Seidu Vrs Blay & Another [2023] GHADC 590 (14 June 2023)

IN THE DISTRICT COURT HELD AT HALF ASSINI ON WEDNESDAY THE 14TH DAY OF JUNE, 2023. BEFORE HIS WORSHIP WILLIAM OFORI-ABOAGYE. –MAGISTRATE– HAWA SEIDU OF NUBA SUING FOR HERSELF - AND ON BEHALF OF HER OTHER SIBLINGS - - - PLAINTIFF SUIT NO. A1/25/21 VRS 1. MASTER BLAY 2. FRANCIS AGYIMANVULLEY BOTH OF NUBA By Court JUDGEMENT - - - DEFENDANTS The Plaintiff herein issued a writ of summons on 23/06/21 against the 1st and 2nd Defendants herein jointly and severally or the following reliefs: 1. Declaration that all that piece or parcel of coconut Plantation which is situated and lying at a place called Bangele- Nuba bounded by the properties of Egya Biney, James Ehomah, and Abizi Nyameke forms part of the Estate of Seidu Kabore(deceased). 2. Declaration that the children of the late Seidu Kabore are owners of the said Coconut Plantation stated above by way of inheritance. 3. Recovery of possession of the said Coconut Plantation. 4. An order of the Honourable Court to let the Defendants render an account to the Plaintiff for the past 20 years that the said coconut Plantation have been in care. 5. Perpetual Injunction Order from the Court Restraining the Defendants, their agents, workers, etc. from leaving anything to do with the said Coconut Plantation. 6. Any further order(s) from the Honourable Court. THE CASE OF THE PLAINTIFF: Plaintiff’s late father Seidu Kabore (herein after called the Pledgor) cultivated and harvested the disputed farm for a number of years. The Plantation was pledged to a relative (Bozoma Agyimanvulley herein after called ‘the Pledgee’) of the Defendants for an amount of ¢ 60,000,000.00 (GH¢6,000.00) due to ill-health of the late Seidu Kabore to collect the nuts for the repayment of the said amount. That the Pledgee had held unto the Plantation through the Defendants for the past 20 years and is now claiming ownership of the said Plantation. It is the Plaintiff’s case that her father during and at a point in time thought the Defendants had collected enough of the coconuts to defray the debt he owed and therefore made a demand for the return of his farm to him which did not materialize and he passed away. Her mother continued the process of redemption of the farm which was unsuccessful and she also passed away. According to the Plaintiff she therefore took up the mantle of redemption on behalf of her siblings. She began by engaging the Defendants in that respect. The Defendants, after she had met with them and having agreed with her, later changed their mind claiming the farm was sold absolutely to Bozoma Agyimanvulley (the Pledgee) and therefore she cannot redeem same. THE CASE OF THE DEFENDANTS: The case of the Defendants is simple. According to the Defendants the Plaintiff’s late father sold the farm outright to Bozoma Agyimanvulley. They claimed that they initially entered into a negotiation with the Plaintiff for the redemption of the farm based on the wrong assumption that the purported documents covering the said sale was razed down with fire which destroyed items belonging to the Vendee. They therefore rejected the claim of the Plaintiff that the disputed farm was a pledged property. EVIDENCE OF THE PLAINTIFF: The Plaintiff gave evidence by herself and called only one witness. In her evidence to the Court the Plaintiff said the disputed farm was pledged to the Bozoma Agyimanvulley (deceased) by her deceased father for an amount of ¢60,000,000.00 (GHC 6,000.00) but was unable to give the period for which the said pledge covered. It was her evidence that her father in his life time tried to redeem the farm but was unsuccessful till he passed away. She informed the court that her mother also tried to redeem the pledged property and was told a similar story that the farm was sold to the pledgee. The mother insisted the that farm was not sold out to her as been alleged. She therefore summoned Bozuma Agyimanvulley before the chief of Nuba. However, she also passed on whilst the matter was pending. The Plaintiff after her mother’s death approached the 1st Defendant who was the head of family of Pledgee who was also deceased by then. The 1st Defendant told her to give him some time to consult with his family. The 1st Defendant’s initial checks, according to Plaintiff, indicated that the farm was sold outright which she disagreed. She therefore informed Ayeba Kodwo and Ayekpa Assuah Chie @ Razak. The pair approached the 1st and 2nd Defendants together with two of 1st Defendant’s nieces. At the said meeting, they were informed that plaintiff’s father took an amount of GH¢4,500.00 from the Pledgee and that if they were ready to redeem the farm then