APPOLO CINEMAS & ESTATES (GH) LTD vs. CHIEF LAND TITLE REGISTRAR AND ANOTHER [2001-2002] 1 GLR 19

CASES REFERRED TO:

(1) Lewis v Green [1905] 2 Ch 340.

(2) Korblah II alias Tetteh v Odartei III [1980] GLR 932, CA.

(3) Akrashi II v Ofori Atta [1961] GLR 434.

(4) Badu-Anum v Badu-Anum [1998-99] SCGLR 845.

(5) Punton v Ministry of Pensions and National Insurance [1963] 1 All ER 275, CA.

(6) Deadman (Decd), In re; Smith v Garland [1971] 2 All ER 101.

PRELIMINARY OBJECTION by the co-defendant to the commencement of proceedings by the plaintiff by an originating summons of his application for the cancellation of her land title certificate on the ground of fraud. The facts are sufficiently stated in the ruling of the court.

E O Ohene for the plaintiff.

Barbara Ward-Acquah (Mrs), Principal State Attorney, for the defendant.

Appau J. The plaintiff initiated this originating summons proceedings against the respondent viz, the Chief Land Title Registrar seeking the cancellation of a land title certificate No GA 11157 standing in the name of one Habiba Omar Captan, the co-defendant in this case, on the ground that same was obtained through fraudulent misrepresentation. The respondent, through whose correspondence the plaintiff came to the conclusion that the said certificate

[p.21] of [2001-2002] 1 GLR 19 was obtained by fraud, reacted to the summons by filing a statement of defence instead of an affidavit on 17 July 2000, after having entered appearance on 19 February 2000, admitting the plaintiff’s claim that the said certificate was obtained through fraudulent misrepresentation on the part of the certificate holder.

After realising that they should have filed an affidavit instead of a statement of defence, the defendant later filed an affidavit in opposition to the originating summons on 19 July 2000 withdrawing the earlier statement of defence filed. In the affidavit, the defendant did not deny the claim by the plaintiff that the certificate which was in issue was wrongly obtained but only contended that the plaintiff should have sought for an order of mandamus or prohibition to mandate them to cancel the said certificate instead of resorting to an originating summons which is not the appropriate remedy.

The court overruled the defendants in their objection to the procedure adopted by the plaintiff and ruled that there was nothing wrong with the action as it centred on the interpretation of an Act; to wit, section 131 of the Land Title Registration Law, 1986 (PNDCL 152).

It is trite law that proceedings suitable for commencement by originating summons are where the principal question is the construction of an Act, statutory instrument, deed, will, contract or other document or some other question of law and where there is unlikely to be any substantial dispute of fact: th see Osburn’s Concise Law Dictionary (8 ed) by Leslie Rutherford & Sheila Bone at p 238 and then Order 54A, rr 1 and 2 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) and Order 5, r 4 of the Supreme Court Practice, 1993, Vol 1.

Before the court could order the cancellation of the said certificate as the defendant had not denied the facts deposed to in the affidavit supporting the originating summons, the co-defendant applied to be joined in the suit as she was the holder of the certificate which the plaintiff was seeking to have cancelled from the Land Title Register and therefore an interested party.

The court found it necessary to join the co-defendant in the suit as her interest was at stake. This development changed the cause of action altogether as the co-defendant challenged the charge of fraud

[p.22] of [2001-2002] 1 GLR 19 levelled against her by the defendant and for which plaintiff sought for the cancellation of the said certificate. In view of this trend of affairs, counsel for the co-defendant raised a legal objection to the determination of the issues at stake by originating summons and contended that since fraud has become a crucial issue in the determination of the issue itself, originating summons was not a proper procedure and that the plaintiff should be made to commence his action by a writ so that the question of fraud could be properly gone into as it would not be appropriate to do so by affidavit evidence.

The crux of the arguments advanced by learned counsel for the co-defendant was that since there is an allegation of fraud made by the plaintiff against the co-defendant, originating summons was not the appropriate remedy or process as fraud could not be determined on affidavit evidence but by oral evidence. Counsel therefore prayed that the present action be dismissed for the plaintiff to initiate the action by an ordinary writ. Counsel cited the cases of Lewis v Green [1905] 2 Ch 340; Korblah II alias Tetteh v Odartei III [1980] GLR 932, CA; Akrashi II v Ofori Atta [1961] GLR 434 and more importantly, Badu-Anum v Badu-Anum [1998-99] SCGLR 845 in support of his contention.

