|
Property - Ownership -
Declaration of title - Leasehold
- Sub-lease - whether the
transaction was executed to
transfer the interest by way of
sale to the defendant - whether
the document purported to
transfer ownership of the
property in dispute to the
respondent.-
HEADNOTES
William Buachie Aphram acquired
the leasehold, the
subject-matter of these
proceedings from the Asantehene
for a period of ninety-eight
years and two months. The
lessee put up a building on the
leasehold property. Later the
said Buachie Aphram granted a
sub-lease of the property in
dispute to one John Melekos for
a period of fifty years. Upon
the expiration of the sub-lease
the plaintiff wrote to the
defendant to vacate the property
but the defendant refused to
vacate. However, in August of
2001 the defendant wrote a
letter to the plaintiff that the
occupants/ trespassers were his
tenants. It thus appeared that
the defendant asserted title to
the property at that point in
time. On the part of the
defendant, it was pleaded that
indeed there was the original
lease and sub-lease on the
property but that when Buachie
Aphram died and before the
sub-lease expired, the
sub-lessee, John Melekos acting
per his attorney one Nicholas
Smyrnioudes by a deed and for
valuable consideration in March
of 1968 assigned the residue of
the sub-lease to the defendant.
the trial judge after
considering the evidence on
record gave judgment for the
appellant and proceeded to
dismiss the counterclaim of the
respondent. The Court of Appeal
on 28/10/2011 allowed the appeal
by reversing the judgment of the
trial High Court and proceeded
to enter judgment for the
respondent on the counterclaim.
.
HELD
On the issue of damages, as it
is now clear that the
transaction in this case was a
pledge and not a mortgage, we do
not think that it would be fair
to award damages against the
respondent as in law he is
entitled to possession and
enjoyment of rents accruing from
such occupation. In conclusion
we allow the appeal and set
aside the judgment of the Court
of Appeal and restore the
judgment of the High Court, save
for the issue of damages
STATUTES REFERRED TO IN JUDGMENT
Mortgages Act, 1972 NRCD 96
CASES REFERRED TO IN JUDGMENT
YORKWA v DUA [1992-93] GBR 278
CA
ASANTE-KORANTENG v TAMAKLOE &
DERBAN [2007-08] 2 SCGLR 852
Mahama Hausa & Ors v Baako Hausa
& Or [1970] CC 73 CA.
Agloe v Sappor [1947] 12 WACA
137,
Acolatse v Ahiableame [1962] 2
GLR 34 SC
Awortchie v Eshon [1947] 12 WACA
187
DOTWAAH v AFRIYIE [1965] GLR 257
ATTA v AMISSA & OR [1970] CC 73
CA
Bisi V Tabirs alias Asare
[1987-88] 1 GLR 360 SC
Bruce v Attorney-General [1967]
GLR 170
Kwansa v Brahima [1966] GLR 784
Cook v Kutsoatsi [1960] GLR 96.
Vernon v Bethel (1762) 28 ER 838
Agbo Kofi v Addo Kofi (1933) 1
WACA 284;
Kuma & Anor v Kofi & Ors (1957)
1 WALR 128;
Dadzie & Boateng v Kokofu [1961]
1 GLR 91 SC;
Kwaku v Krah & Anor [1967] GLR
50;
Agyemen VI v Nkum & Anor
[1982-83] 1 GLR520.
Dapaah v Poku (1950) Ollennu
Customary Law Cases p. 173,
BOOKS
REFERRED TO IN JUDGMENT
Customary Land Law in Ghana by
N.A Ollenu
Ewe Law of Property A. K. P.
Kludze,
DELIVERING THE LEADING JUDGMENT
ANIN YEBOAH, JSC.
COUNSEL
MUJEEB RAHMAN AHMED FOR THE
DEFENDANT/APPELLANT/RESPONDENT
WITH HIM ANNIS MOHAYIDEEN
KWASI AFRIFA FOR
PLAINTIFF/APPELLANT
---------------------------------------------------------------------------------------------------------------------
J U D G M E N T
---------------------------------------------------------------------------------------------------------------------
ANIN YEBOAH, JSC.
The appellant herein commenced
an action at the High Court,
Kumasi, in his capacity as a
principal member for an on
behalf of himself and other
members of William Buachie
Aphram family of Abrepo. The
action was for a declaration of
title to a property described as
H/№ OTB 589, Asomfo Road,
Kumasi, and other ancillary
reliefs against the respondent
herein.