they should pay GH¢6,000.00. They agreed and gave a bottle of Madingo to seal the deal and promised to pay the amount within a week to the Defendants. On the set date, the plaintiff in the company of Ayeba and Ayekpa went to the Defendants with the money only for them to be told that the Pledgee’s family were demanding double the initial amount. The plaintiff insisted on the agreed amount of GH¢6,000.00 which was refused by the Defendants. The 2nd Defendant later called to inform the Plaintiff that the Pledgee’s children claim the farm was sold to their mother and therefore could not release same to her. The plaintiff’s witness (PW) corroborated that they held a meeting with the Defendants at which the Defendants agreed on GH¢6,000.00 for the redemption of the farm. However, when the time came for the money to be paid to the Defendants, they demanded GH¢12,000.00 and therefore he advised the plaintiff to sue for redress at the Court. THE EVIDENCE OF THE DEFENDANTS: The 1st and 2nd Defendants gave evidence on their own without calling any other witnesses. The 1st Defendant informed the court that Bozoma Agyimanvulley (the Pledgee) was her niece. That the Pledgee was into coconut oil business. She sometimes lent money to the farmers and defray same with coconuts. He went on to say that the Plaintiff’s father was one of those borrowers (Pledgors) who came for money and pledge their coconuts farms to defray the amount borrowed. The Plaintiff’s father in 1991 was involved in some serious criminal matter and therefore decided to sell the disputed farm. The Plaintiff’s father therefore consulted the pledgee who showed interest and they bargained for the farm at ¢350,000.00 (GH¢35.00) which sale was documented as Exhibit “MA” or ”1”. Thus, the farm came into the possession of his late niece by way of an outright sale of the disputed farm from Seidu Kabore, Plaintiff’s late father. According to D1 the niece died three (3) years ago and at her funeral an announcement was made to the effect that those who owed her and those she owed should own up for accounts to be settled but the Plaintiff did not show up. That sometime in January, 2021 the Plaintiff approached him at his house at Aiyinase and informed him that her late father pledged his coconut farm to her late niece and that time was long overdue for redemption and that she had made her intentions known to D2. D1 stated that he told Plaintiff to go and come back later since they were mourning. That afterwards, the Plaintiff came back with one Gyiwata and he (D1) informed them that the farm in dispute was sold to the pledgee by her late father. But the Plaintiff pleaded with him for the return of the farm and therefore he charged her GH¢15,000.00 for the redemption. The Plaintiff according to D1 prayed to be given some time to make the necessary arrangement for the payment. She came back after a while with GH¢5,000.00 that was all she could raise which amount was rejected. He then informed Plaintiff that the children of the pledgee now claimed the farm was sold to the Pledgee and that they were not prepared to release same. Plaintiff then took the instant action against them. On the part of D2, he stated that the Plaintiff’s late father in July, 1991, approached himself, his wife (Pledgee) and his father in-law that he was involved in a criminal case and therefore he was selling he disputed farm. He said they asked Seidu Kabore (Deceased) if they should buy the farm what would be the fate of his children, and he replied that it was his life that was on the line and not his children. His wife then agreed to buy same and they settled on an amount of ¢350,000.00. That on 20/07/91 he together with his wife (Vendee) and Seidu Kabore (Deceased), Haruna Mossi and Abdul Issah came to this Honorable Court and prepared a document Exhibit “MA” or ”1” to cover the transaction. The preparation was not completed the very day and was delivered to them after 2 days by a bailiff. According to D2 they tried to reach the vendor to have the document executed but all to no avail and they were informed the vendor had relocated. That with the exception of himself and Abdul Issah all the parties involved in the preparation of the document are dead. However, they assumed the document to be valid since it was prepared and endorsed by the Court and therefore did not pursue the ‘Vendor’ to execute same. He stated that the disputed farm was sold to her wife absolutely and therefore it cannot be released to the Plaintiff. ISSUES: a. Whether or not the farm was sold or pledged to Bozoma Agyimanvulley. b. Whether or not the property (disputed farm) is redeemable. ANALYSIS OF THE EVIDENCE AND APPLICABLE LAW. From