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Property – Ownership –
Deed of gift’
– Sale - Declaration of title -
Recover possession - Head of
family - Arrears of rent and
utilities – Whether or not the
judgment is against the weight
of evidence - Whether or not the
appellant can succeed on her
claim of innocent purchaser
without notice - Whether or not
the appellant succeeded in
proving her claims - Rule 6 (4)
& (5) of the Rule 6 (4) & (5) of
the Supreme Court Rules, 1996 C.
I. 16
HEADNOTES
The
property was originally
owned by Abdulai Dagarti
(deceased), The disputed
property is being occupied by
tenants who are the 2nd
to 17th
defendants/appellants/
respondents. There is no dispute
that until the death of Abdulai
Dagarti the tenants were
attoning tenancy to him. The
deceased Abdulai Dagarti had a
sister, Hajia Hawawu who
survived him. It is alleged
Dagarti gifted this property to
the surviving sister Hawawu. A
sales transaction of the
property was alleged to have
gone on between Hawawu and the
plaintiff. The appellant made
attempts to
recover
possession of the property
after the alleged
sale. This attempt was
resisted by the 1st
respondent who is said to be the
head of
family of the deceased
Abdulai Dagarti. The appellant
therefore instituted an action
in the Circuit Court, The first
respondent resisted the
appellant’s claims and
maintained that the house was
not sold, the appellant’s claim
of ownership of the property is
fraudulent the property remains
the property of the family of
the deceased Abudulai Dagarti
who died intestate. The trial
Circuit Court relied on a
statutory declaration said to
have been made by the deceased
Abdulai Dagarti gifting the
property to Hawawu to hold that
Hawawu validly acquired the
property and could sell same.
The court therefore gave
judgment to the appellant and
granted her reliefs. The
respondents dissatisfied,
appealed to the Court of Appeal
which found the sale was not
valid, therefore declared the
said sale null and void and set
aside the judgment of the trial
Circuit Court.
HELD
It would be observed that though
this letter served notice on the
appellant that the sale is being
challenged she went ahead and
continued the transaction by
executing documents of the sale
after the letter just quoted was
written to her lawyer. The
payment receipt issued to the
appellant is dated 1st
June 2001 The deed of assignment
exhibit C, between Hawawu and
the appellant is dated 2nd
of April 2001. The statutory
declaration transferring the
property to the appellant is
dated June 2001. The appellant
definitely had notice of the
respondent’s position on the
alleged sale yet she went ahead
with the transaction. It lies
foul in her mouth to plead that
she is an innocent purchaser for
value without notice. We find no
merit in the appeal.
The appeal fails in
its entity and it is hereby
dismissed.
STATUTES REFERRED TO IN JUDGMENT
Rule 6 (4) & (5) of the Supreme
Court Rules, 1996 C. I. 16
Administration of Estate Act
1961, Act 63.
Evidence Act, 1975 (NRCD323)
CASES REFERRED TO IN JUDGMENT
Mondial Veneer (Gh) Ltd. V Amuah
Gyebu XV [2011] 1 SCGLR 466
Garnett, In re; Gandy v
Macauly(1885)31 Ch D 1
Fosua & Adu Poku v Dufie (Decd)
Adu Poku Mensah [2009]SCGLR310
In Re Krah (Decd); Yankyeraah v
Osei-Tutu [189-90] 1 GLR 638, SC
Tabiri [1987-88] 1 GLR 360, SC
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
DORDZIE (MRS.) JSC:-
COUNSEL
MOHAMMED OSMAN FOR THE
PLAINTIFFS/RESPONDENT/APPELLANTS.
COL. MAHAMA IDDRISU FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS.
ญญญญญญญญญญญญญญญญญญญญญญญญญ
DORDZIE (MRS.) JSC:-
The subject matter of litigation
which had culminated in this
appeal is a house described as
number E227/16 situate at
Mamobi, Accra. (This was the
numbering of the house at the
time of commencement of the
action).
The property was originally
owned by Abdulai Dagarti
(deceased), he died on 23rd
September 1981. The disputed
property is being occupied by
tenants who are the 2nd
to 17th
defendants/appellants/
respondents. There is no dispute
that until the death of Abdulai
Dagarti the tenants were
attoning tenancy to him.
