November 15, 2006
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Justice W. A. Atuguba, writing for the Supreme Court of Ghana, dismissed an appeal arising from the sale of house E.47/12 in Nima, Accra, self-acquired by the late Alhaji Mahmoud Mustapha Ali. After Alis death, the property descended to his children, natural and adopted. Eldest son Braimah Mahmoud (D.W.1) and uterine sisters Rakia and Salimatu Mahmoud purported to sell the house without the knowledge or consent of adopted brothers Abubakar Laye and Laye Broke. The purchaser relied on Braimahs assertions and the aunts thumbprints and made no prudent inquiries. Applying equitys constructive notice doctrine, as articulated in Boateng v. Dwinfour and affirmed in Amuzu v. Oklikah, the Court recognized the adopted childrens interests, rejected reliance on an inoperative exhibit A, declared the sale invalid, and dismissed the defendant/appellants appeal.
ATUGUBA, J.S.C.: This is a case of much intrigue and unconcern for rectitude.
It is undisputed that the property in dispute was the self-acquired property of the late Alhaji Mahmoud Mustapha Ali. Upon his death the house E.47/12 situate at Nima, Accra descended unto his children both natural and adopted. 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.
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.
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.
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. But there are innocent souls involved namely the two adopted brothers.
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. It is said that these adopted children were given some undeveloped portions of land as their share of the estate. 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. 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. 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. This is not what a prudent purchaser is expected to do. In BOATENG 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. Thus where the purchaser, like the plaintiff in his case, had actual notice that the property