APPOLO CINEMAS & ESTATES (GH) LTD vs. CHIEF LAND TITLE REGISTRAR AND ANOTHER [2001]DLHC1166

Date	2001-08-30
Suit No.
Citation No.	[2001]DLHC1166

APPAU J

E O OHENE FOR THE PLAINTIFF.

BARBARA WARD-ACQUAH (MRS) PRINCIPAL STATE ATTORNEY FOR THE DEFENDANT.

[2001]DLHC1166
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">APPOLO CINEMAS &amp; ESTATES (GH) LTD<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">CHIEF LAND TITLE REGISTRAR AND ANOTHER<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p>[2001-2002]
1 GLR 19<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 30 AUGUST 2001<o:p></o:p>

</div>COUNSEL:<o:p></o:p>E O
OHENE FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

BARBARA
WARD-ACQUAH (MRS), PRINCIPAL STATE ATTORNEY, FOR THE DEFENDANT. <o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Appau J. <o:p></o:p>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 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.<o:p></o:p>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.<o:p></o:p>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).<o:p></o:p>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: see
Osburn’s Concise Law Dictionary (8th ed) by Leslie Rutherford &amp;
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.<o:p></o:p>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.<o:p></o:p>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 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
w</main>