IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

KUMASI-GHANA
A.D. 2019

CORAM: OWUSU, J.A. (PRESIDING)

DZAMEFE, J.A.
WELBOURNE, J.A.

Civil Appeal No.:

H1/31/2019
26th June, 2019

1. Alhaji Ibrahim Abubakar Alheri

2. P. D. Pag Enterprise Limited 2nd Defendant/Appellant

Vs.
1. Issaka Abdulai
2. Umar Mohammed Plaintiffs/Respondents

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JUDGMENT
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MARIAMA OWUSU, J.A.

On 28th March, 2017, the Circuit Court, Kumasi gave judgment for
the plaintiff on his reliefs (a), (b) and (c) and dismissed 2 nd
defendants counterclaim on relief (a).

In her judgment, the trial court held among other things as follows:

“I hereby declare the plaintiffs have legal and equitable interest

in two flats (all rooms and utilities on both the ground and 1 st

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 floors) in residential Plot No. 4 Block J, Dichemso Extension,
Kumasi are exclusively and absolutely per Exhibit ‘A’ to ‘D’.

The reliefs ‘b’ is granted only to the extent that the transaction
of the said two flats to 2 nd defendant were void. The relief ‘c’ is
granted only in respect of two flats plaintiffs are adjudged
entitled.

The 2nd defendant’s relief ‘a’ fails. However, he may be granted

portion in the disputed house because there was unchallenged
evidence that there is an uncompleted 3 rd floor as well as an
outhouse (boys’ quarters) sitting on the plot in dispute. So if 2 nd
defendant is on record to have paid some valuable
consideration for the entire house but it turned out two flats in
the house did not belong to his grantor, but the 3 rd floor
(uncompleted) and the outhouse/boys quarters are available
and he is desirous of taking possession, I think it would be in
the interest of justice to declare him entitled to the legal and
equitable rights in that portion which his grantor had not
alienated to anyone as at the time 1st and 2nd defendants
contract was made relief ‘a’ and ‘c’ are implied in the above
only to the extent of the portion 2nd defendant has been declared
owner. Safe this, the 2nd defendant counterclaim fails.”

Dissatisfied with the decision of the Circuit Court, the 2 nd defendant

appealed to this court on the following grounds:

a. The judgment is against the weight of evidence.

b. The trial Judge erred when she held that the 1 st defendant
had validly transferred his interest in both the ground and the

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 1st floor in plot No. 4 Block J, Dichemso Extension, Kumasi (the
disputed property) to the plaintiffs.
c. The trial Judge erred when she held that the
plaintiffs/respondents were first in time to have acquired
interest in both the ground and first floors in the house in
dispute.
d. The trial Judge erred when she held that the 2 nd
defendant/appellant was not a bonafide purchaser for value
without notice of the house in dispute.
e. The trial Judge erred when she held that the 2 nd
defendant/appellant was entitled to the 3 rd floor and the
outhouse (Boys quarters) alone.
f. The trial Judge erred when she proprio motu substituted a
case contrary to that put forward by the
plaintiffs/respondents.
g. The trial Judge erred when she failed to consider the High
Court judgment made in favour of the 2nd defendant/appellant
in respect of the house in dispute.

The relief sought from the Court of Appeal is:

“To set aside the part of the judgement dated 28 th March, 2017
granting the plaintiffs their reliefs and dismissing the 2 nd
defendant counterclaim as well as the cost awarded.”

Before dealing with the arguments canvassed in support and

against this appeal, I will give a brief background of the case.

By their writ of summons, the plaintiffs in this case claim against

the defendants jointly and severally the following reliefs:

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 1. A declaration that both the legal and equitable interest/rights
comprised in two (2) flats in residential Plot No. 4 Block J
more particularly situate at Dichemso Extension, Kumasi is
exclusively and absolutely vested in the plaintiffs per a deed
of transfer dated 7th day of September, 2012 and 3 rd day of
December, 2012 respectively.
2. A declaration that the purported transfer of the plaintiffs’
property herein described as two (2) flats in Plot No. 4 Block J
more particularly situate at Dichemso Extension, Kumasi by
the 1st defendant to the 2nd defendant was fraudulent,
wrongful, void and a complete nullity.
3. Perpetual injunction.

