IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2019
ALHAJI IBRAHIM ABUBAKAR ALHERI & ANOTHER - (Defendants/Appellants)
ISSAKA ABDULAI & ANOTHER - (Plaintiffs/Respondents)
DATE: 26TH JUNE, 2019
CIVIL APPEAL NO: H1/31/2019
JUDGES: OWUSU J.A. (PRESIDING), DZAMEFE J.A., WELBOURNE J.A.
DENNIS KUMA KWAKYE FOR 2ND DEFENDANT/APPELALNT
JEPHTAH APPAU FOR PLAINTIFF/RESPONDENT
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 2nd 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 1stfloors) 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 2nd 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 3rd floor as well as an outhouse (boys’ quarters) sitting on the plot in dispute. So if 2nd 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 3rd 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 2nd 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 1stdefendant had validly transferred his interest in both the ground and the 1stfloor 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 2nd 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 2nd defendant/appellant was entitled to the 3rd 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 28th March, 2017 granting the plaintiffs their reliefs and dismissing the 2nd 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:
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 3rd 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 1st 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 1st 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 1st 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 2nd 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 1st defendant to 2nd 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 2nd defendant averred that sometime in 2012 he decided to buy House No. 4 Block J Dichemso Extension, Kumasi. The 2nd 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 2nd defendant concluded that the disputed property had been exclusively and absolutely vested in him by the 1stdefendat 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
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 1st 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 2nd defendant only.
In arguing the appeal, counsel for the 2nd 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  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 2nd 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 2nd 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 2nd 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 2nd 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 2nd 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 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 2nd defendant referred to the evidence of 2nd defendant representative and stated that before the purchase, the 2nd 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 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 2nd defendant after payment of the disputed house was given the original lease by the 1st defendant.Thereafter, he executed a Deed of Assignment in favour of 2nd defendant which was subsequently registered as Exhibits ‘6’, ‘6A’, ‘6B’; would show. In all these, counsel submitted, the 2nd 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 2nd 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 2nd 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 2nd 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 2nd defendant.
Therefore, once the plaintiffs acquisition preceded that of the 2nd defendant, then the assignor at that time had no title to the property when he purportedly assigned same to the 2nd 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  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’, 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 2nd 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  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).
“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 1st defendant and 2nd defendant dated February, 2012)”
This finding is clearly supported by the evidence on record Exhibit 5, 6 and 6B are dated 7th 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 2nd defendant has concluded the transaction with 1st defendant. Flowing from the above analysis, the trial Judge held that the 2nd 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.
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.
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 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 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…”
Relating the above case to the case under consideration, the 1st 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 2nd 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 28th March, 2017 is hereby affirmed.