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J U D G M E N T
ATUGUBA, J.S.C.:
This is a case of much intrigue
and unconcern for rectitude.
It is undisputed that the
property in dispute was the
self-acquired property of the
late Alhaji Mahmoud Mustapha
Ali. Upon his death the house
E.47/12 situate at Nima, Accra
descended unto his children both
natural and adopted. The said
house has purportedly been sold
to the respondent by the
deceased’s eldest son Braimah
Mahmoud (D.W.1) and his two
uterine sisters, Rakia Mahmoud
and Salimatu Mahmoud, without
the knowledge and consent of
their two brothers (by
adoption), Abubakar Laye and Laye
Broke.
The plaintiff/respondent, who
appears to be a straight forward
person, unlike his father
testified that his two aunts,
Rakia Mahmoud and Safiratu
Mahmoud, thumb printed the sale
document prepared by his father
Braimah Mahmound to enable them
benefit there from since they
had missed out on another
earlier sale by their brother.
It is these same characters who
among others have authorised the
plaintiff/respondent to bring
the action to recover this
property, culminating in this
appeal.
Were the matter to end there,
this court being also a court of
conscience could not lend its
hands to such an actio ex turpi
causa. But there are innocent
souls involved namely the two
adopted brothers.
From the evidence on record the
issue between the parties
revolves around the interest and
right of the adopted children in
the disputed property. On the
evidence they are also elders of
the deceased’s family. It is
said that these adopted children
were given some undeveloped
portions of land as their share
of the estate. That contention
however founders upon the
inoperativeness of exhibit “A”,
a declaration by the deceased
owner as to the character,
status and disposition of the
disputed property. The
respondent was content to buy
the property from the
recalcitrant Braimah Mahmoud,
upon his mere ipse dixit that
the property belonged to him and
his two said sisters who had
consented to the sale thereof.
This she did without recourse by
way of inquiry, even of the said
two sisters whom she knows very
well as well as their family.
This is not what a prudent
purchaser is expected to do. In
BOATENG v. DWINFOUR (1979)
G.L.R. 360 C.A., at 366 Anin,
J.A. stated as follows: “The
general principle of equity is
that a purchaser is
deemed to have notice of all
that a reasonably prudent
purchaser would have discovered.
Thus where the purchaser,
like the plaintiff in his case,
had actual notice that the
property was in some way
encumbered, she will be held to
have constructive notice of all
that she would have
discovered if she had
investigated the incumbranmce….
……”
This is a hackneyed principle.
See AMUZU v. OKLIKAH (1998 –
1999) S.C.L.R. 141. For all the
foregoing reasons it is clear
that the purported sale of the
disputed property to the
defendant/appellant cannot hold.
The appeal is accordingly
dismissed.
W.
A. ATUGUBA
JUSTICE OF THE SUPREME COURT
G.
T. WOOD (MRS.)
JUSTICE OF THE SUPREME COURT
S. A. BROBBEY
JUSTICE
OF THE SUPREME COUIRT
J. ANSAH
JUSTICE
OF THE SUPREME COURT
R. T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Farouk Seidu for Appellant
Mr. Lawrence Tagoe for
Respondent.
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