The deceased Abdulai Dagarti had
a sister, Hajia Hawawu who
survived him. It is alleged
Dagarti gifted this property to
the surviving sister Hawawu. A
sales transaction of the
property was alleged to have
gone on between Hawawu and the
plaintiff/ respondent /appellant
(hereafter I will refer to the
parties as appellant and
respondents). The appellant made
attempts to recover possession
of the property after the
alleged sale. This attempt was
resisted by the 1st
respondent who is said to be the
head of family of the deceased
Abdulai Dagarti.
The appellant therefore
instituted an action in the
Circuit Court, Accra
in November 2006 praying for the
following reliefs:
1.
Declaration of title
to House N0. E227/16 Mamobi,
Accra.
2.
Recovery of possession of the
said house and
3.
Recovery of all
arrears
of rent and utilities.
The first respondent resisted
the appellant’s claims and
maintained that the house was
not sold, the appellant’s claim
of ownership of the property is
fraudulent the property remains
the property of the family of
the deceased Abudulai Dagarti
who died intestate.
The trial Circuit Court relied
on a statutory declaration said
to have been made by the
deceased Abdulai Dagarti gifting
the property to Hawawu to hold
that Hawawu validly acquired the
property and could sell same.
The court therefore gave
judgment to the appellant and
granted her reliefs. The
respondents dissatisfied,
appealed to the Court of Appeal.
The Court of Appeal found that
the main issue between the
parties was the question of
validity of the sale of House
N0. E227/16 to the appellant.
It found
the sale was not valid,
therefore declared the said sale
null and void and set aside the
judgment of the trial Circuit
Court.
The appellant has appealed to
the Supreme Court originally on
the sole ground that
the
judgment is against the weight
of evidence. Further grounds
of appeal were filed on behalf
of the appellant as additional
grounds upon leave granted by
the court on 2nd of
June 2020. The additional
grounds are:
1.
“That, exhibit “B” (at page 114
of the record of appeal) being
receipt obtained from
Appellant’s vendor Hajia Hawa
Awu had cleared any doubts as
evidence of Appellant’s
exclusive purchase of the
property without any rival claim
or challenge to the superior
legal right of the Appellant,
notwithstanding any oral
statement claiming same right.
Appellant cannot be said to have
knowledge of the purported
purchase by Suraju Abubakari nor
did she engage in any illegality
in the transaction.
2.
The Court of Appeal erred in
disregarding the authority of
exhibit “C” (particularly at
page 121-122 of the ROA) being
evidence of the Customary Grant
of the property by the Osu
Mantse Nii Dowuona V in 1964,
Abdulai Dagarti derived his
ownership from the grant and
therefore the right to dispose
of it in the manner deemed fit
and did so by gifting same to
his biological and only
surviving family member and
uterine sister by a Statutory
declaration (Deed of Gift) dated
1976 – Exhibit “D” at page 124
of the ROA, who in turn, sold it
to the Appellant for 65 million
old cedis - see exhibit “B” at
page 114.
3.
The Court of Appeal also erred
in coming to their final
decision against the Appellant
by not considering that fact
that Appellant was an innocent
purchaser in good faith for
value without notice of any
illegalities in the transaction
and/or even any judgment against
her vendor long after her
purchase of the property hence
cannot be estopped.”
The additional grounds 1 & 2
seriously offend Rule 6 (4) &
(5) of the Supreme Court Rules,
1996 C. I. 16, these grounds are
argumentative and narrative.
They are also vague and general
in terms.
Rule 6(4) & (5) of C. I. 16
provide: “4)
The grounds of appeal shall set
out concisely and under distinct
heads the grounds upon which the
appellant intends to rely at the
hearing of the appeal, without
any argument or narrative and
shall be numbered seriatim; and
where a ground of appeal is one
of law the appellant shall
indicate the stage of the
proceedings at which it was
first raised.
(5) No ground of appeal which
is vague or general in terms or
discloses no reasonable ground
of appeal shall be permitted,
except the general ground that
the judgment is against the
weight of evidence; and any
ground of appeal or any part of
it which is not permitted under
this rule may be struck out by
the Court on its own motion or
on application by the
respondent.”
