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Land – Agreement - Contract of
Sale – Termination - Specific
performance - Damages for breach
– Trespass - Perpetual
injunction – Fraud - Bonafide
purchaser for valuable -
Whether or not Judgment is
against the weight of evidence.
HEADNOTES
The respondent’s case is that
appellant agreed to sell his
piece or parcel of
land at Oyarifa – Accra to
him at an agreed purchase price
of Forty-two Million old Cedis
(¢42million). The respondent
averred that it was agreed that,
he paid a deposit of Four
Million cedis (¢4million) at the
rate of ¢4,500 to the English
Pound (£) as part-payment for
the land and a receipt was
issued . The said amount was to
be used by the first appellant
to prepare an Indenture to
convey the land to him. This
sale Receipt was signed by both
the Vendor and the Purchaser and
witnessed by two witnesses.
The respondent averred that
he had earlier deposited sand
and stone on the land in
dispute. The respondent had to
retrieve the outstanding balance
of the purchase price and paid
it into the joint account of the
first and second appellants. The
respondent was forced in the
circumstances to institute a
fresh writ at the High Court
which was amended claiming
specific
performance of the said
agreement,
damages
for breach of contract in
lieu of or in addition to
specific performance, general
damages for
trespass,
an order setting aside the
purported sale to the
co-defendant/appellant and
perpetual
injunction. After the
institution of the High Court
action, the respondent joined
the co-defendant/appellant. On
the other hand, the appellants
(first, second, third defendants
and co-defendant) pleaded that
the first appellant was in dire
need of money to solve some
pressing issue and so agreed to
sell his land to the
respondent. However, time was
of the essence of the
agreement
to sell the land. The
appellants averred in their
Statement of Defence that the
agreed purchase price was Eight
Thousand, Seven Hundred and
Fifty British Pounds (£8,750.00)
and the full purchase price was
to be paid within three months.
Further, the first and second
appellants gave their bank
account details to the
respondent to pay in the agreed
purchase price within the
stipulated period. They further
averred that the respondent
failed to pay the balance as
agreed and consequently, the
first appellant
terminated the agreement,
negotiated with the
co-defendant/appellant and sold
the land in dispute to him.
According to the first
appellant, he duly informed the
respondent about the
re-sale
and tried to refund his
money to him but he declined
it. The 1st
appellant further stated that
the respondent’s inability to
fully pay for the land hampered
his inability to provide an
accurate indenture. Upon hearing
the parties and their witnesses,
the learned trial High Court
Judge dismissed the respondent’s
claim and entered judgment for
the co-defendant/appellant on
his counterclaim. The
respondent appealed to the Court
of Appeal, the Court reversed
the judgment of the High Court
and granted the Respondent’s
claim and dismissed the
co-defendant’s/appellant’s
counterclaim. The appellants
have lodged the instant appeal
before this Court, seeking the
reversal of the judgment of the
Court of Appeal.
HELD
On the whole, we find no merit
in this appeal as the Court of
Appeal adequately resolved all
the issues in accordance with
law. We therefore dismiss the
appeal
STATUTES REFERRED TO IN JUDGMENT
Conveyancing Act, 1973, Act 175
Evidence Act, 1975, NRCD 323.