In the ten (10) paragraph statement of claim which accompanied

their writ of summons, the plaintiffs averred that the 1 st defendant
was the owner of the House No. 4 Block J, Dichemso Extension,
Kumasi. They averred further that sometime in 2005, they both
acquired two (2) flats in the disputed house from the 1 st defendant
for valuable consideration. They continued that, pursuant to the
said purchase, the 1st defendant transferred the said two (2) flats in
the disputed property to them and documented same with the 1 st
defendant’s picture affixed on the documents.

The plaintiffs continued that they have been in peaceful and quiet
possession of the property since 2008 until recently when 2 nd
defendant purported to claim the said house as having acquired
same in 2013. The plaintiffs concluded that, the purported transfer
of the plaintiffs’ property by 1 st defendant to 2nd defendant was

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fraudulent, wrongful and completely void. The plaintiffs gave the
particulars of fraud and concluded that, the alleged transfer of the
disputed property sins against Section 13 of the Conveyancing
Act and the “nemo dat quod non-habet” principle, hence this action.

The defendants in their statement of defence denies plaintiff’s claim

and put the latter to strict proof of their averment. In particular,
the 2nd defendant averred that sometime in 2012 he decided to buy
House No. 4 Block J Dichemso Extension, Kumasi. The 2 nd
defendant averred further that he conducted a search at the Lands
Commission, Kumasi which search indicated that the property was
not encumbered. The 2nd defendant continued that after the said
search, the 1st defendant assigned his interest in the disputed
property to him for valuable consideration. Thereafter, according to
2nd defendant, he submitted the assignment to the Lands
Commission, Kumasi for registration. The 2 nd defendant concluded
that the disputed property had been exclusively and absolutely
vested in him by the 1 st defendant and the Lands Commission,
Kumasi had endorsed same under Title No. 18103 and Serial No.
Ash 04/02/2013.

The 2nd defendant therefore counterclaimed against plaintiffs as

follows:

a. A declaration that 2nd defendant is the lawful and bona fide

purchaser for value without notice of the purported interest of
the plaintiffs in House No. 4 Block J, Dichemso Extension,
Kumasi.
b. Recovery of possession

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 c. Perpetual injunction restraining the plaintiffs, their servants,
agents and assigns from interfering with the said House No.
Plot 4 Block J, Dichemso Extension, Kumasi.
d. Any further Orders as the Court may deem fit.

At the trial, 2nd plaintiff testified for himself and 1 st plaintiff and
called two witnesses. 2nd defendants also testified through one of
its Directors and called two witness.

At the end of the hearing, the plaintiffs’ claims were upheld.

Defendants counterclaim was dismissed hence this appeal.

In this appeal, the 1st and 2nd plaintiffs/respondents would be

referred to as 1st and 2nd plaintiffs and the 2nd defendant/appellants
would be referred to as 1st and 2nd defendants.

Let me put it on record that this appeal has been filed by 2 nd

defendant only.

In arguing the appeal, counsel for the 2 nd defendant on ground ‘1’ of

the appeal which complained that the judgment is against the
weight of evidence, referred to cases of Tuakwa Vs. Bosom [2001-
2002] SCGLR 61 and Djin Vs. Musah Baako [2007-2008] SCGLR
658 on what is required of us as an appellate court when a party
appeals on the omnibus ground. Counsel also stated the burden of
proof in a civil case like the one on appeal and referred to Section
11 and 12 of the Evidence Act, 1975 (NRCD 323) as well as the
cases of Adwubeng Vs. Domfeh [1996-97] SCGLR 282 and Osei
Vs. Korang [2013] 58 GMJ, SC and submitted that, the plaintiffs

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woefully failed to prove their claims on when they acquired the
property in dispute.