The rules of this court do not
permit the additional grounds 1
and 2 in the form they have been
framed by the appellant, we deem
it appropriate to strike them
out and they are hereby stuck
out.
The original ground, that the
judgment is against the weight
of evidence, and additional
ground 3 are the grounds to be
considered in this appeal.
The original ground places the
duty on us to re-hear the matter
and come to our own conclusions
as to whether the evidence on
record supports the judgment of
the first appellate court and
whether the first appellate
court rightly interfered with
the findings of the trial court
The appellant to succeed on this
ground of appeal equally has the
duty
to demonstrate to us that the
findings of the Court of Appeal
are unreasonable in view of the
available evidence on record and
this court ought to interfere
with it to bring justice to her.
Submissions for and against the
grounds of appeal
It is the argument of
appellant’s counsel that the
Court of Appeal disregarded the
effect of some documentary
evidence. For example the
customary grant of the property
to Dagarti by the Osu Stool in
1964 which counsel described as
exhibit C. The statutory
declaration by Dagarti described
by counsel as ‘deed of gift’
whereby Dagarti gifted the
property to Hawawu his sister.
These documents, according to
counsel could have tilted the
balance of justice in favour of
the appellant if the Court of
Appeal had given consideration
to them. Moreover, Counsel
further argued, the Court of
Appeal mistook some of the
documentary evidence tendered by
the appellant for others and
that had led to the conclusions
it came to.
It is a further submission of
counsel for the appellant that
the Court of Appeal having
accepted that the letters of
Administration granted Hawawu
the vendor was validly obtained,
the court should have considered
her position as the
administrator of Dagarti’s
estate therefore, she could sell
the property. He based this
argument on provisions of the
Administration of Estate Act
1961, Act 63.
In arguing ground 3 of the
additional grounds of Appeal,
counsel maintained that
appellant is a purchaser who had
no notice of any fraudulent
activity related to the property
at the time of the purchase.
Counsel for the respondents in
his submission urged us not to
interfere with the findings of
the court of Appeal because they
are supported by the evidence on
record. He further submitted
that the documentary evidence
produced by the appellant at the
trial have contradictions and
inconsistencies. So is the viva
voce evidence of the appellant
and her witnesses. The trial
court erred in concluding that
the property was validly sold to
the appellant. The Court of
Appeal was therefore justified
in interfering with the findings
of the trial court and setting
aside its judgment.
In respect of the additional
ground 3 it is the position of
the respondents that the
evidence on record by the
appellant’s own witnesses point
to the fact that she was aware
that the property had been sold
earlier to PW2 Suraju Abubakari;
therefore she cannot rely on the
plea of innocent purchaser for
value without notice.
Issues for determination
The main issues that stand out
for determination by this court
are:
1.
Whether or not the appellant
succeeded in proving her claims
2.
Whether or not the appellant can
succeed on her claim of innocent
purchaser without notice
For the purposes of evaluating
the evidence we would sum up the
evidence adduced at the trial
Evidence of the Appellant:
The appellant was represented by
her son
Ahmed Osuman
as her attorney at the trial. He
gave a brief evidence which is
mostly documentary in proof of
the appellant’s claims. Contrary
to the averment in paragraph 4
of the appellant’s statement of
claim that she bought the
property in April 2001, the
evidence of her attorney has it
that she purchased the property
in 2000. The purchase price was
65 million in the old cedis
which is GHS 6,500. A payment
receipt was issued and was
tendered as exhibit B.
Other documents tendered by the
appellant are:
a)
exhibit C, a deed of
assignment dated 2nd
April 2001 executed
between the appellant and
Hawawu.
b)
Exhibit D, a statutory
declaration by Hawawu in support
of transfer of ownership of the
property to the appellant.
c)
Exhibit E has three separate
documents. It is the appellant’s
case that her vendor came by the
property by virtue of a deed of
gift in the form of a statutory
declaration made by Abdulai
Dagarti in 1976. The original of
the said document she maintained
was missing. The appellant
therefore made a statutory
declaration to this effect and
attached the “deed of gift’ and
a site plan of the property to
it. These were marked at the
trial as exhibit E.
d)
Exhibit F is Letters of
Administration obtained by
Hawawu as the personal
representative of the late
Dagarti.
e)
Exhibit G is a lease agreement
executed between the Osu stool
represented by the then chief
Nii Nartey Dowuona and Abdulai
Dagarti dated 21st of
June 1981.