CASES REFERRED TO IN JUDGMENT
Okine & Anor v Amoah VI
[2013-2014] 2 SCGLR 1358
Republic v Conduah; Ex parte
Aaba (Substituted by) Asmah
[2013-2014] 2 SCGLR 1032
Djin v Musah Baako [2007-2008] 1
SCGLR 686
Akufo-Addo v Catheline [1992] 1
GLR 377 SC,
Abbey & Ors. v Antwi V [2010]
SCGLR Holding (4)
Koglex Ltd. (No.2) v Field
[2000] SCGLR 175
Kotey v Koletey [2005-2006]
SCGLR 368
Banahene v Shell Ghana Limited
[2017-2018] 2 SCGLR 338
Edward Nasser & Co. Ltd. V
McVroom & Another [1996-97]
SCGLR 468
Amuzu v Oklikah [1998-99] SCGLR
141
Appeah & Another v Asamoah
[2003-2004] 1 SCGLR 226
Gautret v Egerton, 15 WR 638
SS Pleiades & Page v SS Jan &
Lesser [1891] AC 259 65 LT 169
60 LJ PC 59
Seidu v Mohammed v Saanbeye
Kangberee [2012] 2 SCGLR 1182
Susan Bandoh v Dr. Mrs. Maxwell
Apeagyei-Gyamfi and Alex Gyimah
[2019] DLSC 6502
Appeah v Asamoah [2003-2004] 1
SCGLR 226 Holding (4);
Dzotepe v Hahormene III
[1987-88] 2 GLR 681, SC;
Okofo Estates Ltd. V Modern
Signs Ltd. [1996-97] SCGLR 233
Amuzu v Oklikah (supra) and
Seidu v Mohammed v Saanbaye
Kangberee [2012] 2 SCGLR 1182
Tetteh & Another v Hayford
(Substituted) by Larbi & Accker
[2012] SCGLR 417 Holding (4);
Sasu v Amua-Sakyi [1987-88] 2
GLR 221
Darkey v Lartey [1963] 1 GLR 62
SC
Hydrafoam Estates (Gh) Ltd. v
Owusu [2013-2014] 2 SCGLR 1117
Holding (3) at page 1119
Kusi & Kusi v Bonsu [2010] SCGLR
60 Holding (8);
Mahama Hausa v Baako Hausa
[1972] 2 GLR 469
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
HONYENUGA, JSC:-
COUNSEL
Y. OPOKU-ADJAYE FOR THE
DEFENDANTS/ CO-DEFENDANTS/
RESPONDENTS/ APPELLANTS.
RAY APPIAH AMPONSAH FOR THE
PLAINTIFF/APPELLANT/RESPONDENT
HONYENUGA, JSC:-
Introduction
On the 25th day of
November, 2020, we delivered
judgment in this appeal but
deferred our reasons, which we
now give. We unanimously
dismissed the appeal and
affirmed the judgment of the
Court of Appeal.
The parties in this appeal would
finally see the end of
litigation for having been
litigating in the Courts of
competent jurisdiction for about
twenty years. This appeal is
from the Judgment of the Court
of Appeal dated the 16th
day of February, 2017. The
appellants (that is the
defendants/co-defendant/respondents/appellants)
were the defendants and
Co-defendant respectively in the
High Court. The
Co-defendant/respondent/appellant
was a counterclaimant in the
trial court and succeeded in his
Counterclaim but lost on appeal
at the Court of Appeal when the
respondent herein (that is the
plaintiff/appellant/respondent)
appealed against the judgment of
the trial High Court. In this
appeal, the first, second and
third
defendants/respondents/appellants
together with the
co-defendant/respondent/appellant
would be designated as the
first, second and third
appellants and the
co-defendant/appellant
respectively. The
plaintiff/appellant/respondent
would be referred to as the
respondent.
Background to the Appeal
The respondent’s case is that on
the 14th October
1999, the 1st
appellant agreed to sell his
piece or parcel of land situate
lying and being at Oyarifa –
Accra to him at an agreed
purchase price of Forty-two
Million old Cedis (¢42million).
The respondent averred that it
was agreed that, he paid a
deposit of Four Million cedis
(¢4million) at the rate of
¢4,500 to the English Pound (£)
as part-payment for the land and
a receipt dated 14th
October 1999 was issued to him.
The said amount was to be used
by the first appellant to
prepare an Indenture to convey
the land to him.
The respondent further averred
in his statement of claim that
the receipt issued to him is
entitled “LAND SALE RECEIPT”,
which expressly stated that the
first appellant had relinquished
his interest in the land and it
states:-
“This is to certify that I the
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 1397 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 from all encumbrances
whatsoever and as free from any
family on tribal claims as
possible.
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 acknowledgment of which I
hereby give this receipt.
Dated at Accra this 14th
day of October 1999”.
This sale Receipt was signed by
both the Vendor and the
Purchaser and witnessed by two
witnesses.
