IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
EDWARD KWESI SANTENG AND NII OWORSHIKA - (Plaintiffs/Appellants)
DR. EDWARD ACQUAH, MRS. JOYCE ACQUAH, MERCY OFORIWA AND HON. MR. S. O.DARKO - (Defendants/Respondents)
DATE: 16TH FEBRUARY, 2017
SUIT NO: H3/337/2016
JUDGES: P. K. GYAESAYOR J. A (PRESIDING), IRENE LARBI (MRS) J.A, AVRIL LOVELACE-JOHNSON J.A
MR. RAY APPIAH-AMPONSAH FOR THE PLAINTIFF’S/APPELLANTS
MR. FELIX AMANKWA FOR THE DEFENDANTS/RESPONDENTS
AVRIL LOVELACE – JOHNSON (JA)
The High Court on 26th July 2012 gave judgment in this matter by which it refused the Plaintiff/Appellant’s claims for
1. As against 1st and 2nd Defendants jointly and severally Specific Performance of the said Agreement
2. Damages for breach of contract in lieu of or in addition to Specific Performance
3. General Damages for trespass against the 3rd Defendant.
4. An order setting aside the purported Sale of the Land in dispute to the Co-Defendant
5. Perpetual Injunction restraining 1st and 2nd Defendants from conveying the land to any other person apart from Plaintiff and further Order directed against all the Defendants to desist from dealing directly or indirectly with the land which has been sold to Plaintiff in a manner adverse to the legal and equitable interest acquired by the Plaintiff in the land
The court rather entered judgment for the Co-Defendant/Respondent on his counterclaim for title to the land as a bona fide purchaser for value and vested title of the land in dispute in him.
Being dissatisfied with this judgment, the Plaintiff /Appellant has launched the present appeal on the following grounds
1. The judgment is against the weight of evidence.
He later filed the following additional grounds, the first two of which this court was asked to consider abandoned since they were not going to be argued.
i. The judgment which was delivered on 26th July, 2012 without issuing Hearing out Hearing Notice to the parties (Plaintiff) to attend Court renders the day’s proceedings a nullity and same should be set aside.
ii. The proceedings held on 26th July, 2012 by the Court without Hearing Notices to the Parties defied the rules of Natural Justice the right to be heard
iii. The 1st and 2nd Defendants/Respondents were in breach of sale Agreement with the Plaintiff/Appellant and should be ordered to convey the property to the Appellant.
iv. The Co-Defendant/Respondents who pleaded Defence of a “Purchaser in good faith for value without Notice” should not be granted title to the land because he had actual notice of Appellant’s possession of the land since his representative/agents designated destroyed or scattered Appellant’s sand and stones deposited on the land.
v. Having pleaded a defence of a “Purchaser in good faith for value without notice”, the Co-defendant/Respondent ought not to have been allowed to rely on a Dead of Gift to prove his title.
He seeks from this court an order setting aside the portion of the judgment vesting title of the land in dispute in the Co-Defendant.
Hereon, for ease of reference the parties will be described by their designated titles in the High Court and the monies stated herein will be designated by the currency at the time ie cedis.
From the pleadings, the undisputed facts, leading to the present action, in sum, are that the Plaintiff agreed with the 1st Defendant to purchase the disputed land from him at an agreed price. The plaintiff made a part payment for which he was issued a receipt. According to the 1st Defendant, the balance outstanding was to be paid within three months. The Plaintiff on the other hand states that the balance was to be paid upon preparation of an indenture for him by the 1st Defendant. Whatever the agreement was, it is undisputed that the land in dispute was eventually sold to the 4th Defendant (Co-Defendant).
Regarding his first ground of appeal that the judgment of the court is against the weight of the evidence led, counsel for the Appellant in line with his obligation to point out the particular lapses in the judgment, contends that
The court’s finding that the Appellant failed to make full payment for the disputed land within reasonable time amounted to it adjudicating on a specific matter not asked for by the parties by their pleadings.
The court’s finding that the Plaintiff’s position that full payment was to be made by him only upon the execution of the correct indenture was an unjustified one.
