ALHAJI MAHMOUD BRAIMAH vs. HAJIA CEDI AMARKE [2006]DLSC6147

Date	2006-11-15
Suit No.	CIVIL APPEAL NO.J.12/2006
Citation No.	[2006]DLSC6147

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]DLSC6147
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													<main id="main" class="content" style="min-height: 60rem" >ALHAJI MAHMOUD BRAIMAH<o:p></o:p>[PLAINTIFF/RESP/RESPONDENT]<o:p></o:p>vs.<o:p></o:p>HAJIA CEDI AMARKE<o:p></o:p>[DEFENDANT/APPLT/APPELLANT]<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

CIVIL
APPEAL NO.J.12/2006&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 15TH
NOVEMBER, 2006<o:p></o:p>

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

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ATUGUBA,
J.S.C. <o:p></o:p>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 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 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>Weresic 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.&nbsp;
On the evidence they are also elders of the deceased's family. It is
said that these adopted children were given some undeveloped portions of land
as their share of 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 v. DWINFOUR (1979) G.L.R. 360
C.A., at 366 Anin, J.A. stated as follows: <o:p></o:p>"The general principle of equity
is that a purchaser is deemed to have notice of all that a reasonably prudent
purchaser would have discovered. 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
incumbranmcesic...................." <o:p></o:p>This is a hackneyed
principle.&nbsp; See AMUZU v. OKLIKAH (1998 -
1999) S.C.L.R. 141.sic 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>