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NSUTA V. MENSAH & ORS


  • appeal
  • 1961-05-15
  • SUPREME COURT
  • 1 GLR 232-235
  • Print

VAN LARE, SARKODEE-ADOO AND AKIWUMI, JJ.S.C.


Summary

Customary law?-Land?-Agreement between plaintiff and family whereby plaintiff surrendered his title to disputed property?-Family agreed to repay purchase [p.233] price to plaintiff?-Agreement sealed with drinks?-Plaintiff not paid?-Whether he can bring action in respect of title to property. Mortgage?-Effect of sale on prior existing mortgage.

Headnotes

The plaintiff bought the farm in dispute at an auction sale following a writ of fi. fa. in pursuance of a judgment recovered by one Owusu against Kwaku Barwuah, the owner of the farm and the fourth defendant herein. The plaintiff and the said Kwaku Barwuah were members of the same family. After the purchase, the family asked the plaintiff to surrender his title to the farm in order to accommodate Barwuah, who would be in position to raise loans on the property to pay the plaintiff the purchase price and to pay Barwuah?'s other creditors. The plaintiff agreed to this surrender of his title and a bottle of gin was provided, sealing the agreement according to customary law.Prior to the purchase of the disputed farm, and as a result of a family meeting attended by the plaintiff, a legal mortgage had been executed in respect of the said farm and was still valid at the date of the plaintiff's purchase. After the plaintiff surrendered his title in accordance with the agreement, the mortgage, the second defendant, exercised his power of sale under the mortgage and caused the farm to be sold to Mensah, the first defendant who thereupon went into possession and occupation. The plaintiff, relying upon his title and interest before the agreement with the family, sued for declaration of title, the purchase price not having been refunded to him.

Judgement

APPEAL from a judgment of the Land Court, Kumasi by the Commissioner of Assize and Civil Pleas (D.E. Gwira, esq.) delivered on the 11th February, 1960, reversing the decision of the Asantehene's "A2" Court and restoring the decision of the Mponua Local Court "C" in an action for declaration of title to land. The facts, taken from the judgment of the Supreme Court, are set out in the headnote.

JUDGMENT OF VAN LARE J.S.C

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.

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 [p.234] G301 10s. He subsequently obtained a certificate of purchase issued by the said Kumasi East District Native Court, dated the 11th March, 1958.

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.

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.

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 rather appeared to deny knowledge of its existence. But the totality of the evidence makes it so clear that the plaintiff knew of the fact that the disputed farm had in fact been mortgaged to Kwabena Yeboah, the second defendant, long before his purchase, and we must therefore hold that in the circumstances the plaintiff's purchase must be subject to the mortgage, because what he really bought at the auction sale was only the right, interest and title which Kwaku Barwuah, the judgment-debtor, had at that time. The plaintiff knew at the date of his purchase that the property had been encumbered [p.235] and we venture to say that it was this realisation that induced him to accept "the apology" and surrender his interest in the property in order to accommodate Kwaku Barwuah. Subsequent to the plaintiff?'s surrender of his title, the mortgagee, Kwabena Yeboah, the second defendant, exercised his power of sale under the mortgage, and caused the farm in dispute to be sold to Kwabena Mensah, the first defendant in this case. The third defendant was the auctioneer who conducted the sale at the instance of the mortgagee, the fourth defendant Kwaku Barwuah being the owner-mortgagor. After the foreclosure and sale as described the first defendant went into possession and occupation but the plaintiff not having received his expected money, and apparently still relying on his interest which he had surrendered, instituted this action for a declaration of title.

The Mponua trial Local Court "C" in a majority decision found for the plaintiff without giving consideration to the effect of the surrender of his title. On appeal, however, to the Asantehene?'s ?"A2" Court the judgment of the trial local court was in our view rightly reversed on the ground that according to customary law the agreement between the plaintiff and the family on behalf of the fourth defendant Kwaku Barwuah, whereby the plaintiff was deemed to have surrendered his title to the farm in dispute was valid and binding upon the plaintiff, the main point of the decision in the case being that the plaintiff had no title in respect of which he could bring this action. We agree with this decision and are of opinion that at the most what the plaintiff is entitled to is a recovery of his purchase price of G301 0s. in accordance with the agreement which he made with the family when he surrendered his title. From this decision of the Asantehene?'s ?"A2" Court, an appeal was taken to the Land Court at Kumasi, before D.E. Gwira, Esquire, Commissioner of Assize and Civil Pleas, who without stating reasons reversed the decision of the Asantehene?'s ?"A2" Court.

It is plain from what we have indicated that the decision of the Asantehene's "A2" Court was right and the learned Commissioner of Assize and Civil Pleas therefore erred in setting it aside. In the result we allow the appeal and set aside the judgment, together with the order as to costs made by the Land Court and restore the judgment of the Asantehene?'s ?"A2" Court.

Decision

<P>Appeal allowed.</P> <P>Judgment of Asantehene's "A2" Court restored.

Plaintiff / Appellant

Kofi Sackey

Defendant / Respondent

E.K Edusei

Referals

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