A ground of appeal such as the present, as rightly stated in the submissions of both counsel implies that the conclusions reached by the court are not supported by the evidence on record. To determine whether this is indeed so, the appellate court, by way of its power of rehearing under Rule 8 (1) of the Court of Appeal Rules CI 19
“…is bound to consider comprehensively the entire evidence on record before coming to a conclusion on the matter”
per Brobbey JSC in the case of Aryeh & Akakpo v Ayaa Iddrissu [ 2010] SCGLR 891
see also the recent Supreme Court decision in Re: Asamoah (deceased) Agyeiwa & others V. Manu [2013-2014] 2 SCGLR 909
Where the Court held in holding 2 that:
“ The general principle in determining the omnibus ground of appeal that the judgment is against the weight of evidence, which is by way of re-hearing, is that the Appellate Court is placed in the same position as if the exercise was the original re-hearing. The Court may, in exceptional circumstances, receive evidence in addition and may review the whole case and not merely the points as to which the appeal is brought”
Such evidence will of necessity not just be the oral evidence led but also the documentary evidence. See further the cases of
1. Tuakwa v Bosom [2001-2002] SCGLR 61
2. Djin v Musa Baako [2007-2008] 1 SCGLR
The pleadings show that an agreement to sell the disputed property was made between the Plaintiff and the 1st Defendant. See paragraph 7 of the Amended Statement of Claim and paragraphs 6 and 7 of the statement of defence.
The 1st Defendant states in paragraphs 7 and 12 that full payment was to be made by the Plaintiff within three months after the sale and that as a result of the Plaintiff’s default he terminated the contract and negotiated with the 4th Defendant to take the land. 1st Defendant’s said paragraph 7 states as follows;
7. The 1st Defendant says that full payment was to be made within three months………
The said paragraphs were denied by the Plaintiff in paragraphs 6 and 9 of his reply and defence to counterclaim found at page 6 of the addendum to the Record of Appeal. It is stated in part in the said paragraph 9 as follows
“….and explains in part that he was not given three months within which to pay the balance…..”
One of the additional issues set down for determination was whether or not full payment for the land was to be effected within three months. The record shows and it is undisputed that the first defendant did not testify in court. and the court stated at page 394 that, the 1st Defendant having failed to lead evidence in proof of his allegation (denied by the Plaintiff) that payment for the land was to be made within three months, the said allegation stood unproven. That should have been the end of this issue on the basic rule of evidence that he who alleges must prove. Section 14 of the Evidence Act 1975 Act 323 describes it as the alleging party having
“….the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”
1st Defendant set down the following issue for determination that is; Whether or not full payment for the land was to be effected within three months.
In the light of the court’s position that the pleading on the issue stood unproven, it was not required to make a determination on what the reasonable period for completing payment was. Its conclusion that the Plaintiff should have paid the money to the 1st Defendant at the end of December 1999,( a period considered reasonable by the court) is not supported in any way by the evidence led. What the court did amounted to introducing and pronouncing on an issue not raised by the parties and in so doing providing a justification for the actions of the 1st Defendant which he himself did not put up. See the case of
Dam v Addo  2 GLR 200
As stated earlier, under this ground of appeal, counsel also takes issue with the court’s finding that the Plaintiff’s insistence that payment was to be effected only upon the execution of the ‘correct’ indenture was unjustifiable.
The court’s reason was that nothing prevented Plaintiff from making prompt payment of the full purchase price if he was so minded. Counsel for the Plaintiff impugns the above finding by the court by examining the said indenture, exhibit D tendered by the Plaintiff without objection on 27th January 2004. It is clear from the pleadings that the understanding between the parties was that 1st Defendant was selling the disputed land to the Plaintiff. See paragraph 5 of the 1st Defendant’s Statement Of Defence.
Exhibit D has no date. It describes the 1st Defendant as “The Donor” and the Plaintiff as “The Donee”. Paragraphs 2,3 and 4 have gaps. The said exhibit is reproduced hereunder
By a gift dated the 16th day of October,1976 stamped as No.