He pleaded that the second
appellant, the wife of the first
appellant who is his agent went
to the respondent’s Solicitor
and assured him that an
Indenture was being prepared to
enable the land to be conveyed
to the respondent. He further
pleaded that the second
appellant provided the
particulars of her bankers to
the respondent to pay the
outstanding balance of the
purchase price when an Indenture
was executed between the parties
but a demand of ten million
cedis (¢10million) was rather
made on the respondent. Instead
of presenting an Indenture, the
second appellant rather
threatened to sell the land to
the third appellant. As a
result, the respondent caused a
writ to be issued at the Circuit
Court and paid the outstanding
purchase price of Thirty-Eight
Million old Cedis (¢38million)
into Court but had to
discontinue the action.
The
respondent averred that he had
earlier deposited sand and stone
on the land in dispute. The
respondent had to retrieve the
outstanding balance of the
purchase price and paid it into
the joint account of the first
and second appellants. The
respondent was forced in the
circumstances to institute a
fresh writ at the High Court
which was amended claiming
specific performance of the said
agreement, damages for breach of
contract in lieu of or in
addition to specific
performance, general damages for
trespass, an order setting aside
the purported sale to the
co-defendant/appellant and
perpetual injunction. After the
institution of the High Court
action, the respondent joined
the co-defendant/appellant
because he pretended that he was
settling the land dispute
between him and the third
appellant, who scattered the
respondent’s sand and stone
deposited on the land, but the
co-defendant/appellant turned
round to state that he had
rather purchased the land in
dispute.
On the other hand, the
appellants (first, second, third
defendants and co-defendant)
pleaded that the first appellant
was in dire need of money to
solve some pressing issue and so
agreed to sell his land to the
respondent. However, time was
of the essence of the agreement
to sell the land. The
appellants averred in their
Statement of Defence that the
agreed purchase price was Eight
Thousand, Seven Hundred and
Fifty British Pounds (£8,750.00)
and the full purchase price was
to be paid within three months.
Further, the first and second
appellants gave their bank
account details to the
respondent to pay in the agreed
purchase price within the
stipulated period. They further
averred that the respondent
failed to pay the balance as
agreed and consequently, the
first appellant terminated the
agreement, negotiated with the
co-defendant/appellant and sold
the land in dispute to him.
According
to the first appellant, he duly
informed the respondent about
the re-sale and tried to refund
his money to him but he declined
it. The 1st
appellant further stated that
the respondent’s inability to
fully pay for the land hampered
his inability to provide an
accurate indenture. The
co-defendant/appellant then
proceeded to lodge a
counterclaim for a declaration
of title to the land in dispute
as a bonafide purchaser for
value and perpetual injunction
restraining the respondent, his
agents and assigns from
interfering with his land.
Upon hearing the parties and
their witnesses, the learned
trial High Court Judge dismissed
the respondent’s claim and
entered judgment for the
co-defendant/appellant on his
counterclaim. The respondent
appealed to the Court of Appeal
and on the 16th
December 2017, the Court
reversed the judgment of the
High Court and granted the
Respondent’s claim and dismissed
the co-defendant’s/appellant’s
counterclaim.
The
appellants have lodged the
instant appeal before this
Court, seeking the reversal of
the judgment of the Court of
Appeal. The appellant has
thus filed a sole ground of
appeal as follows:-
Ground of Appeal:
The
Judgment is against the weight
of evidence.
It is trite that an appeal is by
way of rehearing and this Court
in
Okine & Anor v Amoah VI
[2013-2014] 2 SCGLR 1358
and other respectable
authorities succinctly stated
that by this, an appellant is in
a good position as the trial
Court to determine the real
issue in controversy from the
pleadings and evidence and to
draw inferences from the
specific fact that are
established. Further, a ground
of appeal which involves such an
omnibus ground therefore invites
this court to look at the facts
on record to ascertain whether
the conclusions reached by the
Court of Appeal are borne out or
not and to arrive at its own
conclusions. In
Republic v Conduah; Ex parte
Aaba (Substituted by) Asmah
[2013-2014] 2 SCGLR 1032
Holding (2), this Court held
that the effect of an appeal on
the ground that “the judgment is
against the weight of evidence”
was to give jurisdiction to the
appellate court examine the
totality of the evidence before
it and come to its own decision
on the admitted and undisputed
facts. By that ground of
appeal, the appellant was
implying that there were pieces
of evidence on record which, if
applied properly and correctly,
could have changed the decision
in his favour, or that certain
pieces of evidence had been
wrongly applied against him.
