Land law and conveyancing ‑
Contract of sale - Investigation
of title ‑ Vendor’s title
defective - Purchaser neglecting
to investigate title - Purchaser
deemed to have notice of defect.
The 1st defendant sold to the
2nd defendant who in turn sold
to the 3rd defendant the
disputed house which the 1st
defendant, together with the
plaintiffs, had inherited from
their father, Alhaji Mahama. The
plaintiffs therefore instituted
an action in the High Court for
a declaration that the sale was
of no effect. The court found as
a fact that the sale was by the
1st defendant under an obvious
false pretence that he was
Alhaji Mahama when his true name
was Sabo and had never ventured
into Mecca. The 3rd defendant
without investigating his
vendor’s title proceeded with
the sale. The 1st defendant
submitted to judgment and the
court found for the plaintiffs.
The 3rd defendant appealed to
the Court of Appeal.
Held:
on the facts the 2nd defendant
connived at or colluded in the
conduct of the 1st defendant and
did not qualify as a purchaser
for value without notice of the
defect in the title proffered by
the 1st defendant. As a person
buying landed property the 3rd
defendant was duty bound to
investigate the title of his
vendor. Proper investigation
depended on the each case but
generally included enquiries
aimed at establishing the
validity of the vendor’s title.
If no such enquiries were
conducted and the title turned
out to be defective, the
purchaser would be deemed to
have notice of the defect.
Basare v Sakyi [1987-88] 1
GLR 313, SC, Aminu Egbeyemi v
G B Olivant & Co Ltd (1939)
5 WACA 147, Clayton v Leech
(1889) 41 Ch D 103, CA,
Besley v Besley (1878) 9 Ch
D 103, Legg v Croker 1
Ball & B 506 referred to.
Cases referred to:
Aminu Egbeyemi v G B Olivant &
Co Ltd
(1939) 5 WACA 147.
Basare v Sakyi
[1987-88] 1 GLR 313, SC.
Besley v Besley
(1878) 9 Ch D 103, 38 LT 844, 42
JP 806, 27 WR 184, 31(1) Digest
(Reissue) 185.
Clayton v Leech
(1889) 41 Ch D 103, CA,
[1886-90] All ER Rep 446, 61 LT
69, 37 WR 663, AC, 35 Digest
(Repl) 118.
Legg v Croker
1 Ball & B 506.
APPEAL against the decision of
High Court, to the Court of
Appeal.
Ahenkorah
for the appellant.
Obeng Manu
for the respondents.
BROBBEY JA.
The plaintiffs and the first
defendant were of the same
father. The plaintiffs claimed
that he and the first defendant
inherited the disputed property
under Moslem law from their
father, a Moslem. While the
plaintiffs were away, the first
defendant sold or pledged the
house to the second defendant.
The plaintiffs therefore
instituted an action in the
Sunyani High Court, claiming a
declaration firstly that the
property was vested in them and
could not be disposed of by any
child of their deceased father
acting alone without the
knowledge, consent or approval
of the other children and
secondly that the sale of the
house by the first defendant
without the consent of the
plaintiffs was of no legal
effect. They prayed further for
an order of perpetual injunction
restraining the defendants,
their agents, assigns and heirs
from interfering with the
plaintiffs’ right to the use and
enjoyment of the said house.
Judgment was given in favour of
the plaintiffs and the second
defendant alone appealed to the
Court of Appeal.
The third defendant traced his
title from the second defendant
who in turn traced his from
first defendant. The validity of
the title of the second
defendant was therefore
contingent on the validity of
the title of the first
defendant.
No serious effort was made to
controvert the allegation that
the plaintiffs, the first
defendant and their father were
all Moslems. The finding of the
trial judge that the property
devolved jointly and equally to
all three children was quite
right.
What then was the title of the
first defendant which he
purported to have passed on to
the second defendant? The
evidence was not clear as to
whether he pledged or sold the
house to the second defendant.
However the significance of
whatever he did lies in his
attempt to pass title to the
second defendant. The first
defendant threw in the towel at
the very inception of the
litigation. He submitted to
judgment and judgment was
entered against him on all the
reliefs claimed by the
plaintiffs.
As the trial judge rightly
deduced, by submitting to
judgment, the first defendant
conceded that he sold or pledged
the house without the knowledge
and consent of the two
plaintiffs. There was
overwhelming evidence that at
time of the sale the two
plaintiffs were away from
Sunyani. They were in no way
involved in the sale. By the
first defendant’s submission to
judgment he clearly conceded
that he had no authority to sell
or pledge the house, neither did
he have any title of his own
over the house which he could
have passed on to the second
defendant by way of sale or
pledge.
