NSUTA vs. MENSAH & ORS [1961]DLHC5430

Date	1961-05-15
Suit No.
Citation No.	[1961]DLHC5430

VAN LARE JSC

SARKODEE-ADOO JSC

AKIWUMI J.S.C.

KOFI SACKEY FOR THE APPELLANTS.

E.K EDUSEI FOR THE RESPONDENT.

[1961]DLHC5430
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">NSUTA <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">MENSAH &amp; ORS<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, HO]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

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

KOFI
SACKEY FOR THE APPELLANTS.<o:p></o:p>

E.K
EDUSEI FOR THE RESPONDENT.<o:p></o:p>

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

VAN LARE JSC, SARKODEE-ADOO
JSC, AKIWUMI J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF VAN
LARE J.S.C<o:p></o:p>Van Lare J.S.C. delivered the judgment of the court. All the
parties except the second defendant in this case appear to be related and may
be said to belong to one and the same family. It would appear that the fourth
defendant, Kwaku Barwuah, became involved in a series of debts and was the
owner of certain properties. There is no doubt that the farm in dispute in this
case also originally belonged to the said Kwaku Barwuah.<o:p></o:p><o:p>&nbsp;</o:p>The facts upon which the plaintiff based his action may be
recorded thus: the plaintiff bought the farm in dispute at an auction sale
following a writ of fi. fa. in pursuance of a judgment of the Kumasi East
District Native Court recovered by one Yaw Owusu per J.A. Ntsiaku against Kwaku
Barwuah, the owner of the farm in dispute. The sale took place on the 17th
February, 1958, when the plaintiff bought the farm for the sum of £G301 10s. He
subsequently obtained a certificate of purchase issued by the said Kumasi East
District Native Court, dated the 11th March, 1958.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff alleged that after his said purchase of the farm he
was invited by the family and asked to surrender his title in order to
accommodate the judgment-debtor, Kwaku Barwuah, his relative, in order that
Kwaku Barwuah, the original owner, should be free to negotiate with the
property to raise loans to pay back to him, the plaintiff, his purchase price,
and to pay his other creditors. According to the plaintiff’s own evidence he
conceded to the request (“the apology”) and agreed to relinquish his title to
the property which he had bought, and this agreement was sealed according to
customary law. We quote from the plaintiff’s evidence as follows: “I agreed to
the apology and a bottle of gin was provided on my consent”. It does appear
that under customary law as stated by the Asantehene’s “A2” Court, this became
a binding agreement from which the plaintiff could not resile. According to the
plaintiff’s version, when later agreements were made, Kwaku Barwuah negotiated
with the property and raised a loan on it, but because his purchase price had
not been refunded to him, and on this ground only, the plaintiff decided to
re-claim the disputed farm and therefore instituted this action against the
defendants claiming declaration of title.<o:p></o:p><o:p>&nbsp;</o:p>We are of opinion that upon all the materials available before us
the plaintiff has misrepresented some aspects of the true facts. We are
satisfied on the evidence that long before the sale at which the plaintiff
bought the farm in dispute, it had been agreed at a family meeting at which the
plaintiff was present that owing to the various debts of Kwaku Barwuah, the
owner of the property, a loan should be raised from one Kwabena Yeboah, the
second defendant, in order to settle the debts. Accordingly a loan had been
raised from the second defendant to whom the farm in dispute together with
another one had been mortgaged, as evidenced by a deed of indenture made on the
4th February, 1957, between Kwaku Barwuah and others on one part, and Kweku
Yeboah, the moneylender, on the other part. This document, which was in fact
exhibited at the trial, was not included in the list of the exhibits and
therefore did not receive the due consideration and attention in either of the
courts below. The case proceeded in all the courts below without reference to this
important document of mortgage in respect of the disputed farm.<o:p></o:p><o:p>&nbsp;</o:p>An examination of this document discloses that a legal mortgage
had in fact been executed in respect of the farm in dispute and was still valid
at the date of the plaintiff’s purchase. This fact the plaintiff in his
evidence before the trial native court refused to admit; he ra</main>