The onus in such instance was on
the appellant to clearly and
properly demonstrate to the
appellate court, the lapses in
the judgment being appealed
against. See
also
Djin v Musah Baako [2007-2008] 1
SCGLR 686 at 687 holding (1),
Akufo-Addo v Catheline [1992] 1
GLR 377 SC, Abbey & Ors. v Antwi
V [2010] SCGLR
Holding
(4) and a host of other
authorities.
Before we proceed, it must be
stated that on the 14th
July, 2020, Counsel for the
respondent sought leave and was
granted to withdraw the
preliminary legal objections to
the notice of appeal filed on
the 9th March, 2020
and same was struck out.
On this ground, the complaint of
Counsel for the appellants is
that the Court of Appeal was
wrong to have ordered specific
performance for the contract of
sale in favour of the respondent
who failed to pay for the plots
of land when he was supposed to
do so.
Specific performance is a remedy
available to a party if the
other party refuses to complete
the sale. It is an equitable
remedy which is granted at the
discretion of the court.
Specific performance is the
principal remedy for breach of
contract for the sale of land.
It is noted that there is no
doubt that the two lower courts
i.e. the High Court and the
Court of Appeal after reviewing
the authorities, acknowledged
that specific performance would
lie in respect of section 3(2)
of the
Conveyancing Act, 1973, Act 175
which permits the rules of
equity relating to
unscionability, fraud, duress
and part-performance to override
the requirements of section 2 of
Act 175. The trial Court, on
pages 332 to 333, held as
follows:
“In the instant, the 1st
Defendant acknowledged receipt
of the sum of Four Million Cedis
paid by the plaintiff in Exhibit
A. The exhibit among others
state that the amount
represented “part-payment of the
purchase money”, covering the
sale of the disputed land to him
by the 1st
Defendant. I accordingly hold
that the payment of the money
constituted sufficient act of
part performance which could
justify a grant of an order of
specific performance”.
However, the trial court, after
holding that specific
performance would lie concluded
at page 336 of the record of
appeal, thus:-
“On the available evidence, the
plaintiff did not show himself
ready desirous, prompt and eager
to perform his portion of the
bargain. I shall accordingly
refuse the order of specific
performance and same is
dismissed”.
For the learned Justices of the
Court of Appeal, they after
citing
Koglex Ltd. (No.2) v Field
[2000] SCGLR 175
came to the conclusion at page
79 (Volume 111) of the record of
appeal that the money paid by
the respondent (plaintiff)
constituted an act of part
performance for which an order
of specific performance would
lie. The learned Justices
further declared thus:-
“Thereafter instead of making a
finding on whether or not the
plaintiff was entitled to the
remedy of specific performance
sought, the court suo motu went
into a discussion about the
failure of the plaintiff to pay
the purchase price on time”.
Indeed, Koglex Ltd. (No. 2) v
Field supra, this Court held
in holding (4) in a review of
the majority decision thus:-
“(4) 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. And contrary to
the decision of the majority of
the Supreme Court, there had
been a trend towards accepting
that payment of money could be a
sufficient act of part
performance to support an order
of specific performance ….”
Acquah JSC (as he then was and
of blessed memory) at page 178
of the report succinctly stated
as follows:-
“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 such as to
indicate, on a balance of
probabilities, that they were
performed in reliance of a
contract with the defendant”
See also
Kotey v Koletey [2005-2006]
SCGLR 368 Holding
(1).
