Ansah Vrs Osei and Others [2016] GHASC 46 (28 July 2016)

Ansah Vrs Osei and Others [2016] GHASC 46 (28 July 2016)

The transaction evidenced by Exhibit '2' was not a valid alienation of family property as the necessary consent of principal members was not established. The transaction was a customary pledge, not a mortgage, and under customary law, the right to redeem the pledged property cannot be extinguished by any condition in the agreement. The Court of Appeal erred in reversing the trial court's findings, and the appeal is allowed, restoring the High Court judgment except as to damages.

Citation
[2016] GHASC 46
Parties
Plaintiff/appellant/respondent: J. K. Owusu Ansah (for and on behalf of himself & other members of his family H/№ OTB 218 “B”, Kumasi); Defendant/appellant/respondent: Joseph Tuffour Osei; Defendant in Counterclaim: Frank Obeng Aphram
Court
Supreme Court
Jurisdiction
Ghana
Judgment Date
28 July 2016
Procedural Posture
Civil Appeal / Supreme Court Final Appeal
Outcome
Appeal allowed; judgment of Court of Appeal set aside; High Court judgment restored except as to damages.
Legal Topics
Family Property Alienation, Customary Pledge Vs Mortgage, Redemption Rights, Authority of Customary Successor
Source Language
English
Property Law Customary Law Family Property Alienation Customary Pledge Vs Mortgage Redemption Rights Authority of Customary Successor

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Parties

J. K. Owusu Ansah (for and on behalf of himself & other members of his family H/№ OTB 218 “B”, Kumasi)

Plaintiff/appellant/respondent

Joseph Tuffour Osei

Defendant/appellant/respondent

Frank Obeng Aphram

Defendant in Counterclaim

Procedural Posture

Civil Appeal / Supreme Court Final Appeal

Legal Issues

  1. 1 Whether the transaction evidenced by Exhibit '2' was a valid alienation of family property under customary law
  2. 2 Whether the transaction was a mortgage or a customary pledge
  3. 3 Whether the right to redeem the pledged property was extinguished by the terms of the agreement

Ratio Decidendi

The transaction evidenced by Exhibit '2' was not a valid alienation of family property as the necessary consent of principal members was not established. The transaction was a customary pledge, not a mortgage, and under customary law, the right to redeem the pledged property cannot be extinguished by any condition in the agreement. The Court of Appeal erred in reversing the trial court's findings, and the appeal is allowed, restoring the High Court judgment except as to damages.

Court Disposition

Appeal allowed; judgment of Court of Appeal set aside; High Court judgment restored except as to damages.

Orders

  • Judgment of the Court of Appeal is set aside.
  • Judgment of the High Court is restored, save for the issue of damages.