February 14, 2024
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court, per Koomson JSC, allowed an appeal arising from a default judgment that had canceled Land Title Certificate GA 37952 held by Judeville Homes Ltd and led to issuance of GA 50764 to Falcon Crest Investment Ltd. The original suit, Numo Adjei Kwanko & Another v. Judeville Homes Ghana Ltd & Registrar, Land Title Division, sought to annul a lease and cancel the title. The Appellant, a non‑party mortgagee with a registered mortgage securing advances to TLG Capital, moved to injunct and set aside the default judgment but was rejected by the High Court and the Court of Appeal. The Supreme Court held the Appellant’s application was procedurally competent under Order 19 of CI 47 and that the registered mortgage conferred sufficient interest to intervene. It further ruled that canceling GA 37952 without hearing the Appellant contravened section 122 of PNDCL 152 and natural justice, recognized tacking of further advances under mortgage law, and held any post‑attachment alienation void. Orders restoring GA 37952, canceling GA 50764, and joining the Appellant as a defendant were made.
KOOMSON JSC:
INTRODUCTION & FACTS:
This is an appeal against the decision of the Court of Appeal dated 25th April 2018. The Court dismissed the Appeal by the 1st Applicant /Appellant/Appellant (hereinafter to be referred to as “The Appellant”).
By a Writ of Summons and Statement of Claim dated the 5th day of November, 2015 the Plaintiffs/Respondents/Respondents (hereinafter referred to as Respondents) commenced an action against the 1st and 2nd Defendants claiming the following reliefs:
1. An order annulling the lease dated the 7th day of July, 2011 between 1st Plaintiff and the 1st Defendant for failure of consideration.
2. An order directing the 2nd defendant to cancel Land Title Certificate No. GA. 37952 Vol. 46 folio 210 in the name of 1st defendant (Judeville Homes Ltd.) and re-issue one in the name of 2nd Plaintiff (Falcon Crest Investment Ltd.)
3. Cost
The Respondents obtained judgment on 11th January 2016 against the 1st and 2nd Defendants at the High court and proceeded to execution.
Appellant herein, on 21st February 2017, that is almost a year after the 1st Respondent secured judgment, filed an application for an injunction and to set aside the judgment of the court delivered against the 1st and 2nd Defendants, which said application was opposed by the Respondents.
RULING OF THE HIGH COURT
The court after hearing the argument of both parties proceeded to dismiss the Application to set aside the default judgment. The learned trial judge opined:
“It is true the proprietor of land with land certificate enjoys indefeasibility of title to the land as stated in section 43 of PNDCL 152 but that indefeasibility is not absolute. It is subject to certain overriding interest such as stated in section 46 of the law and even as could be envisaged in certain peculiar circumstances such as the one the 1st Applicant is saddled with herein
1st Defendant had no registrable interest in the land not having paid for it but would not disclose same to 1st Applicant and deceived 1st Applicant into accepting the certificate and 1st Applicant would also not enquire as to whether the land had been fully paid for before the certificate was applied for and obtained”
The learned trial Judge proceeded to further deliver himself of the judgment as follows:
“To the extent that the said mortgage entered into by 1st Defendant and 1st Applicant to secure the loan advanced to TLG is tainted with deceit and for that matter invalidity, 1st Applicant’s so cal