We are in agreement with the
finding and holding of the
learned Justices of the Court of
Appeal that specific performance
should lie against the
appellants for it is clear from
the evidence on record that the
payment of Four Million cedis as
stated in the Exhibit A, the
comprehensive receipt
constituted an act of part
performance on the part of the
respondent.
Furthermore, a perusal of the
pages 333 to 335 of the Judgment
of the trial High Court revealed
that the learned trial Judge did
not evaluate the evidence on
record before coming to his
conclusion thus:-
“From Exhibit A and the evidence
generally, there is little
indication as to when the full
purchase price was to be paid.
According to the statement of
defence, it was to be paid
within three months. This the
plaintiff denied”.
The respondent testified that
the amount was to be paid upon
the preparation and execution of
the title documents. It is
noteworthy that the first
appellant did not testify in
these proceedings, neither did
anybody testify on his behalf.
The allegations in the statement
of defence having been denied,
the onus shifted onto the first
Defendant to prove same by
acceptable evidence. See
Section 11(1), 12 and 14 of the
Evidence
Act, 1975, NRCD 323.
Since pleadings do not
constitute evidence, I hold the
allegations of the payment
within three months unproven.
The respondent testified that
the full purchase price was to
be made upon the preparation and
execution of the indenture. In
answer to a question in
cross-examination, he replied:-
“the onus shifted onto the 1st
Defendant to provide a correct
indenture before full payment
was made by me”.
Having earlier satisfied himself
through a search (Exhibit C)
that the land belonged to the 1st
appellant, the respondent
explained why he still did not
make full payment in the
following words:-
“because 1st
Defendant did not have ….
correct indenture”
At page 335 of the record of
appeal, the learned trial judge
continued as follows:-
“From Exhibit C, however, I am
of the view that nothing
prevented the plaintiff from
making prompt payment of the
full purchase price if, he was
minded to. This I fix at the
end of December 1999 given the
fact that the plaintiff claimed,
money was not his problem”.
A perusal of the judgment of the
Court of Appeal reveal that it
thoroughly reviewed the evidence
and the judgment of the trial
Court from pages 70, 71, 72 and
75 of the record of appeal
(Volume III) and upheld the
respondent’s ground of appeal
thus:
“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 it is
hereby upheld”.
Additionally, Counsel for the
appellants admitted the
respondent’s case at page
fourteen (14) paragraph 19 of
his Statement of Case and
confirms the Court of Appeal’s
findings that the indenture
given to the respondent was not
proper and that the respondent’s
refusal to accept the Deed of
Gift Exhibit ‘D’ instead of a
conveyance for the sale
transaction is commonsensical.
We have verified the said
paragraph 16 and found the
statement attributed to learned
Counsel to be correct.
Moreover, the refusal of the
respondent to pay fully for the
land must be attributed to the
failure of the first and second
appellants who were to provide
the respondent with Exhibit ‘D’
an Indenture and not Exhibit
‘C’. It is on record that the
respondent refused to sign
Exhibit ‘D’ upon the advice of
his Lawyer because it was a deed
of gift and not of a deed of
sale. It is also on record that
the respondent later paid
Thirty-Eight Million old Cedis
(¢38million) into the bank
account of the first and second
appellants but they refused to
accept same. The trial High
Court was wrong in fixing
December 1999 as the reasonable
time the respondent should have
paid the balance of the money
due. It is in respect of that
that we adopt the finding and
holding of the Court of Appeal
on page 80 of the record of
appeal (Volume III) that:-
“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 1st
defendant, that, upon 1st
Defendant’s refusal to accept
the balance due, he further paid
an amount of Thirty-Eight
Million Cedis (¢38,000,000.00)
into the bank account of the 1st
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”.
In the Koglex case
(supra), the Supreme Court held
thus:-
“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”.
A perusal of Exhibit ‘A’
indicate that indeed from the
evidence on record, the first
appellant breached the agreement
to submit a proper indenture to
the plaintiff to enable him
effect the balance of the money
due and in any case, the
respondent did pay the balance
agreed upon. The first
appellant rather breached the
agreement and fraudulently sold
the same land to the
co-defendant/appellant. It is
to these that the Court of
Appeal rightly concluded that:
“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 plaintiff”.