Replying, counsel for the plaintiff held a contrary view and said under the special circumstances in this case, originating summons was the appropriate procedure. According to counsel, the action was originally initiated against the defendant alone, ie the Chief Land Title Registrar and that between the plaintiff and the defendant there was no dispute of fact as to how the co-defendant came to possess the certificate, thus the resort to originating summons proceeding. Counsel argued further that the defendant did make a definite finding of fraud on the part of the co-defendant in acquiring the said certificate, so it is not a new issue to be determined. Counsel referred to the affidavit in opposition filed by the defendant and then exhibit F attached to the originating summons in support of his claim. Counsel contended further that the use of originating summons does not preclude the court from calling further evidence (oral or otherwise) if the court finds it necessary to resolve facts in issue. Counsel was therefore of the view that assuming the court was in

[p.23] of [2001-2002] 1 GLR 19 doubt as to certain facts pertaining to the fraud allegation, the court can, nevertheless, call evidence to ascertain the issue at stake instead of wholly dismissing the action only for the plaintiff to reinstitute same by an ordinary writ. Counsel cited the Annual Practice, 1988, Vol 19, p 468, para 2814 (2) and (3) and then the case of Punton v Ministry of Pensions and National Insurance [1963] 1 All ER 275, CA in support and prayed the court not to sustain the objection by the co-defendant’s counsel.

The main issue to be considered by the court in this preliminary matter is whether or not in the special circumstances of this case, the appropriate procedure to have been adopted was an originating summons and if the answer is in the negative, whether or not the action should be wholly dismissed for this reason. As has already been stated elsewhere in this ruling, the original action was against the Chief Land Title Registrar for the rectification of the Land Title Register by the cancellation of a certificate issued to the co-defendant as a result of fraudulent misrepresentation on her part. It has to be noted that, it was the defendant who disclosed to the plaintiff that he was made to issue the said certificate to the co-defendant through fraudulent misrepresentation on the part of the co-defendant. The defendant therefore requested the plaintiff to institute the present action for the court to take a decision on the issue concerning the two certificates covering the same piece of land. It is on the basis of this that counsel for the plaintiff maintained that a finding of fact had already been made by the defendant with regard to the alleged fraud perpetrated by the co-defendant.

Counsel for the co-defendant was in fact ad idem with counsel for the plaintiff that between the plaintiff and the defendant there was no dispute as to facts with regard to the alleged fraud by the co-defendant but with the advent of the co-defendant in the matter, with the co-defendant challenging the allegation of fraud on her part made by the defendant, issues of fact have arisen which could only be determined by viva voce evidence, thus rendering the present procedure inappropriate.

This court agrees totally with counsel for the co-defendant that fraud has to be pleaded and proved by viva voce evidence and not by affidavit evidence, and therefore an action based on fraud in the first

[p.24] of [2001-2002] 1 GLR 19 instance cannot be commenced by originating summons. However, in the present case, the question of fraud was not an issue in the original suit between the plaintiff and the defendant as it was the defendant who intimated to the plaintiff that he was misled by the co-defendant, through fraudulent misrepresentation to issue the certificate sought to be cancelled. So had the co-defendant not joined in this action, the plaintiff would have been on the right course as the appropriate procedure in the case was what was adopted by the plaintiff. To this position both counsel were in agreement. The court, however, agrees with counsel for the co-defendant that with the joinder of the co-defendant in the action, the case has taken a different turn as the co-defendant is challenging the allegation of fraud levelled against her by the defendant, thus making it difficult for the court to resolve the issues at stake on affidavit evidence only.

Whilst the court agrees with counsel for the co-defendant on this issue, the court thinks that in the present case, the remedy does not lie in the dismissal of the whole action, as is being suggested by counsel for the co-defendant, only to be resurrected by an ordinary writ, since the rules have made provision for the resolution of such peculiar cases as was rightly pointed out by counsel for the plaintiff in his argument. According to the language of Order 28, r 8 of the Supreme Court Practice (1993), Vol 1, commonly known as the White Book, where in the cause of a cause or matter begun by originating summons, it appears to the court at any stage of the proceedings that the proceeding should, for any reasons be continued as if the cause or matter had been begun by a writ, it may order the proceedings to continue as if the cause or matter had been so begun The only qualification here is that where from the onset the action was based on fraud but was commenced by originating summons, the same cannot be converted into a writ action under this rule. But where the allegation of fraud only arises as an issue in the cause of the action, as it is the case in the instant action upon the joinder of the co-defendant who is now challenging the question of fraud, which hitherto was not in dispute between the plaintiff and the defendant, then this rule does apply: see the case of In re Deadman (Decd), Smith v Garland [1971] 2 All ER 101.

Under the present circumstances, therefore, I would decline any [p.25] of [2001-2002] 1 GLR 19 invitation to wholly dismiss the action before me and instead order that the suit be continued as if same was begun by an ordinary writ. I, therefore, direct that the parties do file pleadings for the matters in difference between them to be determined without any further delay. The plaintiff is ordered to file his statement of claim within fourteen days from now and have same served on the defendant and the co-defendant, who in turn are to file their statements of defence within the time stipulated by the rules of court after service of the plaintiff’s statement of claim on them. Suit to take its normal cause thereafter. There will be no order as to costs.

Preliminary objection allowed in part.

FGA