KANO vs. KALLA AND ANOTHER [1977]DLCA1341

Date	1977-05-26
Suit No.
Citation No.	[1977]DLCA1341

APALOO JA

LASSEY JA

ANIN J.A.

E. B. GAISIE FOR THE APPELLANT.

ESSIEN FOR THE RESPONDENTS.

[1977]DLCA1341
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													<main id="main" class="content" style="min-height: 60rem" >KANO <o:p></o:p>vs. <o:p></o:p>KALLA AND ANOTHER <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977] 2 GLR 367<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:
26 MAY 1977<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">

E. B. GAISIE FOR THE 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">

APALOO, LASSEY AND ANIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A.<o:p></o:p>For about
eight years the plaintiff, a Takoradi butcher, bought cows on credit from one
Ibrahim Faleke, who was the agent in Ghana of the first defendant, a cattle
dealer domiciled in Nigeria. By 1958, the plaintiff had accumulated a sizeable
debt on the cattle transaction; and the parties were disputing about the exact
size of his debt, and the mode of its payment. Eventually, they agreed on a
transaction designed to wipe off the plaintiff’s indebtedness. This present
litigation is all about the true nature of the transaction mutually agreed upon
in 1958 by the parties.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff’s case in the court below was that by 1958 his debit balance on the
cattle transaction amounted to ¢2,600; and that he verbally agreed with Ibrahim
Faleke, firstly, to pledge his house (then numbered 37/3, Effia Kuma but now
renumbered 66/3) to the first defendant as a security for his outstanding
cattle debt; and secondly to permit the defendants to collect accruing monthly
rent of ¢50 or ¢600 per annum for a period of five years in liquidation of the debt.
It was further agreed that the first defendant should be responsible for the payment
of all rates and taxes exigible on the house for the duration of the pledge;
and that at the expiration of the term he should surrender the house to the
plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>By virtue
of this pledge agreement, the defendants duly entered into possession of the
house in 1958, and they had been collecting the accruing rent since then.
Despite the effluxion of the five-year term and the repayment of the whole debt
in the meantime, the first defendant and his caretaker, the second defendant,
had up to the date of the trial of the action in 1969 refused to the surrender
of the plaintiff’s house to him, and were even claiming to be the owners by
purchase as a result of the 1958 transaction.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants’ rival case was that the debt owed by the plaintiff on the cattle
transaction stood in 1958 at ¢3,100; and, being unable to settle it upon demand
made, the plaintiff offered to sell his house now in dispute in order to raise
sufficient money to liquidate his debt. The asking price was ¢4,400; and Faleke
agreed to buy it at that price for and on behalf of his principal, the first
defendant. It was accordingly agreed before witnesses that the plaintiff’s
outstanding debt of ¢3,100 should be deducted from the selling price of ¢4,400.
The balance of ¢1,300 on the selling price was paid in the following manner:
part-payment totalling ¢300 was made by the first defendant’s agent, Faleke, in
two instalments of ¢100 on the sale date and ¢200 the next day, leaving a final
balance of ¢1,000 which was to be collected from the defendant in Nigeria by
the plaintiff’s agent Tanko Butcher. Pursuant to this verbal agreement, Faleke
gave Tanko Butcher a letter authorising him to collect this final balance of
¢1,000 from the first defendant in Nigeria; and Tanko Butcher duly collected
this outstanding amount from the latter.<o:p></o:p><o:p>&nbsp;</o:p>Both in
his reply and evidence, the plaintiff denied the alleged sale of his house; but
admitted sending Tanko Butcher to the first defendant in Nigeria, not as
contended by his opponents to collect the final ¢1,000 balance on the selling
price of his house, but to purchase cows worth ¢1,000 on credit from his
creditor. By this action, the plaintiff therefore claimed recovery of possession
of his house; an order of account of rents collected by the defendants since
their entry into possession and mesne profits.<o:p></o:p><o:p>&nbsp;</o:p>From the
above summary of the rival cases of the parties it is clear that the main bone
of controversy in this suit was whether the 1958 transaction was an outright
sale of the plaintiff’s house in favour of the first defendant (as alleged by
the defendants) or whether it was merely a customary pledge which was to endure
for five years (as claimed by the plaintiff).<o:p></o:p>