In the circumstances we would
reject the submission of Counsel
for the appellants and the
conclusion reached by the trial
Court that payment by the
respondent on the 29th
June 2000 was unreasonable
having regard to the decline of
the cedi in relation to major
currencies.
Furthermore, by sections 5 and 6
of the Evidence Act, 1975 (NRCD
323) and the authorities, the
failure of the plaintiff to
plead fraud did not preclude the
court from considering it, if
there was evidence to that
effect on the record. The
principle is that, even if fraud
was not pleaded, but evidence is
admitted on the record without
objection and the evidence is
not rendered inadmissible on
legal grounds, the court cannot
ignore it unless it will result
in a miscarriage of justice. In
the recent decision of this
Court in
Banahene v Shell Ghana
Limited [2017-2018] 2 SCGLR 338
at 371, per Benin JSC,
where negligence was not
pleaded but because it arose
from the record and was admitted
into evidence, negligence was
considered. The learned Justice
of the Supreme Court, succinctly
stated the principle of law
after quoting sections 5 and 6
of the Evidence Act, 1975 (NRCD
323) as follows:-
“Moreover, in cases where fraud
was not pleaded but the record
disclosed that some evidence was
led on fraud at the hearing of
the case, the court accepted and
relied on the evidence to
establish fraud. See the cases
of
Edward Nasser & Co. Ltd. V
McVroom & Another [1996-97]
SCGLR 468; Amuzu v Oklikah
[1998-99] SCGLR 141, Appeah &
Another v Asamoah [2003-2004] 1
SCGLR 226; Gautret v Egerton, 15
WR 638. The
principle deducible from these
cases is applicable to an issue
founded on negligence, that even
if it is not pleaded, but
evidence is admitted on the
record without objection and the
evidence is not rendered
inadmissible on legal grounds,
the Court cannot ignore it,
unless it will result in a
miscarriage of justice.
The position is not different
from what has obtained in
England. For instance, in the
case of
SS Pleiades & Page v SS Jan &
Lesser [1891] AC 259 65 LT 169
60 LJ PC 59, it was held
that where negligence was not
raised on the pleadings and no
evidence of it was led by either
party at the hearing, it could
not be raised for the first time
at the final appellate court”.
See also
Seidu v Mohammed v Saanbeye
Kangberee [2012] 2 SCGLR 1182
at 1185.
A perusal of the record of
proceedings indicate that fraud
was not pleaded but arising out
of the evidence on record it
could be deduced that the
appellants were fraudulent in
dealing with the respondent in
the sale of the property. There
is sufficient evidence on record
that the 1st
appellant knew very well that he
had sold the land to the
respondent and issued a
comprehensive purchase receipt
Exhibit ‘A’ which virtually
transferred the property to the
respondent and yet without
producing the correct indenture
to enable the balance of the
purchase money to be paid to
him, and to his knowledge that
the respondent had paid the
balance of the purchase price
into his account and later into
court, he fraudulently sold the
land to the
co-defendant/appellant.
Further, an intending purchaser
must make reasonable enquiries
in respect of the property he
seeks to acquire. This court
speaking through Marful-Sau JSC
in
Susan Bandoh v Dr. Mrs. Maxwell
Apeagyei-Gyamfi and Alex Gyimah
[2019] DLSC 6502 at
page 11, stated the law
succinctly as follows:-
“Notice does not mean only
notice of registration of the
title but also notice of
possession by the first
purchase, grantee or lessee or
their agent as the case may be.
That is why an intending
purchaser must make reasonable
enquiries in respect of the
property he seeks to acquire.
This involves legal searches at
the land registry, but more
critically it involves a
physical inspection of the land
to ensure it is free from
encumbrances”.
In the instant case, the
co-defendant/appellant stated at
page 233 of the record of appeal
(Volume I) as follows:-
“At the time of purchase, I did
not know plaintiff, there was
sand and gravel on it, but I did
not know it belonged to the
plaintiff”.