From both the pleadings and the
evidence placed before the trial
court, certain material facts
were not in controversy. The
said William Buachie Aphram
acquired the leasehold, the
subject-matter of these
proceedings from the Asantehene
in February of 1945 for a period
of ninety-eight years and two
months. The lessee put up a
building on the leasehold
property. Later the said Buachie
Aphram granted a sub-lease of
the property in dispute to one
John Melekos for a period of
fifty years. The sub-lease
expired on 27/02/2001. Upon the
expiration of the sub-lease the
plaintiff wrote to the defendant
to vacate the property but the
defendant refused to vacate. It
appears that there were some
people occupying the property
which the trial court and the
Court of Appeal described as
trespassers. The plaintiff
wrote to them to vacate but he
was equally ignored. However,
in August of 2001 the defendant
wrote a letter to the plaintiff
that the occupants/trespassers
were his tenants. It thus
appeared that the defendant
asserted title to the property
at that point in time.
On the part of the defendant, it
was pleaded that indeed there
was the original lease and
sub-lease on the property but
that when Buachie Aphram died
and before the sub-lease
expired, the sub-lessee, John
Melekos acting per his attorney
one Nicholas Smyrnioudes by a
deed and for valuable
consideration in March of 1968
assigned the residue of the
sub-lease to the defendant.
After the death of the original
lessee William Buachie Aphram on
20th September, 1973,
one Frank Obeng Aphram his
successor and head of family,
obtained financial assistance of
Gh¢10,000,000.00 from the
defendant to repay same without
interest on or before the 31st
of December 2000 and offered the
property in dispute as security
with the promise that upon
default the defendant would have
the right to take possession and
the plaintiff would forfeit his
right to the property. This
transaction was reduced into
writing and executed by both
parties in presence of two
members of the appellant’s
family who as illiterates
thumbprinted. The respondent,
based on the facts pleaded put
up a counterclaim for an order
of specific performance against
Frank Obeng Aphram. The
respondent also sought perpetual
injunction as an ancillary
relief. When the counterclaim
was served on Frank Obeng
Aphram, he entered appearance
and filed statement of defence.
Given the nature of the case and
the fact that several admissions
were made, few issues emerged
for determination by the learned
trial judge. On the 23/4/2007,
the trial judge after
considering the evidence on
record gave judgment for the
appellant and proceeded to
dismiss the counterclaim of the
respondent.
The respondent lodged an appeal
to the Court of Appeal, Kumasi,
on two main grounds; namely:
“The judgment is unreasonable
and cannot be supported having
regard to the evidence and
lastly, the award of damages
against the defendant is
erroneous in law”
The Court of Appeal on
28/10/2011 allowed the appeal by
reversing the judgment of the
trial High Court and proceeded
to enter judgment for the
respondent on the counterclaim.
It is against this judgment of
the Court of Appeal that the
appellant has lodged this appeal
before us on several grounds
stated in the notice of appeal
as follows;
(a)
The judgment is against the
weight of evidence
(b)
The Honourable Court erred in
drawing wrong inferences from
the findings of fact made by the
trial court.
(c)
The Honourable Court substituted
speculation and hypothesis for
the positive findings of fact,
analysis and sound reasoning of
the trial court.
(d)
The resort to and reliance on a
dissenting opinion in a case
which if properly understood and
appraised would have supported
the case of the
plaintiffs/respondents/appellants
is impermissible and erroneous
in law.
(e)
The inferences with the
discretion of the trial court
relative to damages is erroneous
and unwarranted in law.
(f)
A substantial miscarriage of
justice has been occasioned the
plaintiffs/respondents/appellants
by the erroneous analysis and
conclusions of the Honourable
Court.
In arguing the grounds of
appeal, learned counsel had
little to complain against the
judgment of the Court of
Appeal. In his lengthy
statement of case filed on
behalf of the appellant no
effort was made to demonstrate
the pieces of evidence on record
which were erroneously ignored
against his client. As pointed
out earlier in this delivery,
several matters were devoid of
controversy. In the judgment of
the Court of Appeal, they stated
thus:
“From the evidence of the
parties, it is clear and
undisputed that H/№ OTB 589,
Adum-Kumasi was the
self-acquired property of
William Buachie Aphram. He was
granted a lease of plot №OTB 509
by the Asantehene on 5th
February 1945. The lease is
evidenced by Exhibit “A”. On 28th
February, 1951 William Buachie
Aphram granted a sub-lease of
the property to John Melekos for
a term of 50 years which is
evidenced by Exhibit “D”.