It has been argued by counsel
for the appellant that the first
defendant acted as managing
agent for the three joint owners
and therefore they should be
estopped from denying the
validity of the sale which he
effected by their personal and
vicarious acquiescence, based on
representation.
That ground is quite nebulous.
Whatever it means, if by that
ground of appeal the appellant
was relying on estoppel based on
the conduct of the first
defendant, that estoppel would
only militate against the
interests of the first defendant
alone. In any case, how does
such a point avail the appellant
in view of the submission to
judgment by the first defendant?
There is evidence on record to
show that first defendant posed
as “Alhaji Mahama” during the
sale or pledge of the property
and during the execution of the
deed of conveyance which was
tendered as exhibit A. His real
name is Sabo. He had never been
to Mecca to be capable of being
described as Alhaji. By giving
his name as Alhaji Mahama and
executing the sale or pledge as
such, the first defendant set
out to deliberately mislead his
sisters, ie the respondents and
the buyer into believing that he
was Alhaji Mahama, which he very
well knew he was not. It is
obvious that in that deceptive
state of mind, the first
defendant could pass no valid
title on the house by that sale.
It is my view that the second
defendant cannot be said to be
unaware or innocent of the
misrepresentation which was
brought about by first
defendant. In the first place,
it was the second defendant who
led the first defendant to
solicitor by name Mr Opong, to
prepare exhibit A. The evidence
shows that it was a worker of
the second defendant who first
introduced the idea of the sale
of the house to him. If that
indicated that the second
defendant did not know the first
defendant quite well, that was
the more reason why second
defendant himself should have
made enquiries about the title
of the first defendant before
agreeing to buy the property.
There is nothing to show that he
conducted any investigation at
all about Sabo’s title before he
bought the property. Exhibit A
which reduced the transaction
into writing showed beyond any
doubt that Sabo who masqueraded
as Alhaji Mohammed did not
disclose his own root of title
to the property and yet the
second defendant consented to
buy it. second defendant
consciously took a precarious
risk in buying the property
without due investigation. By
law, he is bound by the defect
in the title which his vendor,
the first defendant, passed to
him. The consequences of
purchasing property without
proper investigation will be
elaborated upon in full when the
case of the sole appellant in
the case is considered below.
Further, there is sufficient
evidence on record to show that
the second defendant knew that
first defendant could not have
been Alhaji Mahama. This was
because in the course of the
trial, the second defendant
himself swore an affidavit that
Alhaji Mahama had died. The only
Alhaji Mahama known in this case
who had died was the father of
plaintiffs and first defendant
and he originally owned the
property. If second defendant
knew that Alhaji
Mohammed had died, then he can
be said to have had
foreknowledge of the
misrepresentation when he signed
exhibit A which he knew was
prepared in the name of the man
he was aware had already died.
By his own knowledge disclosed
in the affidavit, it was evident
that he connived at or colluded
in the first defendant’s
misrepresentation. In the light
of the foregoing, the second
defendant could not seriously
describe himself as a purchaser
for value without notice of the
defect in the title. He had
notice of the defect in the
title to the property and the
defect was that first defendant
himself had no title to pass to
him or anybody since he was not
the Alhaji Mohammed in whose
name title was being passed;
additionally, he had no
authority to act on behalf of
Alhaji Mohammed or his
successors. The first defendant
could not even be said to have
genuinely acted for himself
because his name is Sabo and
Sabo is not in exhibit A as the
one who passed title to the
second defendant. In so far that
the second defendant traced his
title from the first defendant,
he could not have acquired any
valid title from a man who had
nothing to give: nemo dat quod
non habet is the simple
principle in application here.
On the facts of the case, the
position of the third defendant
who is the sole appellant herein
is even worse than that of the
second defendant. The appellant
claimed that he knew the first
defendant well and grew up with
him. He also averred that he
bought the property for ¢150,000
in 1981. At that time that was a
colossal sum of money. It is
inconceivable that any person
would spend a huge sum like that
to buy a house without enquiring
how the seller came by that
house. Since the second
defendant who was the vendor to
the appellant had an indenture,
the appellant should at least
have asked to have had sight or
be given a copy thereof.
That indenture spelt out the
second defendant’s root of
title. If the appellant had made
reasonable enquiries, the names
which he himself would have
found from the indenture or
which the second defendant could
have disclosed as being his
(second defendant’s) vendor or
vendors would have been none
other than either the first
defendant or Alhaji Mahama. In
view of the fact that the
appellant claimed to have known
the first defendant very well
and grew up together with him,
there can be no doubt that
either “Sabo” or “Alhaji Mahama”
would have put him on his guard
or enquiry firstly as to the
identity of the actual person
who sold the property to the
second defendant and secondly as
to the nature of the title which
second defendant himself had
acquired from his vendor and
which title the second defendant
purported to have passed on to
him, the appellant. If he failed
to enquire as to how the second
defendant came by the property,
then the appellant was reckless
and should be deemed to have had
notice of the defect on the
title he purported to have
acquired from the second
defendant.
