An order for the payment of rent accrued as assessed by the Rent Officer and interest thereon from the year 1998 to date of final payment.
Perpetual injunction restraining the plaintiff or any person deriving title under her from laying claim to the defendant ‘s property
Punitive costs against the plaintiff and
Any other relief as this court may deem fit to grant
In the statement of claim Plaintiff claim that she is a retired nurse with her late father Mante Saakwa Mante as the Managing Director of M. S. Mante & Co being the assignee of an unexpired residue of a lease of two door store. Plaintiff claim that the writ issued in the previous suit CCl 85/98 by Defendant was issued against her father who had long died in 1975. And having issued a writ against a dead person as second defendant, Defendant perpetuated fraud and used fraudulent conveyance and a land title certificate to obtain judgment.
Plaintiff proceed to particularize the fraud as follows:
a. The then Plaintiff who was a former tenant in the property in issue knew at the time of purporting to buy the reversionary interest from the executors of the late Emmanuel William Kwatei Quartey-Papafio that any such reversion laid in the three original deceased lessors of the property namely, Hughes Quartey Papafio, Emmanuel Edmund Bannerman and Emmanuel William Kwatei Quartey-Papafio who was himself the executor of the late Emmanuel Kwatei Kojo Quartey Papafio (deceased).
b. The Deed of conveyance dated June 1991 and made between he executors/trustees of the Emmanuel William Kwatei Quartey-Papafio(decd) on the one part and the then Plaintiff though cited in the recitals that the property in question was originally demised to one Fouad Zagloul it wilfully failed to disclose on its face the names of the lessors namely Hughes Quartey Papafio, Emmanule Edmund Bannerman and Emmanuel William Kwatei Quartey-Papafio
c. The Plaintiff wilfully painted a false picture for it to appear as if the property belonged solely to Emmanuel William Quartey-Papafio (decd) and for that matter any reversion to the deceased or his executor Emmanuel Kwatei Kojo Quartey Papafio
d. Defendant therefore fraudulently procured the deed of conveyance which it claimed as its source of capacity
e. That the then Plaintiff fraudulently issued the writ of summons against 2nd Defendant, the Mante Saaka Mante in 1998 and obtained judgment against him 2004 and when he was long deceased in 1975.
DEFENDANT’S STATEMENT OF DEFENCE
Defendant in a twenty six paragraph statement of defence deny the claim of the judgment it obtained as tainted by fraud. Defendant maintains that it commenced CCL85/98 against the instant Plaintiff and not her father, which action was consolidated with another suit against a company by name Continental Trading Ltd. That the judgment obtained was against Plaintiff, who as Defendant entered appearance, filed a defence and contested the action, testified as Mante Saakwa Mante. Defendant on the other hand accused Plaintiff of fraudulent conduct and also particularize the fraud against Plaintiff as follows:
a. suit to pull wool over the eyes of the court with the sole purpose of defeating the ends of justice.
As the same person in Suit No CCL85/98, the Plaintiff is using a different name in the instant by testifying as a witness until the Circuit Court entered judgment against her as 1st defendant.
b. Suit No CCL85/98 was instituted against Plaintiff and not a deceased person wherein the Plaintiff appeared as Mante Saakwa Mante and never protested that she had been sued in the wrong name.
c. The Plaintiff defended the said Suit CCL85/98 as the occupant of the subject matter in dispute
d. In the evidence of the Plaintiff in Suit CCL85/98, the Plaintiff stated in clear terms that the name of her father is Doku Saakwa Mante and not Mante Saakwa Mante.
Defendant further contend that the deed of conveyance obtained gave him an infeasible title to the property and there was nothing fraudulent regarding the acquisition of the title to the property. Defendant has further pleaded estoppel per rem judicatam that Plaintiff is seeking to re-litigate the very matters that were the subject matter of the Suit CCL85/98. To Defendant having failed to appeal against the judgment, plaintiff chose not to comply with the judgment and has remained in possession without paying rent to the Defendant. And accordingly seek an order for the payment of accrued rent.
The following issues were set down as the issues for determination:
Whether or not the plaintiff was the first defendant in the consolidated suit nos. CCL85/98 and CC473/2000 Whether or not suit no. CCL85/98 was instituted against the plaintiff or her alleged deceased father Whether or not the plaintiff is engaged in a fraudulent conduct to deceive the court
Whether or not the deed of conveyance dated June 17, 1991 and the Land Certificate as the defendant’s root of title were fraudulent
Whether or not the plaintiff is estopped per rem judicatem from re-relitigating the issues raised in this case
Whether or not the defendant is entitled to its counterclaim
Whether or not the plaintiff is entitled to her claims
Any other issue that may arise from the pleadings
Additional issues were filed on behalf of the plaintiff as follows:
Whether or not judgement was entered against 2nd Defendant in suit no. CCL. 85/98, Circuit Court, Accra which 2nd defendant has long died in 1975
Whether or not at the date of issue of the Writ of summons again 2nd defendant in suit no. CCL85/9, Circuit Court, Accra 2nd defendant had long died in 1975
Whether defendant as plaintiff in suit no. CCL 85/98 perpetuated the fraud particularized in paragraph 7 of the statement of claim