AC.2919/80 and Registered as No.111/1992 and made between Numo Adjei Tawiah Head and Lawful Representatives of Adjei Tawiah family of the one part and Donor herein of the other part the land and hereinafter described were conveyed to the Donor herein by way of Gift:
AND WHEREAS by a Deed of Gift dated 2nd day of November,1993 stamped as No.AR/GAD/91B/93 and LVB.7974B/94 and registered as No……… and made between Madam Adjorkor Adjei of the one part and the donor herein of the other part the property therein described was conveyed to the Donor forever:-
The Donor as owner of the land and hereinafter described which forms part or portion of the land described in the above recited Indenture hereby grants and conveys unto the Donee in consideration of the sum of ₵
…………. Paid by the Donee to the Donor:-
The Donor hereby acknowledges the receipt from the Donee of the sum of ₵…………. Being thanks offering of the said land:
The land situate lying and being at OYARIFA ACCRA and bounded on the North by Proposed Road measuring 200 feet more or less on the South by Donor’s land measuring 300 feet more or less on the West Aburi Road measuring 60 feet more or less on the East by Proposed Road measuring 50 feetmore or les on the North-West by proposed Road measuring 90 feet more or less on the North-East by Proposed Road measuring 60 feet more or less and covering an approximate area of 0.69 Acre which piece of land is more particularly delineated on the plan attached hereto and thereon shown edge pink which shows the relevant measurements:-
IN WITNESS WHERE OF the parties hereto and thereon shewn edge pink the day and year first above written:-
SIGNED SEALED AND DELIVERED by the said
EDWARD ACQUAH in the presence of:
SIGNED SEALED AND DELIVERED by the said
MR.& MRS. EDWARD KWASI SANTENG in the presence of :
OATH OF PROOF
I,………………………… of Accra make oath and say that on the day of …….. 19….. I was present and
saw…………. Duly execute the Instrument now produced to me and marked “A” and that the said
…………………………. can read and write:-
SWORN AT ACCRA THIS……. DAY …….OF…….. 19
REGISTRAR OF LANDS
On the ………day of ……..19……. at o’clock in the …….. noon this Instrument was proved before me by the oath of the within-named …………… to have been duly executed by the within-named.
REGISTRAR OF LANDS
Clearly this exhibit is NOT a true reflection of the transaction between the parties mentioned therein
ie the Plaintiff and the 1st Defendant. The Plaintiff was justified in refusing to accept it as a document transferring title to him. Every prudent purchaser of land will expect a document of title. During cross examination of the Plaintiff on 3rd February 2004, 1st Defendant’s counsel sought to make issue of the fact that as at 5th November 1999, Plaintiff had proof that the land belonged to 1st Defendant and yet he refused to complete payment. Proof of ownership is different from transfer of title.
In the light of the fact that the contents of exhibit D did not reflect the true transaction between the parties, the court’s finding that the Plaintiff’s insistence on being given a correct document was unjustifiable is not borne out by the evidence led. Indeed his insistence was prudent and commonsensical. Counsel for the Respondent’s submission that the Plaintiff did not provide any cogent reason for his delay in making payment flies in the face of this finding.
On this issue, counsel for the Defendant’s has referred to inconsistencies in the evidence of the Plaintiff. He reproduced a portion of the cross examination of the Plaintiff at page 184 of the Record of Appeal where in answer to a question on whether or not it was a condition of the contract that full payment would be made upon the production of a correct indenture and the Plaintiff’s answer was that this was not correct.
It is admitted that this answer would seem to contradict the basis of Plaintiff’s refusal to accept exhibit D and making full payment. This seeming contradiction does not remove from this Court’s position that the High Court’s finding that Plaintiff’s insistence on a correct indenture was unjustified is not borne out by the evidence on record.
The ground of appeal that the judgment is against the weight of evidence succeeds and is hereby upheld
As stated earlier grounds (i) and (ii) of the additional grounds of appeal were abandoned. Ground (iii) is that the 1st and 2nd Defendants were in breach of the Sale Agreement with the Plaintiff and should be ordered to convey the property to him.
The trial court had in the course of the judgment stated that by failing to include the purchase price in Exhibit A, the said document did not meet the necessary requirements to qualify as a memorandum of the agreement between the parties within the meaning of section 2(a) of the Conveyancing Act 1973 as defined by judicial pronouncement. These requirements the Court stated to be:
a) The names of the parties;
b) The description of the property to be transferred.
c) The purchase price of the property: and
d) The signature of the person to be therewith or that of some other person he had lawfully authorized to sign;
See page 356 of the Record of Appeal.
The Court therefore proceeded to consider the matter under 3(2) of the Act which permits the rules of equity relating to unconscionability, fraud, duress and part performance to override the requirements of Section 2.
It would appear from the submissions of counsel for the Plaintiff that he holds the position that the court ought not to have held that Exhibit A did NOT qualify as a memorandum of Agreement but should have treated the undisputed evidence of an agreement to sell the land at a particular price as extrinsic evidence to rewrite the said memorandum to reflect same since that was the intention of the parties. Counsel for the Defendants does not respond to this particular position in his submissions.