The house according to the
witness belongs to the
appellant, therefore she is
entitled to the reliefs.
One Memuna Iddrisu gave evidence
as PW1 she said she is related
to Dagarti and Hawawu and knows
that Dagarti gave the property
to Hawawu as a gift before he
died. She claimed she
represented Hawawu to sell the
property to the plaintiff. Two
other witnesses Suraju Abubakari
and Alhaji Musa Ahmed gave
evidence confirming that the
house was sold to the
appellant.
Evidence of the respondents
The first respondent is the
family head of Abdulai Dagarti
and Hawawu. He was represented
by an attorney, Wing Commander
Eric Darkura (Rtd). According to
the respondent, when the family
came to Dagarti’s funeral, his
sister Hawawu requested that the
family allowed her to collect
the rent on the disputed house.
They later discovered that
Hawawu obtained Letters of
Administration in respect of
Abdulai’s estate without the
knowledge of the family. The
family instituted an action to
set aside the grant of the
Letters of Administration and
the suit was still pending at
the time he was giving evidence.
The family also got to know that
the house had been sold to two
different people. The family
instructed a lawyer to write to
Hawawu and Memuna’s lawyer to
protest against the sale. The
letter of protest dated
12-12-2000 is in evidence as
Exhibit 3.
According to the witness when
the family got to know of the
sale to the appellant they
confronted Hawawu but she denied
she ever sold the property. The
witness further testified that
the disputed house was never
gifted to Hawawu. Exhibit E
therefore is not a genuine
document.
The witness tendered the
proceedings from the Rent
Tribunal in a case where Memuna
i.e. PW1 acting as Hawawu’s
attorney sued the tenants for
recovery of the rooms they were
occupying. The said proceedings
is Exhibit 4.
The exhibit was tendered by the
witness in support of his
testimony that prior to the sale
of the property to the appellant
the property had already been
sold to two other people.
According to the witness the
family instructed the tenants to
continue to live in the house.
The 2nd respondent
represented the 3rd
to 17th respondents.
She confirmed that they were
tenants of the late Abdulai
Dagarti. When he died they paid
rents to the first respondent,
Zongo Naa Kun-Gari. According to
the witness Zongo Naa introduced
Hawawu to them at the funeral of
the late Dagarti and instructed
that in his absence they should
pay rents to Hawawu.
The reliefs the appellant is
seeking in this suit include
declaration of tile and recovery
of possession. She is asserting
title to the property by her
claims, as such the burden falls
on her to produce evidence, on
the balance of probabilities
establishing the following: a)
Her root of title. b) Her mode
of acquisition and c) various
acts of possession. This is the
present position of the law and
the Supreme Court in several
decisions had emphasized these
ingredients of proof the law
requires from a party who
asserts title to a landed
property. In the case of
Mondial Veneer (Gh) Ltd. V Amuah
Gyebu XV [2011] 1 SCGLR 466 the
Supreme Court per Georgina Wood
CJ held at page 474 of the
report as follows: “In
land litigation even where
living witnesses who were
directly involved in the
transaction under reference are
produced in court as witnesses,
the law requires the person
asserting title, and on whom the
burden of persuasion falls … to
prove the root of title, mode of
acquisition and various acts of
possession exercised over the
subject matter of litigation.”
The appellant admits in her
evidence that her attempt to
take possession of the property
was resisted by the 1st
respondent, therefore she
obviously had not exercised any
acts of possession.
The validity of the documentary
evidence adduced at the trial as
regards her root of title and
mode of acquisition was strongly
challenged by the respondents.
The trial court therefore had
the primary duty to thoroughly
examine those documents and make
definite pronouncement on their
validity. This the trial court
failed to do. The Court of
Appeal therefore had cause to
interfere with the findings and
conclusions of the trial court.
The Court of Appeal rightly
found the documents presented by
the appellant are not valid.
