DZANKU v. KWADWO
1960
COURT OF APPEAL
GHANA
CORAM
- KORSAH
- C.J.
- VAN LARE
- J.A.
- GRANVILLE SHARP
- J.A
Areas of Law
- Property and Real Estate Law
1960
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case centers on whether a land transaction was a sale or a pledge. Dzanku's predecessor's transaction was determined to be a pledge, allowing Dzanku to redeem the land upon repayment. The appellant's claim of long possession and improvements made to the land were dismissed as they did not alter the nature of the transaction from pledge to sale under native customary law. The previous judgments in favor of Dzanku were upheld, allowing him to redeem the land on repayment of the pledged amount.
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] 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