The evidence on record shows, and it is also clear from the judgment, that the Court held the position
that there was an agreement to sell the disputed land between the Plaintiff and the 1st Defendant even if Exhibit A, tendered by the Plaintiff as evidence of the said agreement did not meet all the requirements of section 2(a) of the Conveyancing Act,1973 particularly the need for the document evidencing the agreement to include the purchase price.
The said Exhibit A is reproduced hereunder
LAND SALE RECEIPT
“ This is to certify that I undersigned Edward Acquah of Post Office Box …………. In the Greater Accra Region of the Republic of Ghana have received the sum of four million cedis only ₵4,000,000.00 being part payment of purchased money made to cover a plot of land sold and delivered to Mr. Edward kwasi Santeng of P. O. Box 139 Accra.
This land is situated lying and being at OYARIFA-Accra in the Greater Accra Region of the Republic of Ghana being the BONAFIED property of the said Mr. Edward Acquah and the same is free from all encumbrances whatsoever and as free from any family or tribal claims as possible.
Dated at Accra this 14th day of October 1999”.
This land is hereby entirely and delivered to the said Mr. Edward Kwasi Santeng of Accra of his heirs administrators or assigns forever for the said amount paid in acknowledgement of which I hereby give this receipt”.
The document was signed and witnessed.
Section 177 (1) of the Evidence Act 1975 NRCD 323 states as follows
‘Except as otherwise provided by the rules of equity, terms set forth in a writing intended by the party or parties to the writing as a final expression of intention or agreement with respect to those terms may not be contradicted by evidence of a prior declaration of intention, of a prior agreement of a contemporaneous oral agreement or declaration of intention, but may be explained or supplemented,
By evidence of consistent additional terms unless the Court finds the writing to have been intended also as a complete and exclusive statement of the terms of the intention or agreement….”
In the case of Gorman & Gorman V Ansong  1 SCGLR 174, the court stated at holding 2 that
“ Extrinsic evidence( ie evidence of a prior agreement) might be admitted to construe a document in certain circumstances. Thus extrinsic evidence might be employed where there were conflicting or contradicting terms or where such evidence would elucidate the intention of the parties. But extrinsic evidence could not be admitted if that evidence was inconsistent with the intentions of the parties as expressed in the document.”
Phipson on Evidence, 15th Edition Paragraph 43- 01 on the topic Admission of extrinsic evidence in aid of interpretation and to rebut presumption states that :
“Where the language is peculiar, or its application to the facts is ambiguous or in accurate, extrinsic evidence may subject to the qualification hereafter stated be given in explanation”.
The writer in the said book quotes Lord Wright in the case of Luxor V. Cooper 1994 AC 108 at paragraph 43-09 where he gives the following admonition
“……….. Any attempt to enunciate decisions on the construction of agreements as if they embodied rules is to be deprecated. To some extent decisions on one contract may help by way of analogy and illustration in the decision of another contract, but however similar the contracts may appear, the decision on each must depend on the consideration of the language of the particular contract, read in the light of the material circumstances of the parties in view of which the contract is made”.
The trial Court in its discretion, did not admit extrinsic evidence to import the purchase price of the land into exhibit A as it could have done. The court however stated that to avoid injustice it would apply the provisions of section 3(2) of the Conveyancing Act, 1973 earlier referred to. The refusal to grant Plaintiff’s claim was not because of the failure to state the purchase price in Exhibit A.
That having been said, the question to be answered is whether the 1st Defendant was in breach of the agreement to sell. The position of counsel for the 1st Defendant is that it is the conduct and failure of the Plaintiff to fulfill obligation by making full payment for the land within a month that led to 1st Defendant rescinding the contract. He was therefore not in breach. We have already stated that the pleading of the 1st Defendant that the money was to be paid within three months was unproven due to his failure to testify. DW2’s testimony that the money was to be paid in one month contradicts the pleading of 1st Defendant and so does not carry any weight. Counsel further states that Exhibit A, the receipt issued to the Plaintiff did not transfer interest I n the property to the Plaintiff so he has no capacity to ask the court to convey the property to him.
