1948
HIGH COURT
GHANA
CORAM
AI Generated Summary
On appeal from the Ogua Native Court’s June 11, 1948 judgment, Jackson, J. reviewed a land title dispute between J. B. Clarke, acting for Akyinbah’s Section of the Awinadzi Family, and Kofi Nkrumah. The family had possessed the land for over a century. Clarke asserted ownership by purchase; Nkrumah argued the plaintiffs were merely pledgees and sought redemption. The Native Court, after hearing evidence and viewing the land, held the transaction was a sale, not a pledge. Applying Fanti customary law, the High Court stressed the absence of rum offerings upon a pledgee’s death, notice requirements for mortgage rights, and unchallenged conduct (including a 17-year possession and a pacification award over a felled oil palm). The appeal was dismissed, with the judgment amended to declare the family exclusive owners and grant an injunction against Nkrumah. The court also noted an irregular joinder of Nana Kwamin Egyaye II under section 39 of the Native Courts (Colony) Ordinance 1944, rendering it void.
Judgment:
This is an appeal from a judgment given by the Ogua Native Court on the 11 th June, 1948.
The Plaintiff (now the respondent) J. B. Clarke claimed for himself and on behalf of the other members of the Akyinbah's Section of the Awinadzi Family against Kofi Nkrumah (now an appellant) a declaration of title to land and an injuction.
The record shows that one Nana Kwamin Egyaye II was permitted to defend as a defendant and the joinder was irregular as the Native Court failed to observe the provisions of section 39 of the Native Courts (Colony) Ordinance 1944. These provisions are imperative and without compliance with that section his joinder as a party became void and inoperative.
I will deal now with the appeal made by the defendant Kofi Nkrumah against whom judgment was entered by the Native Court.
The issue was quite clear. The plaintiff's family was admittedly in possession of the land and had been in possession for one hundred years or more.
The plaintiff claimed a title of full ownership by purchase. The defendants pleaded that the plaintiffs were the successors in title to a pledgee and that upon a tender of the redemption money the plaintiffs had denied the pledge and had claimed title by purchase.
The Native Court after hearing the evidence and viewing the land held that the land had been the subject of a sale and not of a pledge.
In the absence of any documentary evidence that issue can be resolved practically solely upon the conduct of the parties in the past.
By custom when the pledgee dies an offering of rum is made to his successor to keep alive and to evidence the transaction of the pledge. The Native Court found it significant that no such offering had been made when one Ampon died - conduct which they considered supported the possession of the land as being resultant rather of a sale than of a pledge.
By customary law a mortgagor or a mortgagee cannot transfer to another any rights which he may have under the mortgage without notice to the other party to the mortgage transaction Sarbah's Fanti Customary Law, 2nd Edition,
page 83. This custom was clearly known to and accepted by Nana Kwamin Egyaye II when he said:
" . . . if a land is in your possession by pledge you have no right to pledge it to another without the original owner's knowledge."
But there is the evidence of Kwesi Essilfie one of the plaintiff's witnesses that a part of this land had been pledged to him for £44 by Ekua Otuwah (the predecessor in title of th