Judge K. Acquaye's Ruling on Obenewaa's Land Case

The Superior Court of Judicature in the High Court 8

Accra held on Thursday, the 20th day of December 2007

Before his Lordship Justice K.A. Acquaye

Suit No. BL 637/2003/2004

Plaintiff Absent

Defendant Represented by Obeng

Mr. Nutifafa Nutsukpui for the Defendant Present

Mr. Quist for the Plaintiff Absent

The plaintiff claim is for

1. A declaration of the title to a piece or parcel of land situated at Dome, Accra concession and

bounded on the North -West by a proposed road measuring 70 feet, on the North- East by

Vendor’s land measuring 160 feet, on the South-East by Vendors land measuring 70 feet ,on the

South-west by vendors land measuring 160 ft covering an approximate area of 0.25 acre more

particularly delineated on an indenture and thereon edged pink.

2. Recovery of possession.

3. Damages for trespass.

4. Perpetual injunction restraining the defendant from further acts of trespass.

The plaintiff stated in his writ of summons that he acquired the land from one Emmanuel Roger

Amudzi in the year 2004 and an indenture was executed on 9th June 2004. The plaintiff stated

that a search conducted at the Lands Commission revealed that the land had been leased to the

said Emmanuel Roger Amudzi by the Reindorf family on the 24th august 1995. The plaintiff

pleaded that he went into possession, registered his document as No. AR/4483/2004 and

started constructing a house. The plaintiff's complained that the defendant trespassed into the

land and stopped plaintiffs workmen and agents from working on the land when the building

had reached window level. According to the plaintiff he reported the matter to the police

Striking Force in Accra. The plaintiff stated that since his workers were stopped thieves have

stolen Wawa boards worth 3,500,000 Cedis and PVC pipes worth 1,500,000 Cedis his workers

were using from the site. The plaintiff pleaded that the defendant has not been able to produce

any documents showing her interest hence his claims.

In her statement of defence the defendant denied that the plaintiff is the owner of the land and

put the plaintiff to strict proof. The defendant pleaded that she negotiated with the Raindrop

family led by Carl Reindorf in 2003, purchased the plot and was issued with the indenture

which was being registered at the Lands Commission as No. AR/4647/2003. The defendant

pleaded that she took possession of the land when it was bare and virgin and dug and

constructed a foundation to commence building. When she visited the land she saw that the

plaintiff had trespassed unto her land and demolished her foundation. Her enquiries revealed

that one Mr. Emmanuel Amudzi had forged the signature of Carl Reindorf and fraudulently

registered these documents at the Lands Commission.

The defendant pleaded that her grantor wrote to the Lands Commission complaining about the fraud and asking for the cancellation of Roger Amudzi's documents. The defendant stated that the said Emmanuel Amudzi spurned the invitation of the Lands Commission to discuss the matter hence they later wrote to the plaintiff notifying him that the commission was going to expunge his transaction from the records . The defendant pleaded that the plaintiff is well aware of the fraud perpetrated by his grantor yet decided to take the risk in developing the land. The defendant particularized the forgery of Emmanuel Amudzi's as forging the signature of the legal owner of the land and succeeding to register same hence the document is a nullity and transfers no interest to the plaintiff. The defendant contended that at the time she stopped the plaintiff's workers, the plaintiff’s building was at the foundation level and he was aware of his grantors fraud yet he continued to build. The

defendant pleaded that the documents she was given was being processed at the Lands Commission who were using same for the forensic purposes in respect of the forged signature

of Mr. Carl Reindorf by Emmanuel Amudzi.

The defendant counterclaimed for.

1. Declaration of the title to the land more or less described by the plaintiff which properly measures 0.28 acres.

2. General damages for trespass.

3. Recovery of possession.

4. Perpetual injunction.

5. Costs.

6. The sum of 25,000,000 being the cost incurred by the defendant in constructing the foundation

which was illegally destroyed by the plaintiff.

The plaintiff jounced issues with the defendant and pleaded that the letter from the Lands Commission got to him late and since the matter was then in court any decision by the Lands Commission would be of no effect. The plaintiff denied being aware of the

defendant's interest at the time he purchased the land and pleaded that he is a bonafide purchaser of a legal estate for the value without notice of any encumberance. The issue set down for the determinations are:

(a) Whether or not the plaintiff is the bonifide owner of the plot of land the subject matter of

dispute, (b) Whether or not the defendant had trespassed on the plaintiff's land,

(c) Whether or not the plaintiff's vendor acquired his documents fraudulently.