the evidence of the Plaintiff it can be established that the disputed farm on the average had been in the possession of the Defendants for over 31 years. That after the death of her father her mother and herself have tried to redeem the said farm. That the Plaintiff met with the Defendants in connection with the redemption of the farm. It is also a fact that during the process a price was named for which the Plaintiff was required to pay for the return of the farm as stated by the Plaitiff which varies from what was stated by D1. Again, it is established that what the Plaitiff said she would be able to pay and what D1 stated was what she said she would be able to pay (GH¢5,000.00) was at variance. It is also a fact that the Defendants had denied the Plaintiff the opportunity to redeem the property first by fixing the amount over and above the expectations of the Plaintiff and secondly by also later claiming the farm was sold by her late father even though she had insisted that is not the true state of affairs. Finally, it is established that Exhibit “MA” or “1” was not executed by any of parties, neither was it stamped nor registered as required by law. It is a fact that Bozoma Agyimanvulley engaged in lending to farmers and secured such loans with coconut farms. It is a fact that the 1st Defendant demanded Ghc15,000.00 from the Plaintiff (a sum which is a little above double the amount the Plaintiff said the 1st Defendant initially demanded for the redemption of the disputed farm. The instant case comes under the Mortgages Act 1972 NRCD 96 which defines a mortgage as “a contract charging immovable property as security for the due repayment of a debt and any interest thereon or for the performance of some other obligation for which it is given in accordance with the terms of the contract” Section 1(1) of the Act. It is important to note that a customary law pledge transaction in which land is used as security for a loan granted by a lender to a borrower in Ghana is governed by the Act. This was made possible by the Mortgages (Amendment) Act 1979 AFRCD 37 which brought all such transactions under the Act. These transactions, like mortgages do not operate to change ownership, right of possession or other interest whether present or future, in the property charged, except as provided by law. The law is that the pledgor is entitled to redeem his property either on the date of repayment or at a reasonable time after such date upon tender of payment and /or any interest or performance of the secured obligations. Thus, the pledgee cannot and must not put any impediments in the way of the Pledgor when she is ready to tender payment to redeem the secured farm. This stems from the judgement in the case of Browne v Ryan [1901]IR 653 at 676 which held that: “When a transaction appears, or has been declared to be a mortgage… the mortgagor is entitled to get back his property as free as he gave it, on the payment of the principal, interest, and costs, and provisions inconsistent with that right cannot be enforced. The equitable rules once a mortgage, always a mortgage, and that the mortgagee cannot impose any clog or fetter on the equity of redemption; are merely concise statements of the same rule”. Thus, the mortgagor’s equity of redemption is a reflection of the fact that a mortgage is essentially a security device and any attempt by the mortgagee to place a fetter or preclude redemption is fiercely resisted or repulsed by equity. From the evidence, Bozoma Agyimanvulley (the Pledgee) was in the business of granting loans to coconut farmers including the father of the Plaintiff. The 1st Defendant also indicated to the court in his evidence that he had a meeting with the Plaintiff and he demanded an amount of GH¢15,000.00 for the release of the farm. He further stated that they (Defendants) had no documents to the transaction between Plaintiff’s father and Madam Bozoma but later one was provided by the former husband of the said mortgagee to the effect that the farm in dispute was sold to them, claiming further that the document was not signed by the Plaintiff’s father after they had made some efforts for him to sign. After his (Mortgagor’s) death, none of them saw it necessary to raise that as an issue to be resolved by the successor in title to the Plaintiff’s father until Plaintiff came forward to redeem the said property. It trite that any allegation against a dead person should be scrutinized with a lot of care as held by the Supreme Court in the case of Rukayatu Usumanu v Zongo Naa Kun-Gari & 16 Others [2021] DLSC 1017, that “In evaluating evidence, especially the documents alleged to have been executed by the dead