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JUDGMENT
TWUMASI, J.A.
By paragraph 3 of his
Statement of Claim the respondent to this appeal averred
that on the 5th January, 1991 he purchased a piece of
land at East Legon and obtained a Land Title Certificate
No. GA 8989 Vol. 54 Folio 106 with an approximate area
of 0.298. The respondent claimed that he purchased the
land from a family called "Wofa Trebi Family" of Teshie
Lenshie whose head of family was one Ebenezer Afutu. The
respondent admitted in cross-examination that he
appointed one Captain George Acquah to act for him in
all matters affecting the land, but denied instructing
the said Acquah to sell the land. When respondent was
asked in cross-examination as to whether he conducted a
search at the Lands Valuation Board his answer was as
follows:—
"Yes. But I was told
the land belonged to Obodaifio who gave same to
Defendant. There was judgment in a dispute over the land
and there had to be a Deed of Surrender giving the land
to Afutu.
Q: You were not given
a report
A: No.
The respondent stated
that he purchased two plots and that only one of the two
was in dispute before the court. The cross-examination
of the respondent continued as follows:—
Q: When the dispute
started Afutu informed Captain Acquah that the
defendants are the rightful owners?
A: Not correct. I am
not aware of that.
Q: I am suggesting to
you that Afutu gave another plot to your brother through
Captain Acquah?
A: I am not aware of
that.
It appears from the
record that the instant witness referred to as
respondent was giving evidence as the holder of a power
of attorney from the real purchaser/plaintiff in the
action. The claim made by the appellant was that at the
time the respondent took steps to process his title to
the land at the Land Title Registration Department, he
was fully aware that the land had been sold to one Yaw
Darko and title had been vested in the said Darko from
whom they derived title by a deed of assignment,
claiming further that the said Darko acquired the land
from the Obodae family of Accra. PW1 testifying on
behalf of the respondent stated at page 72 of the record
of appeal and this averment had not been challenged by
the appellants over the true ownership of the land, the
Obodae family had lost the disputed land to the Wofa
Trebi family headed by Afutu afore-mentioned and that
the said Afutu had asked the appellants to attorn tenant
to the Wofa Trebi Family and they had complied and paid
for all expenses and the costs of all things including
cement blocks and fence wall erected on the land by or
on behalf of the respondent.
In his judgment the
learned trial Judge, just held the view that the Wofa
Trebi Family headed by Afutu had at the time it
purported to grant the disputed land to the appellants,
the respondent had already purchased the land from the
same family and therefore the transaction infringed the
legal maxim "nemo dat quod non habet", and consequently
was void and of no legal effect. The hottest ground of
appeal argued by the appellant's Counsel was that the
learned trial judge erred in his finding that the Obodae
family lost title to the land to the Wofa Trebi family
in the absence of positive evidence of the alleged
judgment. Counsel submitted that if there was no
judgment by a court of competent jurisdiction, then the
alleged setting aside of the title of the appellant to
his land would have been unsupported in law.
Although there was no
paragraph in the pleadings where any judgment could be
found and no issue of fact arose about it in the Summons
for Directions. As I have already stated in this
judgment, a witness of the respondent, PW1, testified to
the effect that the Obodae family from whom the grantors
of the appellants claimed title lost such title in a
court case to the Wofa Trebi family who sold the land to
the respondent. Since this piece of unpleaded evidence
was not objected to by Counsel for the appellants, the
learned trial judge took it into consideration. He
therefore concluded that since the appellants
regularised their title at a time subsequent to the time
the respondent purchased the land from the Wofa Trebi
Family that transaction was ineffective and could not
pass title. The position notwithstanding, I have been
unable to reconcile with my mind on the issue about this
controversial judgment. The reason is that PW1 who spoke
of this judgment stated that it was Afutu who told him
that there had been a court case in which a judgment had
been delivered against the Obadae Family. Also it was
this same Afutu man who according to the appellants
asked them to regularise their title which they did by
making certain payments to attorn tenant to his family
and to settle expenses made by the respondent's agent
Captain Acquah even though the respondent denied having
authorized any such agency work by the Captain. The
question that bothers my mind is:
How could Afutu give
land to the respondent, assist him to register its title
at the Lands Title Registration Office for a certificate
and ask the appellants to regularise their title to the
same land? I am therefore persuaded by the submissions
of Counsel for the appellants that the judgment
delivered by the trial judge in the instant case left
vital issues unanswered and they are:
(i) Is the land given
by Afutu to the plaintiff the same as the land George
Darko assigned to the Defendant?
(ii) Has any court ever
adjudicated on any dispute affecting the land?
(iii) Was there any
judgment as alleged by Afutu.
(iv) Was there any
surrender of title executed after the judgment?
These questions need
urgent answers because although PW1 said he had tendered
the controversial judgment nothing on the record of
appeal supports this claim and at the hearing of this
appeal we have not seen any judgment exhibit having been
tendered at the trial. For the forgiving reasons I hold
the views that the trial was unsatisfactory. The appeal
is allowed. The judgment of the court below is hereby
set aside.
P.K. TWUMASI
JUSTICE OF APPEAL
OWUSU-ANSAH, JA:
I agree
P.K. OWUSU-ANSAH
JUSTICE OF APPEAL
ANIM, JA:
I also agree.
S.Y. ANIM
JUSTICE OF APPEAL |
