BIO vs. YEBOAH [1984]DLCA893

Date	1984-05-03
Suit No.
Citation No.	[1984]DLCA893

APALOO C.J.

ABBAN JA

OSEI-HWERE J.A.

THOMPSON FOR THE APPELLANT.

AHENKORAH FOR THE RESPONDENT

[1984]DLCA893
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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BIO <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 745<o:p></o:p>

DATE:
5 MARCH 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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THOMPSON 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;
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APALOO C.J., ABBAN AND OSEI-HWERE J.J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>Apaloo C.
J delivered the judgment of the court. There used to live in a town called
Bomaa in Brong Ahafo a man called Nana Kwasi Ansu. He was the chief of that
town and the evidence suggests that he was a man of means. He died in or about
1969 possessed of a cocoa farm situate on Bomaa stool land at a place variously
called Biaso or Gambia. He died intestate and by well-known canons of customary
law, that farm became family property. As is customary, the family appointed
one Kwaku Bio as his customary successor. In that capacity he stood possessed
of the farm. He is the appellant before us.<o:p></o:p><o:p>&nbsp;</o:p>In
February 1978 one Kwaku Yeboah (hereinafter called the plaintiff) issued out a
writ in the High Court, Sunyani and invited the court to declare that a
transaction took place between him and the late Ansu in respect of the cocoa
farm succeeded to by the appellant (hereinafter called the defendant) and that
that transaction constituted a customary pledge of the farm. He sought an order
to recover the farm on payment of the pledge money from his successor, the
defendant. The latter denied that any such transaction as the plaintiff alleged
took place. His position was that the plaintiff merely sold his farm to his
predecessor Ansu and that that transaction was evidenced by a written document
which he produced in evidence. The defendant said in 1970 the plaintiff
appealed to the regional commissioner to use his good offices to get back the
farm. He was unsuccessful in this. About five months after this, he made
another appeal to Nana Dormaahene to get him (the defendant) to agree to a
resale of the farm to him.<o:p></o:p><o:p>&nbsp;</o:p>According
to the defendant, he consulted his family on this and he was authorised to
offer the farm to the plaintiff for ¢55,000 but the latter declined to
repurchase it at that price as he claimed it was far too much. For this reason,
he resisted the action.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, of course, admits that Ansu was in possession and in beneficial
enjoyment of the farm until his death. According to him, the transaction of
pledge which he made with Ansu arose in this way: He had borrowed money from a
man from Ejisu and granted a mortgage of the farm to his creditor as security.
He could not meet repayment of the loan on the due date. So the mortgagor
exercised his power of sale and sold the farm by auction. He said the farm was
purchased by an unnamed Ashanti man. The plaintiff said he pleaded with Nana
Ansu to buy back the farm from the purchaser at the price the latter paid for
it so that he Ansu could take over the farm. According to the plaintiff, Nana Ansu
fell in with that suggestion and paid off the purchaser and as he put it
“retrieved the farm.”<o:p></o:p><o:p>&nbsp;</o:p>According
to the plaintiff, he then approached the Dormaahene “to approach Nana Kwasi
Ansu on my behalf to have the farm handed over to me for a pledge.” He said
Nana Ansu agreed to this but asked him to prepare a document to record the
“pledging.” He said he complied and prepared such a document. He said it was a
promissory note which was signed by himself, Nana Dormaahene and Kwasi Ansu.
Having apparently signed this written “pledge” the plaintiff said he went back
to Dormaahene, this time to solicit his assistance to appeal to Ansu “to hand
over the land to me.” This was apparently an oral transaction and according to
him, Ansu again obliged and this agreement was sealed with a customary drink.
Nana Ansu was prepared to release the farm to him anytime he paid £3,800.<o:p></o:p><o:p>&nbsp;</o:p>