PETER GYIMAH ASANTE AND ANO. vs. SIMON BOBI NTIRI AND JOSEPH WILLIAMS [2000]DLCA7463

Date	2000-06-08
Suit No.	CIVIL APPEAL NO. 93/98.
Citation No.	[2000]DLCA7463

TWUMASI J.A. (PRESIDING)

FARKYE J.A.

ANSAH J.A.

MR. BARTON ODURO FOR THE CLAIMANT/APPELLANT.

DR. SETH TWUM FOR THE PLAINTIFFS/JUDGMENT/CREDITORS/ RESPONDENTS.

[2000]DLCA7463
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													<main id="main" class="content" style="min-height: 60rem" >PETER GYIMAH ASANTE AND ANO.<o:p></o:p>vs.<o:p></o:p>SIMON BOBI NTIRI AND JOSEPH WILLIAMS<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. 93/98. &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; &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: 8TH JUNE, 2000<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
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solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">COUNSEL: <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
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BARTON ODURO FOR THE CLAIMANT/APPELLANT.<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
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SETH TWUM FOR THE PLAINTIFFS/JUDGMENT/CREDITORS/ 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;
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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;line-height:
115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;
mso-padding-alt:0cm 0cm 1.0pt 0cm;mso-border-between:1.5pt solid windowtext;
mso-padding-between:1.0pt">TWUMASI J.A. (PRESIDING), FARKYE J.A., ANSAH
J.A.<o:p></o:p>

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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>ANSAH,
J.A.:<o:p></o:p>&nbsp;I
also agree that this appeal must be allowed. However I have decided to add a
few words to the Judgment just read. The facts surrounding this case have
already been narrated and I shall therefore save myself the burden of repeating
them here and will only refer to a few of them when it becomes necessary so to
do.<o:p></o:p>&nbsp;I shall begin by quoting from the judgment
under appeal wherein the learned trial judge said inter alia that: <o:p></o:p>“It is my finding that since both interests are not
registered, the first in time should prevail. It was incumbent on the claimants
to make a search to satisfy themselves that the disputed house was not
encumbered. This they failed to do and went ahead to purchase the house at
their own peril. The contract of sale entered into between the plaintiffs and
the defendants cannot be defeated by a sale made eight months later. <o:p></o:p>The next issue to consider is whether the claimants can
come under the umbrella of innocent purchasers without notice....”<o:p></o:p>&nbsp;It was in evidence that at a point in time the
defendant could not be traced. He was served by substituted service and
processes were posted at the building the subject matter of this appeal. <o:p></o:p>This
I find was notice to the claimants that there was some court action on the
judgment. The claimant could have taken action by joining the suit or taken
some other steps. They failed to take any such steps and with the postings
affixed on the building, I find the claimants cannot claim to be innocent
purchasers without notice.”<o:p></o:p>&nbsp;There can be no doubt whatsoever that where
the equities are equal, the first in time shall prevail, an equitable maxim
rendered with some classical flourishes as: <o:p></o:p>“Qui prior est tempore potior est jure.” he who is
earlier in time is stronger in law. Whilst not denying the poignancy of this
maxim it must also be stated that there is nothing inflexible or sacrosanct
about it. Expose it to the test encapsulated in the doctrine of the bona fide
purchaser of a legal estate without notice, and its brittle nature becomes
clear. See Usher vrs: Darko 1977 1 GLR.476. For this latter doctrine to apply,
the onus is on the purchaser to prove that he gave value for the property as a
result of which he obtained the legal estate and this he did without notice,
actual, constructive or inputed. It is apparent from the passage in the
Judgment referred to above that the trial judge reasoned that as there were
Court processes posted on the building then the claimant should have known that
it was encumbered. That way so far there was no evidence that the claimant had
actual notice that there was any encumbrance on the building: neither was any
notice imputed to him. It is this Constructive notice that he must be looked at
now. <o:p></o:p>Now the Conveyancing Decree, 1973, NRCD.175 provides in
section 36(4) that “A purchaser shall not be deemed to be or ever to have been
affected with notice of any matter or thing of which he might have had notice
if he had investigated the title or made inquiries in regard to matters prior
to the period of commencement of title ascertained in accordance with
sub-section (1) (2) or (3), Unless he actually makes such investigation or
inquiries.”<o:p></o:p>&nbsp;Section 36 as a whole deals with statutory
Commencement of title, which is pegged under section 36(1) at Thirty years. A
purchaser is expected to investigate the title of his vendor for that period of
time. The common law is that a purchaser will be held to have had notice of
what appears on the title for the period. Now the Decree has done away with
that rule. The rule will come to play only upon one condition, namely, where
the purchaser actually makes the investigation or inquiries. In other words
where the purchaser did not make the search, investigations or inquiries, he
would not be fixed with notice of what he would have discovered as to the title
of the vendor. Such a purchaser under section 36(1) cannot be said to have had
constructive knowledge of any prior title of the property. It is clear that in
this wise the Ghanaian law is not in accord with the Common law. <o:p></o:p>The
trial judge said that it was incumbent on the claimants to have made a search
to satisfy themselves that the house was not encumbered. I think the
consequences of his failure to make a search have been taken car</main>