It is thus clear that the
co-defendant/appellant did not
make reasonable enquiries and
physical inspection of the land
to ensure that it is free from
encumbrances before he purchased
it. Had he done critical
enquiries about the person who
deposited the sand and stones
(Exhibit E3) on the land, he
would have realized that they
belonged to the respondent and
therefore the land was
encumbered.
It is also on record that after
the sale to the
co-defendant/appellant, the
receipt offered him did not
acknowledge the price of the
land and the subsequent
indenture prepared thereon is a
deed of gift marked as Exhibit
‘8’ instead of a sale. From the
record of appeal it is also
clear that Exhibit 9, the land
title certificate issued to the
co-defendant/appellant is also
fraudulent.
Fraud
vitiates everything – see
Appeah
v Asamoah [2003-2004] 1 SCGLR
226 Holding (4); Dzotepe v
Hahormene III [1987-88] 2 GLR
681, SC; Okofo Estates Ltd. V
Modern Signs Ltd. [1996-97]
SCGLR 233 at 253; Amuzu v
Oklikah (supra) and Seidu v
Mohammed v Saanbaye Kangberee
[2012] 2 SCGLR 1182 at 1185
and other authorities.
Since fraud vitiates everything,
the sale of the land to the
co-defendant/appellant by the
first appellant is null and
void.
Furthermore, land once sold by a
grantor cannot resell same to
another person since he had
divested himself of his
interest. See
Tetteh
& Another v Hayford
(Substituted) by Larbi & Accker
[2012] SCGLR 417 Holding (4);
Sasu v Amua-Sakyi [1987-88] 2
GLR 221 and Darkey v Lartey
[1963] 1 GLR 62 SC.
In the instant case, it is clear
that the first appellant having
sold the land to the respondent
had divested himself of his
interest in the property and
therefore had nothing to have
sold to the
co-defendant/appellant. In
effect, the doctrine of nemo
dat quod non habet applies.
The sale and registration of
co-defendant/appellant’s title
in Exhibit 9 the Land Title
Registration is null and void
and of no legal effect.
Counsel for the appellants
criticized the Court of Appeal
for holding that at the time the
Co-defendant/appellant purchased
the property, he was aware that
there was a suit in respect of
the subject matter at the High
Court. It is noted that the
Co-defendant/appellant relied on
the defence of a bona fide
purchaser without notice. The
plea of
bonafide purchaser for valuable
consideration is a defence
which must be proved by
supporting evidence to the
satisfaction of the Court. This
Court as rightly cited by the
Court of Appeal in their
judgment in
Hydrafoam Estates (Gh) Ltd. v
Owusu [2013-2014] 2 SCGLR 1117
Holding (3) at page 1119
stated the law as follows:-
“(3) Where a party put up
the plea of bonafide purchaser
for value without notice of any
adverse title, the onus would
squarely be on that party who
had pleaded the same. Since the
plea was to be considered as an
absolute, unqualified and
unanswerable defence, if upheld
by a Court of law, the law would
require that evidence in support
of the plea must satisfy the
court …”
See also
Kusi & Kusi v Bonsu [2010]
SCGLR 60 Holding (8); Mahama
Hausa v Baako Hausa [1972] 2 GLR
469, 487. After
a careful perusal of the
evidence on record, we are
satisfied that the Court of
Appeal reviewed the evidence and
rightly dismissed the
Co-defendant/appellant’s plea of
bonafide purchaser for value
without notice of any adverse
title.
Conclusion
On the whole, we find no merit
in this appeal as the Court of
Appeal adequately resolved all
the issues in accordance with
law. We therefore dismiss the
appeal.
C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
G.
PWAMANG
(JUSTICE OF THE SUPREME COURT)
G. TORKORNOO
(MRS.)
(JUSTICE OF THE SUPREME COURT)
PROF. H. J. A. N.
MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
Y. OPOKU-ADJAYE FOR THE
DEFENDANTS/
CO-DEFENDANTS/RESPONDENTS/APPELLANTS.
RAY APPIAH AMPONSAH FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
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