JUDGMENT OF OSEI-HWERE J.
The plaintiff sued the defendant at the District Court Grade I, Cape Coast, and claimed from her house No. A. 156 situated at Kurankyekrom, Saltpond. This house was originally acquired by the plaintiff's father which the plaintiff says his father subsequently disposed by way of gift to his mother and the children by her. According to the plaintiff this gift was covered by the document, exhibit A, which was purported to have been executed on 15 March 1917. The defendant's contention was that the plaintiff's father had sold this house to her mother (the original defendant in this suit) in 1938 and that she and her mother had been in occupation of the house ever since the date of purchase. The defendant also tendered exhibit 1 the document on the sale. In his judgment the magistrate rejected both documents as having no evidential value upon the sole ground that neither had been registered. He found, besides, that the plaintiff had failed to prove any customary grant of the house to him to buttress his claim. On the contrary, he was impressed by the defendant's undisturbed possession and overt acts of ownership and he accordingly dismissed the plaintiff's claim. The plaintiff has appealed to this court on the ground that the judgment is against the weight of evidence and, secondly, that the trial magistrate misdirected himself on the evidence before him and arrived at an erroneous decision.
Arguing on behalf of the plaintiff, his counsel contended that as the authenticity of the deed of gift was not impugned but that what weighed [p.350] with the court was its non-registration then two consequences flowed from this premise, viz. (a) after the date of the deed of gift the donor had no title to dispose of by sale and, (b) since both documents were unregistered the trial magistrate ought to have applied the maxim that where the equities are equal the first in time prevails. According to counsel the court below could have made a declaration in favour of the plaintiff upon any of these two grounds. Counsel further argued that the plaintiff's explanation for the delay in bringing his action was satisfactorily explained as he told the court that he had to trace the deed of gift first before he could bring any action on it. In paragraph (5) of the statement of claim the plaintiff had pleaded the deed of gift made to his mother and her children and in paragraph (6) he averred that his mother had provided customary thanks for the gift. Para
