MATZEN & TIMM (GHANA) LTD vs. KISSI [1961]DLHC5417

Date	1961-11-07
Suit No.
Citation No.	[1961]DLHC5417

JIAGGE J.

E. N. P. SOWAH FOR THE PLAINTIFFS.

E. N. MOORE FOR N. O. ANNAN FOR THE DEFENDANT

[1961]DLHC5417
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">MATZEN &amp; TIMM (GHANA) LTD <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">KISSI<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">[1961] GLR 64&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 7TH NOVEMBER, 1961.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

E.
N. P. SOWAH FOR THE PLAINTIFFS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

JIAGGE, J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
JIAGGE J.<o:p></o:p>The defendant owns a house which he mortgaged to the Ghana
Commercial Bank. The defendant let the same property to the plaintiff company
at the rent of £G300 a year. The bank took steps to foreclose the mortgage,
sell the house in question and recover the mortgage debt of £G1,500 that was
still due and owing.<o:p></o:p><o:p>&nbsp;</o:p>According to P.W.1 his company with the consent of the defendant
offered to pay the mortgage debt. This offer was accepted by the bank and the
defendant’s property was transferred to the plaintiffs on the 26th July, 1960.
The bank also handed over to the plaintiffs the mortgage deed between the
defendant and the bank dated the 8th July, 1957. The defendant’s title deeds
were also handed to the plaintiffs. The plaintiffs then notified the defendant
about the transfer of the mortgage to them. According to the plaintiffs the
defendant saw P.W.1 in his office several times about the mortgage debt but
stated each time that he had no money to pay.<o:p></o:p><o:p>&nbsp;</o:p>Upon the plaintiffs’ instructions their solicitor sent the letter
exhibit D1 to the defendant on the 5th May, 1961, warning him that unless the
debt was paid proceedings would be taken to foreclose the mortgage. The
defendant sent his reply exhibit D2 in which he appealed to the plaintiffs “to
suspend any legal measures” and assured them that he would redeem the mortgage
on the 30th June, 1961.<o:p></o:p><o:p>&nbsp;</o:p>The defendant’s solicitor then sent exhibit 1 dated the 20th May,
1961 to the plaintiffs’ solicitor claiming that the bank “negligently
reconveyed the said property” and demanded the return of the “original title
deeds together with the reconveyance executed by the Bank.” The defendant’s
solicitor in exhibit 1 offered to “set off the said amount against future rents
and that he [defendant] is prepared to execute a lease for your clients for
that purpose.”<o:p></o:p><o:p>&nbsp;</o:p>The defendant denied that the offer made to the bank by the
plaintiffs for the payment of the mortgage debt was with his prior consent. He,
however, stated that after having been informed by the bank that the property
had been transferred to the plaintiffs he asked the plaintiffs whether they
were prepared to continue occupation of the house to allow the rent to offset
the mortgage debt, and that the plaintiffs had agreed.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiffs admitted that they had agreed to sign a further
lease at the expiration of the old lease with the defendant and that they were
willing to keep the rent as a set-off for the debt and that the rent due since
July had been in fact used for that purpose. P.W.1 went on to state that he had
drawn up a lease but that the defendant had refused to sign it and that the
defendant had made another suggestion that the plaintiff-company should pay him
in advance twenty years rent; that the proposition was quite unacceptable to
the company and the company decided to give up the premises and foreclose the
mortgage: hence this action.<o:p></o:p>