GODWIN KORBLA DOSOO (PLAINTIFF/RESPONDENT) vs. YAW ANSU & ORS. (DEFENDANT) [2004]DLCA7115

Date	2004-03-04
Suit No.	CIVIL APPEAL NO. 26/2002
Citation No.	[2004]DLCA7115

TWUMASI (PRESIDING) JA

P.K. OWUSU-ANSAH JA

S.Y. ANIM JA

[2004]DLCA7115
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													<main id="main" class="content" style="min-height: 60rem" >GODWIN KORBLA DOSOO<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>YAW ANSU &amp; ORS.<o:p></o:p>(DEFENDANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL NO. 26/2002 &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:&nbsp; 4TH MARCH, 2004<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:0in;margin-bottom:.0001pt;line-height:
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solid windowtext 2.25pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">CORAM:&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;&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;
<o:p></o:p>

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

</div>TWUMASI,
J.A.<o:p></o:p>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:—<o:p></o:p>&nbsp;"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. <o:p></o:p>Q:
You were not given a report<o:p></o:p>&nbsp;A: No.<o:p></o:p>&nbsp;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:— <o:p></o:p>Q:
When the dispute started Afutu informed Captain Acquah that the defendants are
the rightful owners?<o:p></o:p>&nbsp;A: Not correct. I am not aware of that. <o:p></o:p>Q:
I am suggesting to you that Afutu gave another plot to your brother through
Captain Acquah? <o:p></o:p>A:
I am not aware of that.<o:p></o:p>&nbsp;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. <o:p></o:p>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. <o:p></o:p>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 </main>