AYIWAH AND ANOTHER vs. BADU AND OTHERS [1961]DLSC1992

Date	1961-02-11
Suit No.
Citation No.	[1961]DLSC1992

ADUMUA-BOSSMAN JSC

MILLS-ODOI JSC

OLLENNU JSC

VICTOR OWUSU FOR THE APPELLANTS

HAYFRON-BENJAMIN

SNR.

FOR THE RESPONDENTS.

[1961]DLSC1992
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AYIWAH AND ANOTHER

<a name="_gjdgxs"></a>&nbsp;BADU AND OTHERS

[SUPREME COURT]

[1963] GLR 86

DATE: 11TH FEBRUARY, 1963.

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COUNSEL:&nbsp;&nbsp;

VICTOR
OWUSU FOR THE APPELLANTS.

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ADUMUA-BOSSMAN, MILLS-ODOI AND
OLLENNU JJ.S.C.

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&nbsp;

This appeal is against a judgment dated the 16th May, 1961, of the
High Court, Kumasi, which upheld the plaintiffs-respondents’ claim for (a)
cancellation of a mortgage deed dated the 28th March, 1958, made between the
plaintiffs-respondents as mortgagors and the first defendant-appellant as
mortgagee, on the ground of “illegality resulting from harshness relating to
the rate of interest charged”; and (b) injunction to restrain the sale of the
property comprised in the said mortgage deed. The judgment, however, dismissed
the first defendant-appellant’s counter-claim for £G1,275 the amount due for
principal and interest under the said mortgage deed. The parties will be
referred to shortly as plaintiffs and defendants respectively throughout the
rest of this judgment.

From the pleadings the main issue which became outstanding for
determination was whether the actual sum paid by the first defendant to the
plaintiffs as principal money advanced was £G720, repayable with £G555 as
interest thereon, as alleged by the plaintiffs, or whether the sum paid as
principal money advanced was £G1,200 repayable with £G75 as interest thereon,
as alleged by the first defendant. In the words of the learned judge, “the only
serious issue between the parties is the amount of money lent and the interest
charged.”

When the action eventually came up for trial, the second plaintiff
alone appeared and gave evidence in support of the claims by herself and her
mother, the first plaintiff. The defendants, however, had the assistance of
counsel, Mr. Victor Owusu, and on their side also the first defendant alone
gave evidence. It is one of the main grievances of the defendants that as the
onus was on the plaintiffs and their case depended solely on the second
plaintiff’s evidence, the learned trial judge should have held that it was not
sufficiently proved, but he rather held it adequately proved and gave judgment
granting the reliefs claimed. Before dealing with defendants’ counsel’s
arguments on this ground, I would deal first with a new ground of appeal which
was introduced just before the commencement of the hearing of the appeal, that:

“The amendment allowing [introducing] re-opening of the loan
transaction was bad in law, since the Loans Recovery Ordinance, Cap. 175 has no
application to the case before the court; wherefore, all the evidence led in
support of that amendment was wholly inadmissible.”

The introduction of this new ground was due to the fact that on a
hearing date prior to that on which hearing actually started, the plaintiffs,
then represented by counsel, applied “for leave to amend the statement of claim
and writ by deleting the words `cancellation of mortgage deed,’ and
substituting `re-opening of the loan transaction.’“ The application was
opposed, but the learned Commissioner of Assize and Civil Pleas who then
presided over the court granted “leave to amend.” The defendants’ counsel
arguing this ground read section 3 (1) of the Loans Recovery Ordinance1 and
submitted that the court has jurisdiction to re-open a loan transaction only
when the moneylender has instituted an action to enforce his rights under the
transaction, but that it was not open to a borrower to bring an action to claim
re-opening of a loan transaction, as the plaintiffs in the instant case by
their amendment purported to do.

Plaintiffs’ counsel’s answer to this was that although leave to
amend was granted, by the terms of Order 28, r. 7, the plaintiffs had to write,
or cause to be written out, the proposed amendment into the statement of claim
and writ on the court’s file and thereby make or effect the amendment within
the period prescribed by the rule; but as they failed to do this the leave
granted ipso facto became void.

“(7) If a party who has obtained an order for leave to amend does
not amend accordingly within the time limited for that purpose by the order, or
if no time is thereby limited, then within fourteen days from the date of the
order, such order to amend shall, on the expiration of such limited time as
aforesaid, or of such fourteen days, as the case may be, become ipso facto
void, unless the time is extended by the Court or a Judge.”
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