persons, the law enjoins us to exercise great care and examine these documents with suspicion. The age-old principle that guards the courts in evaluating assertions made against dead persons as stated in Garnett, In Re; Candy V Macauly (1885) 31 CL. D 1 @ 9 and quoted with approval in the case of Mondial Veneer (Gh) Ltd V Amoah Gyebu XV [2011]1SCGLR 466 is that real danger lies in accepting without questioning or close scrutiny, claims made against a dead person. The caution is that such claims must be weighed carefully is based on plain good sense and has consistently been applied in a number of cases”. This means that any allegation of the sort must be carefully scrunised by the court. The 1st Defendant informed the court that his niece in her life time gave loans to the Plaintiff’s father for which he pledged the farm in dispute and which was later redeemed by the pledgor. It therefore stands to hold that the current transaction involving Exhibit ‘M’ or ‘1’ could pass for a similar transaction based on the practices which was prevalent at the time and particularly between the Plaintiff’s father and the 1st Defendant’s niece (pledgee). Exhibit ‘M’ or ‘1’ cannot pass as any proper legal document since it was neither executed by the parties to the transaction nor was it registered nor stamped as required by law. Lizori Ltd v Boye and school of Domestic Science and catering [2013-14] 72 SCGLR 889, it was held that “The provision Section 32 of Act 689 is so clear and unambiguous and require no interpretation. Either the document has been stamped and appropriate duty paid in accordance with the law in force at the time it was executed or it should not be admitted in evidence. There is no discretion to admit it in the 1st place and ask party to pay the duty and penalty after judgement”. This means a land document executed but not stamped cannot be admitted in evidence. Thus Exhibit ‘M’ or ‘1’ which is purported to evidence the ‘land sale’ between the Pledgor and the Pledgee is inadmissible and therefore irrelevant to the cause of the Defendants. In the circumstance, since the pledgor in his lifetime pledged the farm in dispute to the pledgee (1st Defendant’s niece) and redeem same, and the Plaintiff having made the court aware that her father and mother all tried to redeem same without success, due to clogs put in their way by the Defendants, thirty years or more is enough time for the debts for which the farm was pledged to be entirely defrayed. The Plaintiff in her reliefs prayed for account for the 20 years that the farm had been in the Defendants possession. This request would have been easier if the Defendant had been able to assist the court to ascertain when the pledge took effect and when the performance was to be due. However, even though the Defendants were under the erroneous impression that the farm was sold outright and therefore could not be redeemed, she (Plaintiff) encouraged them to keep same since she went to bargain with them for the redemption of the farm. This delayed the whole process and therefore she had contributed to the farm being in the possession of the Defendants. In the circumstance the court would hold that she cannot recover accounts for the 20 years for the above reasons. DECISION Judgement is given in favour of the Plaintiff since the transaction is a customary law pledge which falls under the mortgages act and therefore redeemable by the Plaintiff herein upon performance of the obligation thereto. It is fair to state that the debt has completely been paid and the Plaintiff has nothing to pay to the Defendants. The disputed farm is therefore duly redeemed and must be transferred to the Plaintiff by a discharge Certificate from the Defendants to the Plaintiff. The court will consider all the circumstances of the case including the nature and terms of the collateral advantage, the nature of the loan, whether commercial or private, whether there was equality of bargaining power or whether the borrower had independent legal advice as held in the case of Krelinger V New Patagonia Meat and Cold Storage Co. Ltd (1914) Ac 25 @ p.61. ORDERS Flowing from the discussions and the decision of the court, the following orders are made: 1) The Defendants are required to transfer the farm in dispute to the Plaintiff immediately. 2) Cost of GH¢2,500.00 is awarded in favour of the Plaintiff against the 1st and 2nd Defendants payable within 3 months. 3) The Defendants, their workmen, assigns etc are to refrain from having anything to do with the disputed land. 4) The Defendants are hereby ordered to prepare a Discharge Certificate in favour of the Plaintiff. (SGD) H/W. WILLIAM OFORI-ABOAGYE (MAGISTRATE) 14/06/2023