The principle which emerges out
of this case is that a person
buying landed property is duty
bound to properly investigate
the title of his vendor: This is
a hackneyed principle of law too
well settled to require detailed
enunciation. Proper
investigation will usually
depend on the facts of each case
but generally, it should include
enquiries aimed at establishing
the validity of the title of the
vendor. If no enquiries are
conducted at all or if no
reasonable enquiries are
conducted and the title in the
property which is sold turns out
to be defective, encumbered or
invalid, the purchaser will be
pinned with the defect in the
title. In the latter event, the
vendor will not be permitted to
assert that he is a purchaser
for value without notice. On the
contrary he will be deemed by
his own conduct, inadequate
enquiry or total inaction to
have been the purchaser of
property with notice of the
defect in the title of his
vendor. See Basare v Sakyi
[1987-88] 1 GLR 313, SC.
This view of the law is firmly
supported by the principle of
caveat emptor which is quite
common in the law on contracts
and purchases. The principle
came up for consideration in the
case of Aminu Egbeyemi v G B
Olivant & Co Ltd (1939) 5
WACA 147. In that case the
appellant bought property
without investigating the
vendor’s title. After the sale
and payment, he discovered that
the vendor’s title was
defective. His action to
recover the purchase money and
other expenses ended up in the
West African Court of Appeal
where it was held that the
principle of caveat emptor
applied. He lost the action. In
the judgment of the Acting Chief
Justice, Butler Loyd, at p 150,
he stated that:
“It is up to a purchaser whether
by private treaty or at auction
to satisfy himself as to the
“right, title and interest” he
is buying, and if he buys
without doing so he cannot
complain if he is ousted by a
third party proving a better
title. This is the doctrine of
Caveat Emptor... and in my
opinion it is equally applicable
to the present case.”
Two English cases further
illustrate these principles. The
first is Clayton v Leech
(1889) 41 Ch D 103, CA. In that
case a man took a sub-lease for
21 years at a time when the
unexpired period of the
sub-lessor’s lease was 14 years.
The sub-lessee did not
investigate the title before
taking the sub-lease. He could
however have discovered the
mistake if he had investigated
the title. In both the High
Court and the Court of Appeal,
the sub-lessee was held to have
been bound by the sub-lease and
could not even claim
compensation for the mistake in
the period of the sub-lease, the
main reason being that he could
have discovered that mistake if
he had investigated the
sub-lessor’s title.
The second case is Besley v
Besley (1878) 9 Ch D 103 in
which a sub-lessee took a
sub-lease for 23 years. It was
discovered several years after
the execution of the sub-lease
that at the time the sub-lease
was taken, the unexpired period
of the sub-leassor was 16 years.
The court found as a fact that
there was no fraud but the
mistake was mutual. On the other
hand, the sub-leasee had acted
as his own solicitor and could
have discovered the mistake if
the sub-lessor’s title had been
investigated. The parties were
held bound by the terms of the
sub-lease. At page 109 of the
report on the judgment, Malins
VC made the following
instructive propositions, which
I fully endorse. He stated:
“…It has been laid down as a
rule that a purchaser must be
wise in time, and it is quite
immaterial whether the rule is
applied to a purchaser for
valuable consideration or to a
lessee, because a lessee is a
purchaser for value, and is
equally bound to look into the
facts connected with the subject
of the lease as a purchaser is
to look into the matters
connected with his purchase.
That is clearly shewn by the
case of Legg v Croker [1
Ball & B 506].”
For the same reason that the
appellant could have discovered
the error in the title of the
second defendant if he had
investigated it, the appellant
is bound by the consequences of
his failure to conduct the
investigations. Since the
second defendant had no valid
title of his own at the time he
entered into the sale
transaction with the appellant,
he could pass no valid title to
the appellant.
The appellant certainly acquired
no valid title to the property.
The plaintiff-respondent proved
a better title to the house.
These were the conclusions of
the trial judge and I think that
they were fully borne out by the
evidence and supported by the
law. For the foregoing reasons,
I find no merit in the appeal,
which I accordingly dismiss.
LAMPTEY JA.
I agree.
ADJABENG JA.
I also agree.
Appeal dismissed.
S Kwami Tetteh, Legal
Practitioner
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