However in view of the
submissions made by counsel for
the appellant, alleging the
first appellate court failed to
evaluate the documentary
evidence properly and therefore
erred in their conclusion
allowing the appeal, this court
would have to critically re-
evaluate the documentary
evidence.
Counsel for the appellant’s
submission that the Court of
Appeal mistook some of the
documentary evidence for others
is not an accurate statement so
far as the documents are
concerned. It is obvious counsel
got a little confused with the
numbering of the exhibits, he
cannot be blamed for that
because the record of
proceedings being a photocopy
has most of the numbering
blurred and not very clear. This
court is in possession of the
originals of the exhibits
tendered at the trial which have
the numberings in red ink. The
court is therefore in a position
to clarify the position. The
numbering of the exhibits as
narrated in the evidence of the
appellant at the opening of this
judgment corresponds with what
pertains in the original record
of the court, and if counsel had
taken close look at the evidence
of the appellant he would not
have had any problems accurately
identifying the exhibits by the
numbering.
The document marked exhibit C by
the court’s record is a Deed of
Assignment between Hawawu and
the appellant Rukayatu Usumanu
dated 2nd April 2001
and tendered in evidence by the
appellant’s attorney on 12th of
September 2007. Attached to this
document is the site plan of the
property and a copy of the
Letters of Administration
obtained by Hawawu. Exhibit C
therefore, is not the customary
grant obtained by Abudulai
Dagarti. The Deed of assignment
between Hawawu and the appellant
exhibit C is found on page 118
-121 of the record of appeal.
Page 122 of the records has what
is being described as a
customary grant by the Osu Stool
to Dagarti made in 1964. In the
original record of the court, it
is not attached to exhibit C.
The customary grant as per the
document in page 122 of the
record was executed by Nii
Nortey Dowuona V, OSU Mantse and
Abdulai Dagarti. Counsel for
appellant’s statement in his
submission in respect of exhibit
E is equally not accurate. We
have sufficiently clarified the
documents marked as exhibit E in
the early part of this judgment.
It is obvious that there had
been a miss-arrangement of some
of the pages of the record of
appeal but that has not resulted
in any error on the part of the
first appellate court. The Court
of Appeal’s reference to the
exhibits is in line with the
original copies of the exhibits
on the record of appeal.
The documents the appellant
presented in proof of her root
of title are: i) The document
described by the appellant as
‘deed of gift’ on the second
page of exhibit E. ii) The
customary grant documents ie
exhibit G and iii) the document
found on page 122 of the record.
In civil matters proof is by a
preponderance of probabilities.
Section 12 (2) of the
Evidence Act, 1975 (NRCD323)
defines preponderance of
probabilities in the following
words:
“Preponderance of the
probabilities means that degree
of certainty of belief in the
mind of the tribunal of fact or
the Court by which it is
convinced that the existence of
a fact is more probable than its
non-existence.”
A careful examination of these
documents raises a great doubt
regarding their validity. The
‘deed of gift’ was strongly
challenged by the 1st
respondent. He denied that a
gift of the property was ever
made to Hawawu by Abdulai
Dagarti. Hawawu was only
permitted to collect rents in
respect of the property when
Dagarti died. This was confirmed
by the 2nd
respondent, a tenant who said
the 1st respondent,
when he came to Dagarti’s
funeral had a meeting with them
and introduced Hawawu to them to
be paying the rents to, since he
resides in Northern Ghana.
From the evidence the appellant
herself does not seem to be sure
whether the said ‘deed of gift’
was made and signed by Abdulai
Dagarti.
The evidence of her attorney in
cross-examination page 23-24 of
the record of appeal goes this
way:
“Q. Do you know when this house
was allegedly given by Dagarti
to Hajia Hawawu.
A. I do not know the specific
date.
Q. How did you know Dagarti gave
it to his sister
A. At the time she sold it to us
she showed us a statutory
declaration indicating she got
it from Abdulai.
Q. Look at Exhibit ‘E’ is that
the statutory declaration you
are talking about.
A. Yes, My Lord.
Q. You tendered it, do you know
the witnesses.
A. No, My Lord.
Q. According to you this Exhibit
‘E’ is the evidence of gift of
the house in dispute to Hajia
Hawawu.
A. Yes, My Lord.
Q. This was allegedly prepared
in 1976.