(d) Whether or not plaintiff is entitled to his claim, (e) Whether or not defendant is entitled to her counterclaim.

The following additional issue was set down for hearing that a forensic expert be appointed to examine and report on all relevant documents in connection with the case and in respect of the allegation of forgery.

The Chief Superintended in-charge of the Forensic Laboratory in Accra was called as CW1. He testified hat he examined the various signatures of Carl Reindorf submitted to him but the signature on Exhibit A, the indenture made between Carl Reindorf and Emmanuel Amudzi was not that of Carl Reindorf.

The witness testimony was not shaken under the cross-examination. The defendant also tendered in evidence a letter written by Carl Reindorf to the Lands Commission in which he denied signing the plaintiff's grantor’s indenture . I accept this piece of evidence and find that Carl Reindorf's signature on Amudzi's indenture Exhibit "A" was forged.

The real issue for determination in this case is which of the two parties has a better title to the plot of land in dispute. The plaintiff testified that he bought the land from Emmanuel Amudzi and tendered in evidence a document dated 9th June 2004. He testified that before he bought the land he conducted a search at the Lands Commission which showed that the land was registered in the name of his grantor and subsequently proceeded to register his deed. DW1, the Regional Lands officer confirmed that the Land was registered in the name of Emmanuel Roger Amudzi on the 3rd December 2003. The defendant testified that she bought the same land from lawyer Aboagye and the Reindorf family prepared a document which was registered in 2005. DW1 again testified that the defendant's document would not be registered because at the time she presented same the land was already registered in the name of Roger Amudzi. Had the defendant a search a time she bought the land she would have noticed that the land had been registered in the name of Emmanuel Roger Amudzi and been put on her enquiry.

It was submitted for the defendant that the plaintiff was not candid with the court when he testified that he conducted a search before buying the land which he registered immediately. The receipt attached to the plaintiff's search is dated 3rd August 2004 whiles his Indenture dated 9th June 2004 was submitted to the Lands commission on the 16th June 2004. Even though

the search was made after the purchase of the fact still remains that at the time plaintiff purchased

the land the grantor Emmanuel Roger Amudzi had registered his fraudulent title deed dated 24th

August 1995 on the 23rd December 2003.

The defendant testified that she bought the land from Lawyer Aboagye and the Reindorf family prepared an Indenture for her on the 26th June 2003 as testified to the defendant and DW1, her document could not be registered because when she presented them Emanuel Roger Amudzi's had already been registered which paved the way for the plaintiff's documents. The question which arise for determination is as between the parties whose document is prior Section 24 of the Lands

Registry Act 112/62 provides that an instrument other that a will or judges certificate first executed

after the commencement of the Act shall be of no effect until it is registered. The plaintiff's

document was first registered so it takes priority over the defendant.

It was argued for the defendant that plaintiff's vendors' title was obtained by fraud and if fraud be established by the court will set aside all transactions founded upon it by whatever machinery

they may have been effected on the authority of Dzotepe vs. Hahomene iii (1987-88) GLR 681 at 695.

The above principle is good law but it remains effective between the defendant and Emmanuel Roger Amudzi. As soon as an innocent third party acquires right under the fraudulent indenture which is registered the Purchaser becomes an innocent purchaser of a legal Estate for value without notice of fraud and must be protected. It was argued for the defendant that the plaintiff knew at the time he was registering his documents that there was a rival claim to title so he could not claim to be an innocent purchaser. The relevant time for the operation of the doctrine of Innocent Purchaser is the time of purchase and not subsequently. See Megarry and Wade on the Law of Real

Property 5th Edition Page 142.

From the evidence I find that the time of purchase the plaintiff was not aware of his grantor's fraud and is an innocent purchaser. From the foregoing I find that the plaintiff is entitled to his claims. I enter judgement in favour of the plaintiff and

(1) Declare the plaintiff's title to all that piece or parcel of land situated at Dome- Accra concession bounded on the North -West by proposed road measuring 70 ft on the South-West by the vendors land measuring 160 ft covering an approximate are of 0.25 acres .

(2). As the plaintiff has always been in possession of same I make no order or recovery of possession

(3). I award the plaintiff two million Cedis general damages for trespass

(4). I order perpetual injunction against the defendant, her servants and agents from further acts

of trespass. I award the plaintiff cost of five million Cedis.