KWANSA v. BRAHIMA
1966
HIGH COURT
GHANA
CORAM
- ARCHER J
Areas of Law
- Customary Law
- Property Law
1966
HIGH COURT
GHANA
CORAM
AI Generated Summary
The case involves the recovery of possession of a cocoa farm pledged as security for a loan. The court decided that the trial should proceed to establish the true nature of the transaction and its legal implications under customary law.
JUDGMENT OF ARCHER J.
The plaintiff’s claim is for recovery of possession of one large cocoa farm containing over 500 trees situate at Botukwa near Agona Mankrong which the plaintiff pledged to the defendant as security for a loan of £G50 received by the plaintiff from the defendant. In respect of the said loan the plaintiff gave the defendant a written memorandum or receipt stating that the said loan was to be repaid from the amount of the proceeds of the cocoa received by the defendant for the period of three years. And as the proceeds from the cocoa farm for the main and middle seasons in each year exceeded £G50, it meant that the defendant was to recoup himself with the proceeds of the first year in respect of the said £G50 and receive the proceeds for the remaining two years as interest on the said loan.
According to paragraph (2) of the statement of claim, the transaction took place about ten years previously. The plaintiff further [p.786] alleges that he left after the transaction for another area to serve as a farm labourer. On his return he demanded the recovery of possession of the farm and the memorandum but the defendant replied that he had sold the cocoa farm to one Opanin Kwesi Edumadzi. The plaintiff also seeks an order for an account.
The defendant by his statement of defence denied liability to account and pleaded not liable to the claim and asked that the claim should be struck out. The plaintiff joined issue with the defendant on paragraphs (1) and (2) of the statement of defence. When the summons for directions was heard the following issues were set down for trial:
“(a) Whether the plaintiff is entitled to the relief as claimed herein.
S. Whether the transaction being one of a pledge by native custom of the cocoa farm in question, the defendant is liable or not.”
At the commencement of the hearing, counsel for the defendant raised a preliminary point of law and quoted Sarbah’s Fanti Customary Laws (2nd ed.) to support his submission that according to custom a pledgee is not accountable to the pledgor. He referred to page 83 of Sarbah’s book where it is stated that, “Where real property has been mortgaged, the mortgagee is absolutely entitled to enjoy, without any hindrance whatsoever, all profits accruing therefrom, nor is he accountable for the profits so enjoyed.” He also cited page 98 of Ollennu’s Principles of Customary Land Law where Blackall P. in the case of Dapaah v. Poku1 in a judgment delivered on 13 June 1950 is repo