A. Yes, My Lord.
Q: You cannot tell whether this
document was in fact prepared
and signed by Abdulai Dagarti
A: This is what I realize when I
see the document.
The appellant’s attorney looking
at the statutory declaration
termed ‘deed of gift’ admitted
he cannot tell if the document
was actually made and signed by
Abdulai Dagarti. The other
curious aspect of the
appellant’s evidence on this
“deed of gift” is that she
alleged the original is missing,
she, the appellant made a
statutory declaration to that
effect and attached what she
terms a copy. The owner of this
“deed” being Hawawu at the time
of the transaction, a
declaration that the original is
missing would have been made by
Hawawu not the appellant. How
the appellant got a copy of the
alleged missing document raises
an eyebrow. She did not offer
any explanation to this in her
evidence.
The customary grant document
which Exhibit G confirms gave
the year of the grant as 1964.
However in the recitals of
Exhibit G the year of the
alleged customary grant is
stated as 1962. What is more, it
is not only the years of grant
that are not consistent in the
two documents, the grantor in
the document found on page 122
of the record is Nii Nortey
Dowuona V, representing the Osu
Stool. However the recitals of
the confirmation lease document
exhibit G reads “Whereas in the
year 1962 Nii Adokwei Saka
accredited caretaker of the
Mamobi lands for and on behalf
of the Osu stool granted and
conveyed customarily unto the
lessee herein”… The Lessee is
Abdulai Dagarti. These grievous
inconsistencies in the documents
which are supposed to be Abdulai
Dagarti’s root of title knock
out any credibility of the
validity of those documents.
Another observation that deepens
the doubt of the validity of
these documents is that the
signature of Abdulai Dagarti
differs on each of the three
documents that he was alleged to
have signed or thumb printed;
the alleged ‘deed of gift’ which
forms part of exhibit E, exhibit
G and the document of the
customary grant found on page
122 of the record.
Exhibit G which it is said
confirms the customary grant to
Dagarti gave the effective date
of the lease as 1st
of June 1981. Logically
speaking, if the grant to
Dagarti was to take effect from
1st June 1981, as
indicated in exhibit G then, in
1976 he had no title or interest
in the property to make a gift
of.
A significant fact which we are
mindful of is that at the time
of hearing this case in the
trial court Abdulai Dagarti and
his sister Hawawu were both
dead. Though the appellant had
maintained Hawawu sold the
property to her, there is
evidence from the 1st
respondent that when he
confronted Hawawu when she was
alive but on a sick bed about
the sale of the house she
retorted she did not know about
any sale and if anybody says so
the person is a thief. As a
result he caused a lawyer to
write exhibit 3 to the
appellant.
In evaluating the evidence,
especially the documents alleged
to have been executed by the
dead persons, the law enjoins us
to exercise great care and
examine these documents with
suspicion. The age old principle
that guards the courts in
evaluating assertions made
against dead persons is stated
in the case of Garnett,
In re; Gandy v Macauly(1885)31
Ch D 1 at 9, CA in the
words of Brett MR as follows:
“The law is that when an
attempt is made to charge a dead
person in a matter, in which if
he were alive, he might have
answered the charge, the
evidence ought to be looked at
with great care; the evidence
ought to be thoroughly sifted,
and the mind of any judge who
hears it ought to be, first of
all in a state of suspicion.”
In the case of Mondial
Veneer (Gh) Ltd. Cited
Supra, this court stated the
principle citing Garnett, In re;
Gandy v Macauly with approval
and held, per Georgina Wood CJ
(as she then was) that
“Our jurisprudence has examined
the approach courts must adopt
when evaluating charges and
assertions made against dead
persons. We have firmly
established the principle that
real danger lies in accepting
without questioning or close
scrutiny, claims against a dead
person. The caution that such
claims must be weighed carefully
is based on plain good sense and
has consistently been applied in
a number of cases including
Fosua & Adu Poku v Dufie (Decd)
Adu Poku Mensah [2009]SCGLR310,
In Re Krah (Decd); Yankyeraah v
Osei-Tutu [189-90] 1 GLR 638, SC
and Tabiri [1987-88] 1 GLR 360,
SC.”
