KWANSA vs. BRAHIMA [1966]DLHC1707

Date	1966-12-09
Suit No.
Citation No.	[1966]DLHC1707

ARCHER J.

T.D. BRODIE-MENDS FOR ABADOO FOR THE PLAINTIFF.

HAYFRON-BENJAININ FOR THE DEFENDANT.

[1966]DLHC1707
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													<main id="main" class="content" style="min-height: 60rem" >KWANSA<o:p></o:p>&nbsp;vs. <o:p></o:p>BRAHIMA <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1966] GLR 784<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">

DATE:
9 DECEMBER 1966.<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">

T.D. BRODIE-MENDS FOR ABADOO FOR THE PLAINTIFF.<o:p></o:p>

HAYFRON-BENJAININ FOR THE DEFENDANT.<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">

ARCHER J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.<o:p></o:p>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.<o:p></o:p><o:p>&nbsp;</o:p>According
to paragraph (2) of the statement of claim, the transaction took place about
ten years previously. The plaintiff further 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.<o:p></o:p><o:p>&nbsp;</o:p>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:<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">“(a)
Whether the plaintiff is entitled to the relief as claimed herein.<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">S.
Whether the transaction being one of a pledge by native custom of the cocoa
farm in question, the defendant is liable or not.”<o:p></o:p><o:p>&nbsp;</o:p>At the
commencement of the hearing, counsel for the defendant raised a preliminary
point of law and quoted Sarbah’s Fanti Customary Laws (2nded.) 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 reported as saying:<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
essence of a native mortgage is that the mortgagee gets possession and enjoys
the profits without accounting for them, while the mortgagor on his part may at
any time redeem the mortgage, provided he pays back the loan and also all the
expenses which the mortgagee has been put to.”<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the plaintiff maintained that the plaintiff obtained a loan from the
defendant who agreed to pluck cocoa for three years and recoup himself with the
proceeds of sale. A memorandum was then prepared with the defendant and
therefore the action was maintainable.<o:p></o:p><o:p>&nbsp;</o:p>