Before the expiration of the
sub-lease, John Melekos assigned
the residue of his sub-lease to
the defendant Joseph Tuffuour
Osei on 15th March
1968. The assignment was
registered at the Lands Registry
as № 585/1969 and tendered as
Exhibit “1”.
There is evidence on record to
support the finding made by the
trial court that up till date
Frank Obeng Aphram had not
repaid that loan to Joseph
Tuffuour Osei”
Of all the grounds set down for
this appeal ground B appears to
be the contentious one. As
pointed out in this delivery,
the parties do not dispute the
findings made by the trial
judge. The Court of appeal
affirmed the learned trial
judge’s finding that Frank Obeng
Aphram received financial
assistance of Gh¢10 million from
the defendant. We think that
where the trial judge and the
Court of appeal differed was
whether the transaction in
Exhibit “2” was executed to
transfer the interest of William
Buachie Aphram’s family by way
of sale to the defendant herein.
To appreciate the real
transaction between Frank Obeng
Aphram and the respondent herein
it must be made clear that the
parties executed Exhibit “2”
which was tendered through the
second defendant in the
counterclaim at the trial
court. The said agreement
expressly sought to evidence the
transaction between the parties
whereby the said Frank Obeng
Aphram received an amount of
Gh¢10,000,000.00 and used the
subject-matter as security with
the understanding that if the
debt was not repaid on or before
the 31/12/2000, the respondent
herein was to have possession of
the property.
One crucial issue which the
Court of Appeal ignored to
consider in detail was the legal
effect of exhibit “2”. The said
Frank Obeng Aphram did not deny
ever executing the document, in
favour of the respondent. It was
therefore the duty of the trial
court to ascertain from the
evidence on record whether the
document purported to transfer
ownership of the property in
dispute to the respondent.
Since the parties were bound by
the document which was admitted
in evidence the court ought not
to have dwelt so much on oral
evidence to contradict what the
parties themselves had put up to
bind them.
In the case of YORKWA v
DUA [1992-93] GBR 278 CA,
the Court of Appeal made it
clear that where there exists
(a) documentary evidence
preference must be given to it
than oral evidence provided the
when documentary evidence is
found to be authentic. The
court at page 293 said:
“Whenever there is in
existence a written document and
oral evidence over a
transaction, the practice in
this court is to consider both
the oral and the documentary
evidence, especially where the
documentary evidence is found to
be authentic and the oral
evidence conflicting”
See the case of Wood (subs) by
ASANTE-KORANTENG v
TAMAKLOE & DERBAN [2007-08]
2 SCGLR 852
The learned trial judge and the
Court of Appeal did not allow
extrinsic evidence to contradict
the document which formed the
basis of the transaction. The
learned trial judge found as a
fact that Exhibit “2” was indeed
executed by the said Frank Obeng
Aphram. He however proceeded to
evaluate the evidence to
ascertain whether as a mere
customary successor the said
Frank Obeng Aphram had the
authority to deal with the
property so as to pass ownership
to the respondent.
The customary law position in
matrilineal system of
inheritance before the Intestate
Succession Law, PNDCL III of
1985 is that upon the death
intestate of a person all his
self-acquired property vests
automatically in the matrilineal
family. This is trite
learning. See Mahama Hausa &
Ors v Baako Hausa & Or
[1970] CC 73 CA. The customary
successor could not alone as
head of the immediate family of
the deceased dispose of the land
to a stranger. It calls for the
Head of Family and the principal
members concurrence to validate
such a transaction. The learned
trial judge based on the
available evidence found that
the two members of the family of
the original lessee executed
Exhibit “2” but they were not
principal members. He reasoned
as follows;
“There is nothing on record to
support a finding that Abena
Adade and Opanin Atta Kwame
thumprinted the loan agreement
(Exhibit 2) as principal members
of Boachie Aphram family. If
they did so as principal members
of that family, an alienation or
transfer of such family property
by Frank Obeng Aphram and only
two of the principal members of
the family cannot be valid”
The trial judge proceeded to
cite several old cases on the
alienation of family property
like Agloe v Sappor
[1947] 12 WACA 137, Acolatse
v Ahiableame [1962] 2 GLR
34 SC and Awortchie v
Eshon [1947] 12 WACA 187 to
support his opinion that lack of
consent from principal members
of the family invalidated the
alienation. It must be pointed
out that as a trial court it was
enjoined to make primary
findings of facts on the
available evidence. In this
appeal before us, it was clear
from Exhibit “2” that it was not
executed for and on behalf of
the family which by operation of
well known canons of customary
law had become a family
property. The operative part of
the promissory note, that is,
Exhibit “2” states as follows;
“THAT the said FRANK OBENG
APHRAM alias KWABENA NYAMEKYE
has used his House № OTB 589,
Adum, Kumasi as security and in
default of payment of the said
sum within the stipulated
period, i.e. 31st day
of December, 2000 the said FRANK
OBENG APHRAM alias KWABENA
NYAMEKYE will forfeit his House
№ OTB 589, Adum, Kumasi and
J.T.Osei has every right to take
possession of the said House №
OTB 589, Adum, Kumasi”
As pointed out earlier in this
delivery, Frank Obeng Aphram was
just a customary successor of
William Buachie Aphram the
original owner of the property.
