ALHAJI MAHMOUD BRAIMAH vs. HAJIA CEDI AMARKE [2006]DLSC2418

Date	2006-11-15
Suit No.	CIVIL APPEAL NO.J.12/2006
Citation No.	[2006]DLSC2418

ATUGUBA J.S.C.(PRESIDING

MRS. WOOD.J.S.C

BROBBEY J.S.C

ANSAH J.S.C.

ANINAKWAH J.S.C.

MR. FAROUK SEIDU FOR APPELLANT

MR. LAWRENCE TAGOE FOR RESPONDENT.

[2006]DLSC2418
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													<main id="main" class="content" style="min-height: 60rem" >ALHAJI MAHMOUD BRAIMAH<o:p></o:p>vs.<o:p></o:p>HAJIA CEDI AMARKE<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO.J.12/2006<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">

DATE: 15TH NOVEMBER, 2006.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
FAROUK SEIDU FOR APPELLANT<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">

MR.
LAWRENCE TAGOE FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

ATUGUBA,
J.S.C.(PRESIDING), MRS. WOOD.J.S.C., BROBBEY, J.S.C., ANSAH, J.S.C., ANINAKWAH,
J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT<o:p></o:p>&nbsp;ATUGUBA, J.S.C.:&nbsp;&nbsp; This is a case of much intrigue and
unconcern for rectitude.<o:p></o:p>It
is undisputed that the property in dispute was the self-acquired property of
the late Alhaji Mahmoud Mustapha Ali.&nbsp;
Upon his death the house E.47/12 situate at Nima, Accra descended unto
his children both natural and adopted.&nbsp;
The said house has purportedly been sold to the respondent by the
deceased’s eldest son Braimah Mahmoud (D.W.1) and his two uterine sisters,
Rakia Mahmoud and Salimatu Mahmoud, without the knowledge and consent of their
two brothers (by adoption), Abubakar Laye and&nbsp;
Laye Broke.<o:p></o:p>The
plaintiff/respondent, who appears to be a straight forward person, unlike his
father testified that his two aunts, Rakia Mahmoud&nbsp; and Safiratu Mahmoud, thumb printed the sale
document prepared by his father Braimah Mahmound to enable them benefit there
from since they had missed out on another earlier sale by their brother.<o:p></o:p>It
is these same characters who among others have authorised the
plaintiff/respondent to bring the action to recover this property, culminating
in this appeal.<o:p></o:p>Were
the matter to end there, this court being also a court of conscience could not
lend its hands to such an actio ex turpi causa.&nbsp;
But there are innocent souls involved namely the two adopted brothers.<o:p></o:p>From
the evidence on record the issue between the parties revolves around the
interest and right of the adopted children in the disputed property. On the
evidence they are also elders of the deceased’s family.&nbsp; It is said that these adopted children were
given some undeveloped portions of land as their share of&nbsp; the estate.&nbsp;
That contention however founders upon the inoperativeness of exhibit
“A”, a declaration by the deceased owner as to the character, status and
disposition of the disputed property.&nbsp;
The respondent was content to buy the property from the recalcitrant
Braimah Mahmoud, upon his mere ipse dixit that the property belonged to him and
his two said sisters who had consented to the sale thereof.&nbsp; This she did without recourse by way of
inquiry, even of the said two sisters whom she knows very well as well as their
family.&nbsp; This is not what a prudent
purchaser is expected to do.&nbsp; In
BOATENG&nbsp; v. DWINFOUR (1979) G.L.R. 360
C.A., at 366 Anin, J.A. stated as follows: “The general principle of equity is
that a purchaser is deemed to have notice of all that a reasonably prudent
purchaser would have discovered.&nbsp;&nbsp; Thus
where the purchaser, like the plaintiff in his case, had actual notice that the
property was in some way encumbered, she will be held to have constructive
notice of all that she would have discovered if she had investigated the
incumbranmce…. ……”&nbsp; <o:p></o:p>This
is a hackneyed principle.&nbsp; See AMUZU v.
OKLIKAH (1998 – 1999) S.C.L.R. 141. &nbsp;For
all the foregoing reasons it is clear that the purported sale of the disputed
property to the defendant/appellant cannot hold.<o:p></o:p>The
appeal is accordingly dismissed.<o:p></o:p><o:p>&nbsp;</o:p>W.
A. ATUGUBA<o:p></o:p>JUSTICE
OF THE SUPREME COURT<o:p></o:p>G.
T. WOOD (MRS.)<o:p></o:p>JUSTICE
OF THE SUPREME COURT<o:p></o:p>S.
A. BROBBEY<o:p></o:p>JUSTICE
OF THE SUPREME COUIRT<o:p></o:p>J.
ANSAH<o:p></o:p>JUSTICE
OF THE SUPREME COURT<o:p></o:p>R.
T. ANINAKWAH<o:p></o:p>

JUSTICE
OF THE SUPREME COURT<o:p></o:p></main>