DZANKU vs. KWADWO [1960]DLCA138

Date	1960-03-08
Suit No.
Citation No.	[1960]DLCA138

KORSAH C.J.

VAN LARE J.A.

GRANVILLE SHARP J.A.

AMORIN FOR APPELLANT.

THE COURT CALLS COUNSEL’S ATTENTION TO KOFI V. KOFI 1 W.A.C.A. 284

TO NKOOM V. ETSIAKU FULL COURT 1922 3.

AMORIN: I HAVE READ THE JUDGMENTS

NOW LEAVE THE MATTER IN THE HANDS OF THE COURT

NO APPEARANCE FOR RESPONDENT (DZANKU).

[1960]DLCA138
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													<main id="main" class="content" style="min-height: 60rem" >DZANKU<o:p></o:p>&nbsp;vs. <o:p></o:p>KWADWO<o:p></o:p>&nbsp;[COURT
OF APPEAL]<o:p></o:p>[1960] GLR 31<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
8TH MARCH, 1960.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AMORIN FOR APPELLANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

KORSAH, C.J., VAN LARE, J.A. AND
GRANVILLE SHARP, J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORSAH C.J.<o:p></o:p>(Who
delivered the judgment of the court referred to the facts and continued):<o:p></o:p>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: —<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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.”<o:p></o:p><o:p>&nbsp;</o:p>On appeal
to the Land Court, Manyo-Plange, J., after discussing the evidence and the
grounds of appeal, concluded thus:—<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“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.”<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>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 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 do so. And since by native custom a pledgee is entitled to use the property
pledged, for his own benefit and without accounting to the pledgor, the fact
that the pledgee has spent money to improve the property cannot bar the pledgor
from recovering the property upon payment of the debt.<o:p></o:p><o:p>&nbsp;</o:p>