As stated earlier the High Court found as a fact that “proper evidence had been led in proof of the contract” to sell but based its decision on whether to grant the Plaintiff’s claim for specific performance on whether or not the admitted part payment of four million cedis made by the Plaintiff was a sufficient act of part performance. See page 329 of the Record of Appeal
The court after doing an in depth analysis and after stating four conditions that had to be met for payment of money to constitute part performance referred to the Supreme Court’s decision in the Koglex Ltd (No 2) v Field case and came to the conclusion that the money paid by the Plaintiff
“….constituted sufficient act of part performance which could justify a grant of an order of specific performance”
Thereafter instead of making a finding on whether or not the Plaintiff was entitled to the remedy of specific performance sought, the court suo moto went into a discussion about the failure of the Plaintiff to pay the purchase price on time and stated that he had not shown himself
“ready, desirous, prompt, eager” to perform his side of the contract”
We have stated earlier in this judgment that the court should not have embarked on that excursion. Even if the court had been justified in undertaking that excursion, we have earlier found that the Plaintiff’s insistence on being given a “correct” indenture instead of exhibit D was justified and so the 1st Defendant should not be allowed to take advantage of a situation created by his willful act of not giving Plaintiff the ‘correct’ or proper document.
The more recent case of Gorman & Gorman v Ansong supra holding 3 states as follows
“Payment of money whether in part or in full would render a contract enforceable and the purchaser would be entitled to an order of specific performance. To establish facts amounting to part performance, what was required of a Plaintiff was to show that he acted to his detriment and the acts in question were such as to indicate, on the balance of probabilities, that they had been performed in reliance of a contract with the Defendants”
There is no doubt that the amount of four million cedis was paid by the Plaintiff because of the agreement of sale between him and the first defendant, that, upon 1st Defendant’s refusal to accept the balance due, he further paid an amount of Thirty Eight Million Cedis (¢38,000,000) into the bank account of the first Defendant. Surely, it was fraudulent on the part of the 1st Defendant who had failed to produce the proper document as agreed upon to sell the land to another person.
As held by the Supreme Court in the Koglex case
“The relief of specific performance would lie whenever, as in the instant case, agreement between parties had got to such a stage that it would amount to fraud on the part of the other party to refuse to perform his side of the bargain.”
Acquah JSC (as he then was) stated in particular that
“Indeed to establish facts amounting to part performance, what is required of a Plaintiff is to show that he had acted to his detriment and that the acts in question are as to indicate, on the balance of probabilities, that they were performed in reliance of a contract with the defendant”
Clearly, from the evidence on record, the Plaintiff has been able to satisfy the above requirement. We find that the 1st Defendant was indeed in breach of the agreement to sell the disputed land to the Plaintiff.
This ground of appeal also succeeds and is upheld
The import of the 4th and 5th grounds of appeal earlier quoted are that the Co-Defendant who claims on the basis that he is a bona fide purchaser without notice is not entitled to his claim because he had actual notice of Plaintiff’s possession of the land and further having claimed on this basis, he ought not have been allowed to rely on a deed of gift to prove his title.
At page 336 of the ROA, the High Court after refusing the Plaintiff’s claim went ahead to enter judgment for the Co Defendant on his counterclaim and declared that title to the disputed land was vested in him. The court did not discuss this counterclaim in its judgment or make findings on the defence of a bona fide purchaser for value without notice.
Are the complaints of the Plaintiff formulated by these two grounds of appeal justified in the light of evidence led at the trial and the law? Fairness and prudence lie at the root of the plea of bona fide purchaser for value without notice. Any fraudulent act tainting the ingredients of this plea will lead to it not being upheld by a court of law.
It is trite that the onus of proving a counterclaim, considered an independent action by virtue of 0rder 12 rule 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47) lies on the Defendant making it. In this case the Co Defendant bases his counterclaim on the plea of a bona fide purchaser for value without notice and in line with the rules of evidence, he has to establish it. See Duodu v Benewah  2 SCGLR 1306
The case of Pilcher v Rawlings [1871-72] 7 LR Ch App 259@269 describes this burden of proof in the following words
“Such a purchaser when he has once put in that plea may be interrogated and tested to any extent as to the valuable consideration which he has given in order to show the bona fides or mala fides of his purchase and also the presence or the absence of notice….”
How did the Co-Defendant go about discharging the above burden? According to the Co-Defendant, he paid eighty seven million cedis for the disputed property. He tendered no receipt in support of this payment with the explanation that he had lost his receipt. At page 239 he implied that exhibit K was the receipt given him when he purchased the land. The said exhibit does NOT state a purchase price.