Counsel pointed out that in his evidence, the 2 nd plaintiff said they
purchased the part of the disputed house in 2011 but in their
pleadings, the plaintiffs said they acquired two (2) flats in the
disputed house in 2005. Counsel then submitted that, the
plaintiffs were not specific on when and how the transaction took
place. Counsel for the 2 nd defendant then submitted that the
plaintiffs must succeed on the strength of their own case. He
referred to a portion of the judgment in contention and submitted
that, the trial Judge conceded that, the plaintiffs’ evidence is at
variance with their evidence. Nonetheless, the trial Judge upheld
the plaintiffs claim. Consequently, counsel submitted, the decision
of the trial Judge did not support the evidence on record and
therefore the plaintiffs’ claim remain unproven. The second piece of
evidence that according to counsel for the 2 nd defendant that does
not support the conclusion reached by the trial Judge is the
missing documents covering the second transaction.

Then, there is the evidence by the plaintiffs that after the 2 nd

transaction, first (1st) defendant took the plaintiffs and introduced
them to tenants in the house that he had sold the disputed
properties to the plaintiffs. Counsel argued that, the 2 nd defendant
denied this piece of evidence. Having denied that piece of evidence,
it was incumbent on plaintiffs to call some of the tenants to
corroborate this piece of evidence. Nonetheless, the trial Judge
granted the plaintiffs’ claimed. Based on the foregoing, counsel for

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the 2nd defendant submitted that, the plaintiffs failed to prove their
case and their claim should have been dismissed.

On ground (d) which states that, the trial Judge erred when she
held that the 2nd defendant/appellant was not a bonafide purchaser
for value without notice of the house in dispute, counsel for 2 nd
defendant referred to the evidence of 2 nd defendant representative
and stated that before the purchase, the 2 nd defendant conducted
searches at both the Lands Commission and the disputed house.
Counsel submitted that these pieces of evidence is very material
and revealing which pieces of evidence were not rebutted by the
plaintiffs.

Secondly, the 2nd defendant sought the consent of the lessor which
is mandatory. He referred to the book, Land Law, Practice and
Conveyancing in Ghana (2nd Edition) by Justice Dennis Dominic
Adjei at page 195 on who a bonafide purchaser for value without
notice is. Counsel therefore submitted that, having conducted the
necessary searches at the Lands Commission, Kumasi and in the
house in dispute, the 2nd defendant followed the necessary
processes by obtaining the consent of the lessor. He was thus a
bona fide purchaser for value without notice and its claim should
have been upheld. The 2nd defendant after payment of the disputed
house was given the original lease by the 1 st defendant. Thereafter,
he executed a Deed of Assignment in favour of 2 nd defendant which
was subsequently registered as Exhibits ‘6’, ‘6A’, ‘6B’; would show.
In all these, counsel submitted, the 2 nd defendant exercised due

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diligence before title in the disputed house was finally transferred to
it in contrast to the plaintiffs.

Based on the above submissions, counsel for 2 nd defendant

submitted that, the plaintiffs could not have lawfully acquired the
property in dispute from the 1st defendant when they admitted in
cross-examination that, they have not seen the lease covering the
disputed house. On the contrary, the 2nd defendant did everything
a diligent purchaser would do in acquiring the disputed property.
Then, there is the High Court judgment, Exhibit ‘8’ tendered by the
2nd defendant which the trial Judge failed to advert her mind to
same.

Based on the foregoing, counsel for the 2 nd defendant invited us to

uphold the appeal and set aside the judgment of the circuit Court.

In response to the submissions by counsel for the appellant,

counsel for the plaintiffs after referring to the evidence of the parties
and their witnesses at the trial argued that considering the issues
set down for trial and the Exhibits tendered especially Exhibits A,
B, C and D by the plaintiffs, it is clear that the plaintiffs indicated
to the court that they started the transaction for the acquisition of
the flats in the disputed house as far back as 2008 and completed
same in 2011. After quoting a portion of the cross-examination of
2nd plaintiff by counsel for the 2 nd defendant, counsel for the
plaintiffs submitted that the plaintiffs were able to demonstrate that
their grant was first in time compared with that of the 2 nd
defendant.

