DZANKU v. KWADWO [1960] GLR 31

DIVISION: IN THE COURT OF APPEAL

DATE: 8TH MARCH, 1960

Beyfore: KORSAH, C.J., VAN LARE, J.A. AND GRANVILLE SHARP, J.A.

CASES REFERRED TO

(1) Kroofi v. Attah (October, 1887 (Smith J.) unreported).

(2) Nkoom v. Etsiaku Full Court 1922, 3.

(3) Kofi v. Kofi 1 W.A.C.A. 284.

NATURE OF PROCEEDINGS APPEAL from decision of Manyo-Plange, J., in the Land Court, Accra on May 25, 1958, dismissing an appeal from the Ho District Appeal Court which had affirmed the judgment of the Asogli Native Court “B” in favour of the plaintiff in an action claiming the recovery of land formerly pledged to a predecessor of the defendant.

COUNSEL

Amorin for appellant.

The court calls counsel’s attention to Kofi v. Kofi 1 W.A.C.A. 284, and to Nkoom v. Etsiaku Full

Court 1922, 3.

Amorin: I have read the judgments, and now leave the matter in the hands of the court.

No appearance for respondent (Dzanku).

JUDGMENT OF KORSAH C.J.

(Who delivered the judgment of the court referred to the facts and continued):

It will be observed that the only issue joined between the parties was whether the transaction between the predecessors of the parties was a sale or a pledge. This question had already been resolved in favour of Dzanku in a previous suit which was instituted against him in the Asogli Court “ B “ by Adza Kwadwo. The concluding passages of the judgment, delivered on the 27th April, 1954, read: — “The court is entirely satisfied with the evidence of the defendant and his witnesses and is prepared to believe that the land in dispute is for the defendant. Plaintiff’s case is therefore dismissed. The disputed land with the exception of the pledged one as demarcated at the locus in quo is awarded to defendant.” On appeal to the Land Court, Manyo-Plange, J., after discussing the evidence and the grounds of appeal, concluded thus:—

“For the above reasons I confirm the judgment of the court below but (since there was no claim for declaration of title) amend the judgment on the counter-claim, which should read, ‘Judgment on the counter-claim for the defendant, and he is awarded £10 damages. Costs to be taxed.’ The appeal is therefore dismissed with costs.” These two judgments having been tendered in evidence by Dzanku, the native court of first instance rightly held that the transaction between the predecessors of the parties with respect to the portion of the land in dispute was not a sale but a pledge; and that, in consequence, as the amount for which it was pledged had been offered in repayment and had been refused, Dzanku was entitled to recover the land from Adza Kwadwo on payment of 6s. In this court it has been argued that the plaintiff having stood by, and having allowed the appellant to remain on the land for nine generations and to spend considerable sums in improving it, is now estopped

[p.33] of [1960] GLR 31 from asserting claim to ownership. But there is no evidence on the record to support the allegation that defendant has been on the land for nine generations; and even if there had been such evidence on record, it would not have changed the nature of the transaction from pledge to sale. Furthermore, there are decided cases which establish that, by native customary law, the long duration of a pledge (no matter how long it may last) does not prevent the successors of he original owners from exercising their right to redeem the property whenever they decide to do so. And since by native custom a pledgee is entitled to use the property pledged, for his own benefit and without accounting to the pledgor, the fact that the pledgee has spent money to improve the property cannot bar the pledgor from recovering the property upon payment of the debt. On the question of native customary law, we may refer to the case of Kroofi v. Attah (unreported) where Smith, J., delivered the following judgment on October 1, 1887: “I find the land to belong to the plaintiff, but as the defendant assisted to redeem the land, he shall be entitled to occupy the portion of the land which the plaintiff has given him to occupy, and shall by no means encroach upon the other portion of plaintiff’s land. If the plaintiff desires to possess the whole land, he shall return to the defendant the money advanced by him.” On October 25, 1887 after the amount had been paid, it was recorded:

“This case was last before the Court on 1st instant, when judgment was given for plaintiff, but defendant was allowed to occupy portion of land recovered till amount advanced by him for the redemption of the land be paid by plaintiff. The Court being satisfied that the amount has been paid by the plaintiff to defendant, doth declare the plaintiff to be entitled to the land in occupation by defendant.” In a subsequent suit (Kodwo Nkoom as successor of Kweku Attah v. Kwamin Etsiaku as successor of Kroofi (Full Ct. 1922, p.4)) Smyly, C.J. said:

“I consider it obvious that if the judgment of 25th October, 1887, is to be read with that of 1st of October, there could be no boundary to demarcate — the present defendant being clearly entitled to the whole land.”

With regard to the plea of long possession, Smyly, C.J. said:

“The test as to whether the native law and custom should be followed or not would appear to be whether the adverse possession was of such a kind as to lead the persons so holding adversely to believe they were the owners, and (as such) to have incurred pecuniary responsibilities. In my opinion this test does not apply to the present case, where it is admitted that the plaintiffs got possession under a mortgage, the payment of the redemption money of which they dispute.” So, too, in or about the year 1869, A’s ancestor pledged certain lands known as the Dove lands with B’s ancestor as security for the sum of 6.s 6d. It was held by the West African Court of Appeal that A was [p.34] of [1960] GLR 31 entitled to recover those lands on repayment of the 6s. 6d. notwithstanding the long continued possession of B and his ancestors and the lapse of time (Kofi v. Kofi (1 W.A.C.A. 284)).

The native appeal court in the instant case went to the trouble of defining the exact nature of Dzanku’s interest in that portion of the land cultivated by his predecessors, when they said: “ The respondent Dzanku to pay 6s. to redeem the disputed land from the appellant Kwadwo. Any farm or farms made by the appellant or by his agents to be used on dibinamdibi system with the respondent.” In our view this is a variation of the decision of the trial native court, which entered “Complete judgment” in favour of Dzanku in respect of ownership of the said land. We agree with the judgment of the native appeal court, and the parties are therefore left to arrange between themselves this dibinamdibi system according to native custom, in order to define their respective interests.

This appeal is accordingly dismissed.

DECISION

Appeal dismissed.