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 1^st 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 2^nd defendant was 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 2^nd 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 2^nd defendant continued that after the said search, the 1^st defendant assigned his interest in the disputed property to him for valuable consideration. Thereafter, according to 2^nd 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^stdefendat and the Lands Commission, Kumasi had endorsed same under Title No. 18103 and Serial No. Ash 04/02/2013.

The 2^nd defendant therefore counterclaimed against plaintiffs as follows:

a.    A declaration that 2^nd 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

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, 2^nd plaintiff testified for himself and 1^st plaintiff and called two witnesses. 2^nd 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 1^st and 2^nd plaintiffs/respondents would be referred to as 1^st and 2^nd plaintiffs and the 2^nd defendant/appellants would be referred to as 1^st and 2^nd 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 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 (1^st) 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 the 2^nd 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 2^nd 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 2^nd defendant sought the consent of the lessor which is mandatory. He referred to the book, Land Law, Practice and Conveyancing in Ghana (2^nd 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 2^nd defendantfollowed 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 2^nd 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 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 1^st defendant when they admitted in cross-examination that, they have not seen the lease covering the disputed house.On the contrary, the 2^nd 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 2^nd 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 2^nd 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.

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 2^nd 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 2^nd defendant by the 1^st 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 2^nd 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 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’, 1^st 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 17^th 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 2^nd defendant conduct prior to the conclusion of the transaction. The 2^nd 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).

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 2^nd 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, 12^th March, 2012 and 31^st 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 8^th July, 2013 and 17^th July, 2013 respectively.

Clearly, the 2^nd 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 1^st defendant alienate his interest in the disputed house to the plaintiffs.

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 1^st 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 1^st defendant in respect of the subject property. 

I give some little credence to Exhibits A to D because, although 2^nd 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 1^st defendant.

1.    The 1^st 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 inthe 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 2^nd 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…”

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 2^nd 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 1^st 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.