Under customary law he as the
successor of the late William
Buachie Aphram became the head
of the immediate family. This
is well settled by authorities
like DOTWAAH v AFRIYIE
[1965] GLR 257 and ATTA v
AMISSA & OR [1970] CC 73
CA. The issue which the learned
trial judge rightly considered
was whether he as customary
successor could alienate the
property in the manner he did. A
customary successor, whether he
vests the property in himself or
not has very limited powers in
dealing with inherited property
in matters of alienation as the
property is owned by the
family. As the property had
become a family property he had
no legal right to transact with
the property the way he did.
Indeed the jurat apparent on
exhibit “2” makes the deed more
problematic to rely on. The two
witnesses who the respondent
throughout the case contended
were principal members of the
appellant’s family thumbprinted
exhibit “2” in a manner which
shows that it did not even
describe any of them as (a)
principal members of William
Buachie Aphram’s family. For a
more detailed examination of the
jurat it is reproduced as
follows:
“Thumbprinted by the
within-named Frank Obeng Aphram
alias Kwabena Nyamekye after the
contents have been interpreted
and explained to him in the Twi
language by KWABENA DANKWA of
Kumasi when he seemed perfectly
well to understand same before
making his mark in the presence
of
1.
Madam Abena Adade
2.
ATTA KWAME
MEMBER OF APHRAM FAMILY OF
ABREPO, KUMASI”
Assuming the nature of the
document or the circumstances of
the case called for extrinsic
evidence, no such evidence was
led by the respondent who sought
to heavily rely on it to assert
ownership of the property in
dispute in the face of stout
denial by the appellant. The
learned trial judge was on the
evidence left with no options
than to hold that the alienation
of the property in dispute was
invalid.
The learned Justices of the
Court of Appeal, however, held
that there was the consent and
concurrence of the principal
members of the family of the
appellant. With due respect, it
was wrong inference drawn from
the undisputed facts and the
documentary evidence on record.
As an appellate court it ought
not to reverse findings of facts
which were supported by the
uncontroverted evidence on
record unless the finings were
perverse which was not the case
in this appeal. Adade JSC in
Bisi V Tabirs alias
Asare [1987-88] 1 GLR 360 SC
said at page 368 as follows:
“I cannot believe that it was
ever intended that the Court of
Appeal (or any appellate court
for that matter) should move
into a new era of regular
questioning of decisions of
trial judges on issues of fact,
as distinct from law, which were
supportable. For this
reasons there could be no
grounds for caviling at the
judge’s exercise of discretion
on duty in the selection of
witnesses to believe or in
stating his findings of fact”
This is the time-honoured
principle which has guided
appellate courts in exercising
their appellate jurisdiction
when findings of facts made by
the trial courts are in issue on
appeal. See Bruce v
Attorney-General [1967] GLR
170. As the inferences drawn
from the findings were wrong we
proceed to set it aside and hold
that the two witnesses to the
transaction were not, from the
evidence, shown to be principal
members of the family of the
original lessee.
We could have rested the
allowance of this appeal on the
above ground alone but learned
counsel for the appellant put in
a lot of industry to demonstrate
in his written statement of case
that the transaction was a
mortgage. This was certainly
countered by the respondent’s
counsel. We think we owe it a
duty not to ignore these
submissions from both counsel.
The transaction which is in
issue was duly entered into by
two natives in Kumasi, Ghana.
It was obvious from the evidence
before the court that they
executed Exhibit “2” to regulate
the transaction. One cannot go
beyond Exhibit “2” and draw
inferences outside its clear
terms like what the Court of
Appeal proceeded to do.