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Therefore, once the plaintiffs acquisition preceded that of the 2 nd
defendant, then the assignor at that time had no title to the
property when he purportedly assigned same to the 2 nd defendant.
Counsel referred us to Section 13 of the Conveyancing Act, 1975
(NRCD 175). He then submitted that the assignment of the
disputed property to 2nd defendant was a complete nullity and or
void for lack of locus standi on the strength of the maxim nemo dat
quod non-habet.

Additionally, counsel argued, the purported transfer of the disputed

property to the 2nd defendant by the 1st defendant was fraudulently
done and therefore same is a nullity.

Based on the foregoing, counsel for the plaintiff invited us to

dismiss the appeal.

In this appeal, the 2nd defendant counterclaimed for a declaration of

title to the disputed house and other ancillary reliefs. Therefore, it
equally bears the burden of proof like the plaintiff on its
counterclaim. See the case of Jass Co. Ltd. Vs. Appau [2009]
SCGLR 265 holding (1) of the headnotes where their Lordships
held that:

“The burden of proof is always put on the plaintiff to

satisfy the court on a balance of probabilities in an
action for a declaration of title to land. Where the
defendant has not counterclaimed and the plaintiff has
not been able to make out a sufficient case against the
defendant, then the plaintiff’s claims would be
dismissed. Whenever a defendant also files a

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 counterclaim, then the same standard or burden of proof
would be used in evaluating and assessing the case of the
defendant, just as it was used in evaluating and
assessing the case of the plaintiff against the
defendant….”

The burden of proof in civil cases including land is proof by the

preponderance of probabilities.

In her judgment, the trial Judge found as a fact that by Exhibits ‘A’
to ‘D’, 1st defendant has validly transferred his interest in two flats
in the property plot 4 Block J, Dichemso Extension, Kumasi to
plaintiffs, the discrepancies in the plaintiff’s pleadings and evidence
notwithstanding.

Again, in answering the question whether or not the 2 nd defendant

was a prudent purchaser for value without notice of defect in the
title of his vendor in the disputed property, the trial Judge referred
to the case of Kusi & Kusi Vs. Bonsu [2010] SCGLR 60 and came
to the conclusion that Exhibit ‘7’ the Search conducted at the Lands
Commission dated 17th July, 2013 was unnecessary as a search
conducted by a prudent purchaser. In coming to this conclusion,
the trial Judge stated:

“What kind of search did the 2nd defendant conduct prior to the
conclusion of the transaction. The 2nd defendant in his evidence
has indicated he conducted three (3) searches as indicated
supra. Lands Commission is a regulatory Authority and no
court of equity would agree to an alleged verbal search at such
an outfit” (our emphasis).

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She continued:

“It is not that an evidence of a search was not shown, but the
relevant and most prudent evidence of a search would have
been the one that was done showing result of who owns the
land prior to the preparation of Exhibit ‘5’ (lease between 1 st
defendant and 2nd defendant dated February, 2012)”

This finding is clearly supported by the evidence on record Exhibit

5, 6 and 6B are dated 7 th February, 2013, 12th March, 2012 and 31st
October, 2012, the Deed of Assignment and Consent respectively.

The application for a search in respect of House No. 4 Block J,

Dichemso extension, Kumasi and the response from lands
Commission, Kumasi are dated 8th July, 2013 and 17th July, 2013
respectively. Clearly, the 2nd defendant by the dates stated above
had concluded its transaction in acquiring the disputed property
before carrying out the search on the disputed property. It cannot
therefore be said that it is an innocent purchaser for value without
notice and the trial Judge was right in coming to the conclusion
that it conducted any such search.

