Adjei V. Dabanka & Anor (1932)

LawGlobal Hub Judgment Report – West African Court of Appeal

Land—Mortgage—Construction—Consequences of renewal of lease.

Facts

In consideration of a loan of £250 the plaintiff deposited with a predecessor of the defendant Akowua, by name Derkyi, his document of title to certain leasehold premises, and at the same time by an informal document purported to grant to the said defendant his interest in the said premises. The principal conditions in this document were that the plaintiff was to remain in possession and that the lease was to be the absolute property of Derkyi if the principal and interest were not paid within one year. The principal and interest were not paid within the time specified, and Derkyi sold the lease to the defendant Dabanka.

The plaintiff sued in the Circuit Court of Ashanti for the return of his premises, but his action failed.

Held

On appeal it was held that the original transaction between plaintiff and Derkyi was not a native mortgage because the plaintiff was to remain in possession. The Court held it to be an equitable mortgage which plaintiff was still entitled to redeem, and ordered the sale to set aside and the premises to be assigned to the plaintiff.

As regards certain renewals of the lease which had been effected by Akowua, it was held that they were engrafted on the old lease and formed part of the security.