In principles of Customary Land
Law in Ghana by N.A Ollenu at
page 94, the learned jurist
described pledge as follows:
“… the delivery and custody
of property, real or personal,
by a person to his creditor to
hold and use until the debt due
is paid, an article borrowed is
returned or replaced, or
obligation discharged”
The transaction under
consideration clearly fits into
the above definition of a
pledge. Both parties were
natives, as pointed out earlier
in this delivery. If they had
sought to resort to any other
mode of transaction they could
have spelt same out in Exhibit
“2”. Exhibit “2” was executed
on 21/09/1975 and was indeed
prepared by a solicitor. We
think that even though section 2
of the Mortgages Act, 1972 NRCD
96 was in force when it was
executed, the section did not
however abolish customary
pledges. Section 2 states as
follows:
“Every transaction, which is in
substance a mortgage of
immovable property, whether
expressed as a mortgage,
charge, pledge of title
documents, outright conveyance,
thrust for sale on condition,
lease, hire-purchase,
conditional sale, sale with
the right of repurchase or in
any other manner, shall be
deemed to be a mortgage of
immovable property and shall be
governed by this Decree”
The difference between customary
pledge and mortgage should be
made clear even though both
transactions afford security for
money. Under customary law, a
pledge affords immediate
possession of the property by
the pledgee and he may exercise
their right of possession enjoy
proceeds therefrom but he cannot
exercise any power to sell the
pledged property. Under a
mortgage, even though title
deeds are usually surrendered by
the mortgagor for a loan, there
is no right of possession of the
property by the mortgagee. It
is only upon default that he has
to resort to legal remedies in
the Act or sell the property to
defray the debt in strict
compliance with the Mortgages
Act. We have examined Exhibit
“2” and “H” and the only
conclusion we can reasonably
draw is that the transaction was
not a mortgage but a pledge.
Assuming without admitting that
the transaction was a mortgage
and therefore regulated by the
Mortgages Act NRCD 96 of 1992,
the respondent’s rights under
the transaction should only be
enforced under sections 15, 16,
17 and 18 of the Act and no
more. The respondent could sue
the said Frank Obeng Aphram for
enforcement of the covenants,
appointment of receiver on
default, giving thirty days’
notice in writing to take
possession or to resort to
judicial sale in a court of
law. On the evidence none of
the remedies spelt out in the
statute was resorted to by the
respondent.
On the issue of damages, as it
is now clear that the
transaction in this case was a
pledge and not a mortgage, we do
not think that it would be fair
to award damages against the
respondent as in law he is
entitled to possession and
enjoyment of rents accruing from
such occupation.
In conclusion we allow the
appeal and set aside the
judgment of the Court of Appeal
and restore the judgment of the
High Court, save for the issue
of damages.
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) J. V.
M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) N. S.
GBADEGBE
JUSTICE
OF THE SUPREME COURT
(SGD) J. B.
AKAMBA
JUSTICE OF THE SUPREME COURT
PWAMANG JSC;
I had the privilege of reading
beforehand the lead judgment
delivered by my esteemed
brother, Anin Yeboah JSC and I
agree with his reasoning and
conclusion that the appeal be
allowed. Nevertheless, I wish to
add a few words of my own. As
has been rightly held in the
lead judgment, the transaction
evidenced by Exhibit “2” in this
case was a purported customary
law pledge and not a mortgage as
contended by the appellant.
Appellant ought not to allow the
fact that the parties signed a
memorandum covering the
transaction to becloud his
appreciation of the character of
the transaction which permitted
the defendant, who was the
lender, to keep possession of
the property. The distinction
between mortgage and customary
law pledge is determined by
which of the parties has
possession of the property used
as security so it the substance
and not the form of the
transaction that matters. See
the cases of Kwansa v Brahima
[1966] GLR 784 and Cook v
Kutsoatsi [1960] GLR 96.
In the document evidencing the
pledge transaction in this case,
it is stated that in the event
the customary successor
defaulted in payment of the
financial assistance received
from defendant within the time
agreed upon, he will forfeit the
house used as security and
defendant will take it. The
issue that arises is whether,
under the law applicable to the
transaction, it was right for a
court to give effect to the
signed document and allow the
defendant to take the house as
the Court of Appeal did. In the
18th Century English
case of Vernon v Bethel
(1762) 28 ER 838, the court
was faced with the same issue
under similar circumstances as
in the instant case.
