ZABRAMA vs. SEGBEDZI [1991]DLCA2330

Date	1991-06-27
Suit No.
Citation No.	[1991]DLCA2330

AMPIAH JA

KPEGAH JA

ADJABENG JJ.A.

APATU-PLANGE FOR THE APPELLANT.

S. A. X. TSEGAH FOR THE RESPONDENT.

[1991]DLCA2330
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													<main id="main" class="content" style="min-height: 60rem" >ZABRAMA<o:p></o:p>vs.<o:p></o:p>SEGBEDZI<o:p></o:p>[COURT OF
APPEAL, ACCRA]<o:p></o:p>[1991] 2
GLR 221<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

</div>COUNSEL:<o:p></o:p>APATU-PLANGE
FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

<p class="MsoNormal" style="margin-bottom:5.0pt;mso-pagination:none;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:31.0pt 31.0pt 1.0pt 31.0pt;
mso-border-shadow:yes">S. A. X. TSEGAH FOR THE RESPONDENT. <o:p></o:p>

<p class="MsoNormal" style="margin-bottom:5.0pt;mso-pagination:none;border:none;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:31.0pt 31.0pt 1.0pt 31.0pt;
mso-border-shadow:yes">AMPIAH, KPEGAH AND ADJABENG JJ.A. <o:p></o:p>

</div>JUDGMENT
OF KPEGAH J.A.<o:p></o:p>On 24
July 1990, this court dismissed the plaintiff’s appeal and reserved its
reasons. I now proceed to give reasons why my vote was cast for its dismissal.
This is an appeal against the judgment of his Honour Judge Aryeetey sitting at
the Circuit Court, Akim Oda dismissing the claim of the plaintiff. The
plaintiff’s claim as indorsed on the writ of summons is for “the redemption of
his house No. A/76, situate lying and being at Bawdua.”<o:p></o:p>The
plaintiff’s case is that during the “Aliens Compliance Order”, a period when
aliens without proper documentation and residence permit were asked to leave
the country, he pledged the said house to the defendant for ¢60. Later, he went
to the defendant and sought financial assistance. The amount involved in this
second transaction was ¢160. Before his departure to Niger the defendant asked
him for a receipt to cover both transactions. The defendant took him to a
letter-writer at Akwatia. This fellow prepared a document which he
thumbprinted. Although he spent four more months in Ghana before leaving for
Niger, the defendant never gave him a copy of the document he executed. After
nine years stay in Niger, he returned and approached the defendant with a view
to redeeming his property but after dilly-dallying for a while, the defendant
claimed the house was sold to him for ¢200. The plaintiff reported the matter
to the police. The defendant produced a document he said evidenced the sale of
the house by the plaintiff to him. The plaintiff therefore decided to bring an
action in the courts to redeem his property from the pledge.<o:p></o:p>At the
trial, the plaintiff claimed the document executed by him and relied upon by
the defendant was never read and explained to him before he made his mark. In
support of his case, the plaintiff called one Dandekwei Zabrama who accompanied
him to the letter-writer and was one of the attesting witnesses. This witness
supported the plaintiff’s claim that the document was not read over and
interpreted to them.<o:p></o:p>I will
say that the evidence of the plaintiff in court is markedly different from his
pleaded case which was that he pledged the house to the defendant for ¢200; not
¢60 as stated by him in his evidence in court. The evidence in court would have
brought the total amount involved and covered by the document to ¢220.<o:p></o:p>The
defendant’s case was that the house in question was sold to him by the
plaintiff for a consideration of ¢200 and that a document evidencing the sale
was executed in his favour by the plaintiff. Before the execution of the
document, it was read over and interpreted to the plaintiff in the Twi language
by the letter-writer who also signed as an attesting witness. In accordance
with the practice prevailing in the traditional area that any document
evidencing the sale of land had to be attested to by the odikro of the town, he
and the plaintiff went to the odikro who invited some of his elders and
counsellors. The document was again read and interpreted to all present,
including the plaintiff and his witness. The plaintiff was then asked if indeed
he was selling the house to the defendant and he replied in the affirmative.
Both were then asked to pay sixteen cedis each to the odikro and his elders
before the chief would consent and attest to the document. They paid the amount
demanded by the chief and the document was accordingly attested to.<o:p></o:p>According
to the defendant, two documents were signed and one was given to the plaintiff.
But before the departure of the plaintiff to Niger, property rate collectors
came to the house to demand payment of the rate but the plaintiff told them he
had sold the house to him so he was no longer liable to pay the property rate.
The plaintiff produced and gave to the collectors his copy of the document.
This was taken away by the rate collectors to enable them make the necessary
changes in their books. Since then he (the defendant) had been paying the
property rate. The defendant called the letter-writer and two others who were
at the chief’s palace as witnesses.<o:p></o:p>The only
issue set out in the summons for directions for trial is “whether or not the
plaintiff pledged house No. A/76 situate at Bawdua to the defendant.” The
learned trial judge in his judgment accepted the story of the defendant and
found that the transaction between the parties was a sale and not a pledge and
dismissed the plaintiff’s claim. It is against this decision that the plaintiff
appealed to this court.<o:p></o:p>In his
notice of appeal the plaintiff stated two grounds of appeal, namely:<o:p></o</main>