On the other hand a document raising the presumption of the application of English law, may turn out to be imperfect, by the application of the strict rules of English law, to spell out a transaction recognised by English law; in that event, the duty of the court, in the case where the parties are indigenous, and that case only, is to examine the document to see if it succeeds in spelling out a transaction recognised by customary law.
Thirdly, the finding of the learned judge that “Asani Yaw later surrendered his title deed exhibit 1 to Aduamoah” negatives any original intention by the parties to bargain for an absolute sale. Furthermore, there is no evidence of guaha (delivery of seisin) having been cut, and as such nothing was conveyed.
Under our customary law of sale of land, the following essential elements must be established: (1) competent contracting parties; (2) mutual assent of such parties; (3) the marking out or inspection of the land and its boundaries, and if necessary the planting of boundary trees or fixing of boundary marks; (4) valuable consideration; and (5) the payment of trama (earnest money) to the vendor—see Sarbah’s Fanti Customary Laws (2nd ed.), pp. 86-87. On the facts of this case, it is clear that the second, third, fourth and fifth ingredients of a valid customary sale of land were all absent. In the event, the learned judge erred in holding that there was such a valid customary sale of land.
