KOME vs. YEMOH AND GHANA COMMERCIAL BANK [1961]DLSC5405

Date	1961-04-10
Suit No.
Citation No.	[1961]DLSC5405

VAN LARE JSC

SARKODEE-ADOO JSC

AKIWUMI J.S.C.

B.J. DA ROCHA FOR THE APPELLANT.

KOI LARBI FOR THE RESPONDENTS.

[1961]DLSC5405
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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">KOME <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">YEMOH AND GHANA COMMERCIAL BANK<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">&nbsp;[SUPREME 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 192&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"> 10TH APRIL, 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">

B.J.
DA ROCHA FOR THE APPELLANT.<o:p></o:p>

KOI
LARBI FOR THE RESPONDENTS.<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">

VAN LARE JSC, SARKODEE-ADOO
JSC, AKIWUMI J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
AKIWUMI J.S.C.<o:p></o:p>Akiwumi J.S.C. delivered the judgment of the court. In this case
the plaintiff claims declaration of title and recovery of possession of the
premises contained in a deed of conveyance dated the 25th May, 1954, and also
for the cancellation of the said instrument made between the plaintiff and the
first defendant whereby the plaintiff conveyed the subject-matter in dispute to
the first defendant by way of an outright sale for the sum of £2,500. This
instrument was exhibited and marked C in the proceedings.<o:p></o:p><o:p>&nbsp;</o:p>The facts are that the plaintiff owed several creditors who were
worrying him and he approached the first defendant for help. He offered to sell
the property to the first defendant for £2,500. The first defendant was to pay
off the plaintiff’s creditors and to pay the balance to him (plaintiff). The
first defendant accepted the offer and in fact paid the sum of £244 6s. on
account of the plaintiff’s creditors and according to him, paid the balance to
the plaintiff by instalments and was given receipts for the payments by the
plaintiff. After the sum of £2,500 had been paid by the plaintiff the first
defendant went to Mr. F. K. Apaloo, a solicitor, (as he then was) for exhibit C
to be prepared. The plaintiff gave Mr. Apaloo a copy of his deed of gift, exhibit
A, which was his root of title to the property.<o:p></o:p><o:p>&nbsp;</o:p>When Mr. Apaloo asked for the original, the plaintiff told him
that it was missing. The plaintiff supplied Mr. Apaloo with the necessary
particulars and the agreed purchase price of the property to enable Mr. Apaloo
to prepare exhibit C, which was eventually executed by the plaintiff and first
defendant. On Mr. Apaloo enquiring about payment of the agreed purchase price
of £2,500 he was told by the first defendant not to worry about it. The
plaintiff was present and heard what the first defendant said but remained
silent, in the circumstances admitting that settlement of the purchase price
had been concluded. The first defendant in his evidence said that in executing
exhibit C he handed to the plaintiff all the receipts covering the sum of
£2,500 which he had paid to the plaintiff. The plaintiff never challenged this
evidence of the first defendant.<o:p></o:p><o:p>&nbsp;</o:p>Later on, the first defendant approached the Ghana Commercial
Bank, the second defendants, in this suit, for a loan and offered exhibit C to
secure the loan. The bank sent exhibits A and C to Mr. Lokko, their solicitor,
to investigate and prepare the necessary mortgage instrument. The plaintiff and
the first defendant went to Mr. Lokko about the preparation of the mortgage. On
Mr. Lokko enquiring about the original of the plaintiff’s root of title, the
plaintiff falsely represented that it was with one of his brothers who was then
in the Northern Region and that it was lost. Mr. Lokko, believing the plaintiff
whom he had known before, advised the loan by the second defendants to go
through and a mortgage deed, exhibit 1, was prepared and executed by the first
defendant in favour of the second defendants.<o:p></o:p><o:p>&nbsp;</o:p>Everything went smoothly until the first defendant failed to repay
the second defendants the debt due on exhibit 1. The second defendants, in
1957, then took steps to exercise their power of sale under the mortgage,
whereupon the plaintiff instituted the present action against the first and
second defendants, claiming the reliefs stated above. The plaintiff in his
evidence maintained that although exhibit C appears to be an outright sale it
was really intended to secure the payment by the first defendant to his
(plaintiff’s) creditors, although he did not give first defendant a list of
them, and further alleged that the first </main>