Mathew v. Paul (PC) Civ. App. 71-M-71; 2/8/71; El-Kindy Ag. J.

Mathew v. Paul (PC) Civ. App. 71-M-71; 2/8/71; El-Kindy Ag. J.

The appellant Simeon Mathew borrowed Shs. 400/- from the respondent and secured the loan with a cow. The agreement provided that if the appellant did not repay the loan by June 5, 1969, the respondent would take the security which was then in the hands of one Mataboro. Before redemption was affected, the cow gave birth to a calf, the ownership of which is in dispute. The appellant’s argued that the agreement was not one of pledging a cow but of mortgaging it. He further suggested that had it been a pledge the respondent would have taken possession f the cow. Neither the trial nor appellate court was satisfied with the distinction drawn. They both held that the transaction was a pledge and the offspring belonged to the respondent according to Haya customary law. The respondent appealed.

            Held: (1) “It does not appear that Haya customary law knew of legal concepts of mortgages as it can be seen from reading of CORY & HARTNOLL, Haya Customary Law. The concept which is known is that of pledging property and for the purposes of this appeal, paragraphs 1196 to 1208 of CORY & HORTNOLL, are, in general, applicable and, in particular, paragraph 1201 which states that all calves of the pledged cow are the property of the creditor. The cow which was secured in this suit produced a calf and as this was a customary agreement it was not unreasonable to hold that the appellant pledged his cow. I do not think the fact that the cow was left in the charge of the herdsman Mataboro did, in any way, affect the nature of the agreement.       

I am satisfied that the appellate court’s judgment was sound on the facts and the law. (2) “This appeal has been lodged without sufficient cause for complaint and it is accordingly dismissed.”