There, Lord Henley L C said as
follows at page 839 of the
Report;
“The principal question in this
cause is, whether, upon the
whole of this transaction, the
plaintiff ought to be decreed a
redemption of this Antigua
estate, or that I should
consider Mr. Bethell as the
absolute purchaser thereof bona
fide, and for his absolute
benefit under deed of the 25th
of August 1738.
This court, a court of
conscience is very jealous of
persons taking securities for a
loan and converting such
securities into purchases.
Therefore I take it to be an
established rule that a
mortgagee can never provide at
the time of making the loan for
an event or condition on which
the equity of redemption shall
be discharged and the conveyance
absolute. And there is great
reason and justice in this rule
for necessitous men are not,
truly speaking, free men, but to
answer a present exigency, will
submit to any terms that the
crafty may impose on them.”
That necessitous men are not
free men is a statement of
general truth valid at the time
Henley L C spoke those words and
today. The words of Henley L C
quoted above provided the policy
justification and are reputed to
be the foundation for the
equitable maxim “once a mortgage
always a mortgage”, meaning any
condition stated in a mortgage
transaction that clogs the
mortgagor’s right to redeem the
mortgage is void and of no
effect.
This position of equity towards
mortgages is comparable to what
prevails at customary law in
respect of pledges, which in
time past were also referred to
as native mortgages. Customary
law has consistently maintained
that a pledge is perpetually
redeemable hence our
jurisprudence has adopted the
postulate “once a pledge always
a pledge”, coined from the
equitable maxim. See the cases
of Agbo Kofi v Addo Kofi
(1933) 1 WACA 284; Kuma & Anor v
Kofi & Ors (1957) 1 WALR 128;
Dadzie & Boateng v Kokofu [1961]
1 GLR 91 SC; Kwaku v Krah & Anor
[1967] GLR 50; Agyemen VI v Nkum
& Anor [1982-83] 1 GLR
520.
In the above cases the courts
held that no matter the length
of time over which a pledge or
defaulted in the payment of
money borrowed in a pledge
transaction, he or his
successors can tender the sum
borrowed and take back the
pledged property.
The provisions in Exhibit “2”
that convert the customary
pledge to a sale upon default of
payment of the loan is obviously
inconsistent with the right of
the pledgor to redeem pledged
property as generally recognised
at customary law. In the case of
Dapaah v Poku (1950) Ollennu
Customary Law Cases p. 173,
the West Africa Court of Appeal
held as follows;
“It has been argued by Mr
Asafu-Adjaye for the respondent
that the provision in Exhibit
“A” that the mortgagor was to
regain possession of the farm at
the expiration of thirteen years
is inconsistent with it being a
native mortgage. One might,
however, put it in another way
and say that if it is a native
mortgage, any condition
inconsistent with the native
customary law would be invalid;
in other words that a mortgagee
could not defeat the fundamental
principles of native law, by
making such a condition. I am
disposed to thinking that this
is the correct way of looking at
it.”
In his book “Ewe Law of
Property”, 1973, Professor
A. K. P. Kludze, in explaining
the scope of the maxim “once a
pledge always a pledge”, also
said at page 240 that
“…..nothing in the transaction
or thereafter may defeat or clog
the right of the pledgor to
redeem his property at any time,
however long after the pledge.”
So the position of customary law
on the question facing the court
is clear and it is that the
provisions in Exhibit “2” which
convert the pledge to a purchase
are void. I find the customary
law rule that forbids clogging
the right of a pledgee to redeem
pledged property to be
equitable, reasonable and fair
for those who pledge their
property as security for loans
or financial assistance usually
do so out of necessity. That
makes them vulnerable so they
deserve to be protected against
the crafty who will want to take
unconscionable advantage of
them.
Any condition stated in a
customary law pledge that is
inconsistent with or repugnant
to the character of perpetual
redeemability of a pledge is
void and cannot be enforced. The
defendant in this case sought to
take advantage of the customary
successor so even if the
transaction was binding on
plaintiff family, it will be
contrary to customary law for a
court to allow defendant to take
and keep the pledged property
forever. The right at customary
law to redeem the pledge was not
taken away by the provision for
forfeiture in the memorandum
covering the pledge in this
case.
(SGD)
G. PWAMANG
JUSTICE OF THE SUPREME COURT
COUNSEL
MUJEEB RAHMAN AHMED FOR THE
DEFENDANT/APPELLANT/RESPONDENT
WITH HIM ANNIS MOHAYIDEEN
KWASI AFRIFA FOR
PLAINTIFF/APPELLANT
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