The search, Exhibit 7 and 7A were conducted after the 2 nd

defendant has concluded the transaction with 1 st defendant.
Flowing from the above analysis, the trial Judge held that the 2 nd
defendant should be deemed to have had a constructive or imputed
notice of the plaintiff’s prior interest by his failure to present
evidence of a search. The trial Judge also came to the conclusion
that the 1st defendant alienate his interest in the disputed house to
the plaintiffs.

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This is how the trial Judge arrived at her decision:

“The evidence of PW1 and PW2 corroborate the claim by the

plaintiffs that the disputed flats were bought by plaintiffs from
the 1st defendant. Although the documentation supporting the
sales transaction in favour of the plaintiff do not meet legal
standard, the little weight put on it together with the evidence of
plaintiffs and their witnesses confirms a sale transaction
between plaintiffs and 1st defendant in respect of the subject
property.

I give some little credence to Exhibits A to D because, although

2nd defendant has alleged fraud on the part of procurements of
Exhibits A to D, they failed to show in what respect it was
procured fraudulently. It does stand to reason that the evidence
would also not support fraudulent acts on plaintiffs’ part
either…”

She concluded on this point thus:

“Its therefore safe to repeat that as at the time the 1 st defendant

purported to alienate his interest in house number plot No. 4
Block J, he had already assigned the ground and first floors to
the plaintiffs”.

We have looked at Exhibits A, B, C and D, the plaintiffs documents

evidencing the acquisition of the two flats in the disputed house No.
4 Block J, Dichemso Extension, Kumasi.

We are convinced that it conveyed the interests the plaintiffs claim

they acquired from the 1st defendant.

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 1. The 1st defendant the assignor has signed.
2. Witnesses has signed the documents
3. The plaintiffs have also signed
4. The property has been described in the document.
5. The interests i.e. rooms, flats, etc had also been stated.

Having acquired their interests in the two flats earlier in time,

between 2008 and 2012, the trial Judge was right in giving
judgment for the plaintiffs. Her findings are clearly supported by
the evidence on record and 2nd defendant’s counterclaim was rightly
dismissed.

Looking at the evidence in this appeal as a whole, the case of

Amuzu Vs. Oklikah [1998-99] SCGLR 141, 142 comes into play
here. In holding (1) of the Report, their Lordships held that:

“The Land Registry Act, 1962 (Act 122) did not abolish
the equitable doctrine of notice and fraud; neither did it
confer on a registered instrument a state-guaranteed
title. Consequently, a later instrument (such as Exhibits
‘B’ in the instant case) could only obtain priority over an
earlier one by registration under Section 24 (1) of Act 122
if it was obtained without notice and fraud of the earlier
unregistered instrument”.(our emphasis)

In holding (2), their Lordships held that:

“Fraud would constitute a defence for avoiding the

incidence of registration of title to the land. However, to
have effect, it must be pleaded specifically as required…”

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Relating the above case to the case under consideration, the 1 st
defendant alienated two flats in the house in dispute to the
plaintiffs between 2011 and 2012. Therefore, at the time he
purported to transfer his interest in the whole house to 2 nd
defendant, he was not the owner of those two flats.

Secondly, the 2nd defendant cannot be said to be an innocent

purchaser for value without notice since he conducted his search
after he had concluded the transaction with 1st defendant. He
therefore was not a prudent purchaser.

It is for these reasons that the appeal fails and it is accordingly

dismissed.

The judgment of the Circuit Court, Kumasi dated 28 th March, 2017

is hereby affirmed.

{SGD}
MARIAMA OWUSU
[JUSTICE OF APPEAL]
(PRESIDING)

{SGD}
Dzamefe, (J.A.) I agree SENYO DZAMEFE
[JUSTICE OF APPEAL]

{SGD}
Welbourne, (J.A.) I also agree MARGARET WELBOURNE
[JUSTICE OF APPEAL]
COUNSEL:
1. DENNIS KUMA KWAKYE FOR 2ND DEFENDANT/APPELALNT.
2. JEPHTAH APPAU FOR PLAINTIFF/RESPONDENT.

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