The evidence of the appellant’s
two witnesses did not help the
appellant’s case any. They did
not prove to be credible
witnesses. Memuna Idrisu said
she represented Hawawu in the
sale transaction. She had
previously instituted an action
against the tenants at the Rent
Tribunal seeking to eject the
tenants. The proceedings of the
Rent Tribunal is in evidence as
exhibit 4, she was the
complainant in the said
proceedings. On the 14th
of March 2001 she
testified that the disputed
property had been sold to Suraj
Abubakari and she wanted the
tenants ejected so that she
could give the new landlord
vacant possession. On 30th
of April 2001 Suraj Abubakari
also testified in the said
proceedings. It will be
worthwhile to quote his
testimony. “I know the
complainant in this case as well
as respondent a tenant.
Complainant in this case has
disposed of the premises to me
since December 2000. I have
fully paid for it and I have
been issued with the necessary
documents. The reason for the
purchase is to accommodate
members of my family who have
been displaced following an
ejectment order by Rent Officer.
Respondents must therefore quit
to enable me obtain vacant
possession.”
The rent officer in his judgment
stated that he was aware of
Suraj’s ejectment therefore his
claim for need of the house was
justified and granted the order
for ejectment. It is surprising
appellant claimed she purchased
this same property and called
Suraj Abubakari as a witness to
the sale.
When PW1 Memuna was confronted
with this testimony in the
proceedings in the circuit court
she admitted she told the Rent
Tribunal the house had been sold
to Suraj Abubakari. That this
same Memuna can genuinely sell
the same property to the
appellant claiming she
represented Hawawu points to
nothing but fraud. Meanwhile
when Suraj Abubakari was
confronted with his previous
statement in exhibit 4 he
vehemently denied he ever said
the property was sold to him.
From the above analysis of the
evidence we can safely conclude
that the evidence the appellant
placed before the court in proof
of her title to the house is
devoid of any credibility. The
appellant has clearly failed to
discharge the burden of proof
required of her to succeed in
the action.
On the second issue as to
whether the appellant can
succeed on the plea of innocent
purchaser for value without
notice or not, exhibit 3 throws
the appellant’s claim that she
had no notice overboard. Exhibit
3 is a letter written by
solicitors of the 1st
respondent in reply to a letter
written by the appellant’s
solicitor to the tenants to
vacate the disputed premises
because she had purchased it.
The letter is dated 12th
of December 2000 and it reads:
“Dear Sir,
ACQUISITION OF H/NO 21/6/MAAMOBI
ACCRA
I am writing as Solicitor for
Madam Hawawu and her family.
Your undated later on the above
subject addressed to all tenants
of H/No 21/6 Maamobi, Accra
giving them notice to vacate the
house has been referred to me
with instructions to reply.
My instructions are that Madam
Hawawu has not sold the house to
your client, as claimed in your
letter. Your notice to the
tenants to quit is therefore
untenable.
We have accordingly advised all
the tenants in the house not to
comply with your notice to them
to quit.”
It would be observed that though
this letter served notice on the
appellant that the sale is being
challenged she went ahead and
continued the transaction by
executing documents of the sale
after the letter just quoted was
written to her lawyer. The
payment receipt issued to the
appellant is dated 1st
June 2001 The deed of assignment
exhibit C, between Hawawu and
the appellant is dated 2nd
of April 2001. The statutory
declaration transferring the
property to the appellant is
dated June 2001.
The appellant definitely had
notice of the respondent’s
position on the alleged sale yet
she went ahead with the
transaction. It lies foul in her
mouth to plead that she is an
innocent purchaser for value
without notice. We find no merit
in the appeal.
The appeal fails in its entity
and it is hereby dismissed.
A.
M. A. DORDZIE (MRS.)
(JUSTICE
OF THE SUPREME COURT)
Y.
APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE
SUPREME COURT)
A.
LOVELACE–JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
I.O TANKO AMADU
(JUSTICE OF THE
SUPREME COURT)
COUNSEL
MOHAMMED OSMAN FOR THE
PLAINTIFFS/RESPONDENT/APPELLANTS.
COL. MAHAMA IDDRISU FOR THE
DEFENDANTS/APPELLANTS/RESPONDENTS. |
