MRS. AGNES OSEI v. A-LIFE CO. LTD. & ORS

GERTRUDE TORKORNOO, J. A:

The statutes around which this dispute rages are the Mortgages Act 1972 NRCD 96, the Land Title Registration Law, 1985, PNDC Law 152 and Land Registry Act 1962 Act 122.

One Mrs. Agnes Gertrude Osei, the Respondent herein commenced suit number L305/2002 in the High Court as plaintiff and against A-Life Co Ltd & Another as defendants. She obtained judgment on

13th June 2008 and in her capacity as judgment creditor, attached

property known as Plot No 17 and 17a Park Avenue Teshie Nungua Estates. First Atlantic Merchant Bank, the Appellant herein, filed a notice of claim to the attached property which was disputed by the judgment creditor. In their affidavit of interest attaching the said Legal Mortgage, counsel for Appellant stated that ‘the attached property is the subject of a legal mortgage dated 25th August 2005 and made between A-Life Company Ltd as the Mortgagor therein and the Claimant herein, after consent has been secured from the State Housing Corporation Limited’.

In his affidavit in response to the affidavit of interest, counsel for the respondent argued that the contention that the attached property is unavailable for the purpose of attachment because of the mortgage deed alleged by the appellant is without merit and untenable. It was his argument that by Section 72 (1) of the Land Title Registration Law, 1985, PNDC L 152, a mortgage created after the law shall be in a prescribed form and shall have no effect unless it is registered in accordance with PNDCL 152. Further, by the Land Title Registration – Declaration of Registration District (Accra District 01) Instrument, 1992 (LI 1536) made on 17th July

1992 and gazetted on 31 July 1997, all those parcels of land situate

within (inter alia) Teshie Nungua Estates where the attached properties were declared a registration district pursuant to section 5 of PNDCL 152.

He contended that the mortgage dated 25th August 2005 is of no effect because it is not registered in accordance with PNDC L 152.

He also argued that at the time the mortgage was created, the 1st defendant and claimant were aware of the pending suit and that the property in issue could be attached in execution of any judgment obtained by the Respondent. Thus, the mortgage of the judgment debtor’s property in 2005 when the suit was pending was intended to put the property beyond the reach of the plaintiff as a judgment creditor and was therefore in fraud of creditors. Finally, it was his contention that