KWASHIE GBO v. KWABENA ANTIE & OTHERS

J U D G M E N T

WOOD (MRS), J.S.C. -

The Plaintiff/ Respondent was the original owner of the subject matter of this appeal; House No. 270/9, Accra New Town. Unfortunately, it was sold by public auction at the instance of the Accra City Council in August 1987 and bought by one Odartey Lamptey (PW2). But thereafter, he sold the property, (so he thought), to the Respondent after he had been paid an amount of C1800 representing the cost of the auction price and other incidental expenses he alleged he had incurred. His story is that he was moved by the tearful pleas of the Respondent, the original owner and his family to relinquish his interest in the property. The repayment to him was not effected by the Respondent alone, but with the full participation of the Appellants and their witness, DW2.The puzzle which our courts have been trying to unravel for the past nineteen years is; who actually bought this property? Was it the Respondent, or the 2nd Appellant for the simple reason that, oddly, both parties are now laying claim to it? While the Respondent contends that he borrowed money from the 1st Appellant’s father to redeem the property for himself, with the clear understanding that the lender collects the rents and uses it to defray the loan, and clearly therefore in circumstances that amount to a pledge, the 2nd Appellant on the other hand maintains that the transaction between herself and the Respondent was not a pledge, but an outright sale of the property to her, with the original owner only serving as the conduit.

The Respondent maintains that he was compelled by the Appellants’ failure to account for all rents collected, to institute this action in 1988 (1) to recover possession of the house and (2) for an order of account of all rents collected from January 1970 to the date of judgment. Both the trial and appellate courts determined the principal issue of whether the transaction between the parties was a pledge or an outright sale in the Respondent’s favour. Dissatisfied with the decision of the Court of Appeal, they have, in this appeal before us, challenged it on the grounds that:

“(a) The judgement was against the weight of the evidence of the record.

(b) The Court of Appeal was in error in accepting the decision of the trial court judge that the grounds for rejecting exhibits R1 and R2 namely (a) on improper stamping (b) non disclosure of the name of the person administering the jurat or improper jurat or non jurat were right in law.

(c) Bot