1936
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
AI Generated Summary
Chief Justice Petrides adjudicated a dispute over a 1923 £120 loan from Chief Henodji I to Edward Sedigbe Sallah, evidenced by Exhibit "A" bearing "Edw. S. Sallah" and referencing repayment within a year and a mortgage on a store in Dsodii market. After Chief Henodji’s death, his son repeatedly demanded repayment; Edward acknowledged the debt but died before paying. The defendant, Seshime Sallah, buried Edward and, when shown Exhibit "A" in the presence of his son Kossie, acknowledged Edward had borrowed the money but refused to pay. The defence raised English limitation statutes, denied signature/consideration/demand, and disputed successor status. The court found the defences meritless, held English limitations inapplicable absent intent to adopt English law, accepted evidence from the Paramount Chief of Awuna State establishing succession under custom, construed Order 43, rule 8 as procedural (governing execution, not limiting judgment), and entered judgment for £120 plus costs, payable from the deceased’s estate.
Petrides, C.J.
The plaintiff claims, as heir and successor of Chief Henodji I, a sum of £120, which he says was lent by Chief Henodji to Edward Sedigbe Sallah. He contends that he is entitled to judgment on the ground that the defendant is the heir and successor of Edward Sedigbe Sallah. He has produced, in support of his claim, a document, Exhibit "A," which reads as follows:-
"Received from Chief Henodji of Tovi the sum of One hundred and twenty pounds (£120) being money loan. Payment shall be made one year from date. Mortgage my store in Dsodii market.
Dated Quittah, 13/1/1923.
(Sgd.) Edw. S. Sallah.
Witnesses. 2/-stamp.
(Sgd.) H. E. Attipoe."
The defendant, in his affidavit of his intention to defend, relied on the following defence:-
(1) That during the lifetime of my brother, deceased, or first defendant referred to in paragraph 4 of the plaintiff's affidavit, I have never been informed of this debt and denied knowledge of plaintiff's claims of our demand, payment or any action being brought whilst the first defendant alive within the six years limiting the time within a remedy may be sought from the date of such debt.
(2) That the effect of Statutes of Limitation applies and govern by English law as between plaintiff and defendants in this action.
At the trial, defendant's counsel stated that he also relied on the following additional grounds of defence:-
(3) That the document sued on was not signed by Edward Sallah, deceased.
(4) That no money passed to the said Edward Sallah, deceased.
(5) No demand was ever made to Edward Sallah, deceased; and
(6) That defendant is not the heir and successor of Edward Sallah, deceased.
The facts as I find them are, shortly, as follows. Plaintiff's father, a few days before he died in about 1923, handed Exhibit "A" to the plaintiff, together with another paper which was probably Exhibit "D." Plaintiff asked Edward Sallah to pay him the sum of £110 on some ten occasions, the last being a few days before the death of Edward Sallah. Edward Sallah never denied owing this money, but kept on putting off the plaintiff by promising to pay when a case he had at Accra was finished. Edward Sallah died without having paid the £120, and his body was taken to Kedji by the defendant, who buried him. Before the burial plaintiff asked the defendant for the money, and was told to return in a fortnight's time, and the defendant would discuss the matter after the funeral. Plaintiff did so, and on that occasion produced