Exhibit 8, the document given him, transferring title to him describes the land as a gift, he as Donee and the 1st Defendant as Donor. It is also stated therein that he gave the 1st Defendant ten million cedis as “thanks offering for the piece of land” During cross examination, he admits that the contents of the said exhibit were false and were not a true reflection of the transaction between him and 1st defendant. His flippant answer at page 238 of the ROA when cross examined on the issue during cross examination was as follows
“It is not on the indenture, in all cases in Accra, the amount paid to the vendor is not the correct amount stated on the indenture”
The Court cannot condone an illegality and certainly a fraudulent document such as the aforementioned exhibit cannot be used as the basis of a plea so grounded on bona fide. Further the document in question does not contain evidence of payment of valuable consideration. It purports to evidence a gift (admitted to be a falsehood) for which the Co Defendant allegedly gave a thanksgiving. Exhibit K, the receipt purportedly given to the Co Defendant does not contain a purchase price. It is reproduced hereunder
“This is to certify that I the undersigned Edward Acquah
Of Post Office Box. DC654 Dansoman-Accra in the Greater
Accra Region of the Republic of Ghana have received the sum
Being the full payment of purchased money made to cover a plot of land sold and delivered to Mr. S. O. Darko of Accra.
This land is situate lying and being at OYARIFA-Accra in the
Greater Accra Region of the Republic of Ghana Being the
BONAFIED property of the said Mr. Edward Acquah and the
same is free all encumbrances whatsoever and as free from
any family or tribal claims as possible.
This land is hereby entirely and delivered to the said Mr. S.O.
Darko…………….. of ……. Accra………. of his/her heirs
Administrators or assigns forever for the said amount paid in
acknowledgement of which I hereby give this receipt
Dated at ………………… this 19th day of June 2000
Signed/Marked of Vendor
Signed/Marked of the Purchaser”
Having failed to prove that he paid valuable consideration for the disputed property, the plea should fail even if the Co-Defendant had not had any notice of the Plaintiff’s interest in the land.
We will however proceed to consider the issue of notice. A stated earlier it is the Co Defendant who having put in a plea of a bona fide purchaser for value without notice who has to prove the absence of notice on his part. At page 233 of the ROA, he states in his evidence in chief that he did his own underground search and found the documents to be genuine and that although he found sand and gravel on the land he did not know it belonged to the Plaintiff.
The record shows that DW2, Charles Yarfo was the one who arranged both the sale between the Plaintiff and the 1st Defendant and that between the 1st Defendant and the Co Defendant. He signed as a witness on Plaintiff’s receipt, exhibit A and also signed as a witness in Co Defendant’s indenture, exhibit 8. This same witness was the one who was given a cheque to send to the Plaintiff as a refund of his down payment and which the latter refused and said his Lawyer would get in touch.
PW3, a bailiff of this court testified that in his attempt to serve the 3rd Defendant with a writ of summons, they met in the house of the Co Defendant who asked them what their mission was. According to the witness, there was some discussion about some sand and stones being destroyed. The witness said that Co Defendant stated that he did not want any trouble and that he bought the land for his son and fiancée ie the 3rd Defendant. Thereafter he served the 3rd Defendant with the writ on 18th July 2000. The conversation with the Co Defendant was not challenged during cross examination. Exhibit 8, the Co Defendant’s purported document of title was executed on 22nd July 2000. Clearly then, at least at the time the attempt was being made to pass title to him, he had notice of the Plaintiff’s interest in the land which he was trying to enforce through a court action.
Prior to this, the Co Defendant did not provide the court with any investigations he made as a prudent purchaser to find out if there were any issues with the land. If indeed, he did not make enquiries from DW2 who incidentally was the middleman in both the transaction with Plaintiff and with him, then he did not act in a prudent manner. It has been stated that the level of prudence expected depend on the circumstances of each case. We are satisfied that in the circumstances of this case merely doing an “an underground search” of the 1st Defendant’s title was not enough. See the case of Hydrafoam Estates (GH) LTD v Owusu (per his lawful attorney) OKINE & Others [2013-2014] SCGLR 1117 @ 1130
Grounds (iv) and (v) of the additional grounds of appeal succeed and are upheld.
From all the foregoing, we conclude that the present appeal has merit and therefore succeeds. The order of the trial judge granting the Co-Defendant title to the disputed land is hereby set aside. The 1st Defendant is to convey the disputed property to the Plaintiff by executing the necessary documentation to that effect.