ZAMBRAMAH vs. MOHAMMED AND ANOTHER [1993]DLCA5106

Date	1993-05-27
Suit No.	[1992 – 1993] 4 G B R 1614 - 1619 C.A
Citation No.	[1993]DLCA5106

LAMPTEY JA

ADJABENG JA

BROBBEY JA

AHENKORAH FOR THE APPELLANT.

OBENG MANU FOR THE RESPONDENTS.

[1993]DLCA5106
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													<main id="main" class="content" style="min-height: 60rem" >ZAMBRAMAH<o:p></o:p>vs.<o:p></o:p>MOHAMMED AND ANOTHER<o:p></o:p>[COURT
OF APPEAL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

[1992 – 1993] 4 G B R 1614 -&nbsp; 1619 C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 27 MAY 1993<o:p></o:p>

OBENG
MANU FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

LAMPTEY
JA, ADJABENG JA, BROBBEY JA<o:p></o:p>

</div>BROBBEY JA. <o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>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?<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>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.<o:p></o:p>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 val</main>