APPIAH v. BASIL [1961]DLSC598

Date	1961-12-08
Suit No.
Citation No.	[1961]DLSC598

LORD KEITH OF AVONHOLM JSC

LORD MORRIS OF BORTH-Y-GEST JSC

LORD HODSON JSC

C. A. SETTLE

Q.C. AND W. GOODHART FOR THE APPELLANTS

T. O. KELLOCK FOR THE RESPONDENT.

[1961]DLSC598
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&nbsp;[JUDICIAL COMMITTEE OF THE PRIVY COUNCIL]

[1961] GLR 23

DATE: 8TH DECEMBER, 1960.

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COUNSEL:&nbsp;&nbsp;

C.
A. SETTLE, Q.C. AND W. GOODHART FOR THE APPELLANTS.

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LORD KEITH OF AVONHOLM, LORD
MORRIS OF BORTH-Y-GEST AND LORD HODSON

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Lord Morris delivered the judgment of their Lordships: [He
referred to the facts and continued:] Anthony died in December, 1952. Down to
that date no claim appears to have been made but some years later, i.e. on the
2nd February, 1956, the personal representatives of Anthony (who are the
present appellants) commenced an action against the respondent. They claimed
that the provision in the indenture of the 11th November, 1927, under which
Basil was to retain half of the mortgaged property amounted to a clog on
Anthony’s right of redemption. They contended that the surrender by Anthony in
1931 of the lease of the original plot 435 and its division into two moieties
was a step in the fulfilment of the provisions of the 1927 indenture. The
statement of claim contained the following paragraphs:

“5. In pursuance of the said mortgage agreement, the Mortgagor
surrendered unto the Government of Ashanti Plot No. 435 Old Town Section `B’
and the Government of Ashanti divided the plot 435 Old Town Section `B’ into
two separate Plots thenceforth known as Plots Nos. 435 and 435A and the
Mortgagee took possession of both and erected buildings thereon. “6. In 1949
the present defendant as successor and beneficiary to Noah Basil Basil assigned
Plot No. 435 to Yaw Anthony, the sum of £3,500 having been paid to the
Mortgagee but retained Plot No.435A which is the other half of the original
Plot No. 435 which was divided into two in pursuance of the Mortgage Agreement
of 1927. “7. The plaintiffs say that the provision in the mortgage agreement of
1927 `that if the mortgagor shall pay the mortgagee the sum of £3,500, the
Mortgagee will at any time thereafter upon the request and at the cost of the
Mortgagor reconvey half of the said messuages hereditaments and premises with
the building thereon as set forth in the agreement aforesaid unto the mortgagor
his heirs executors administrators or assigns or as he or they shall direct’. .
. if and in so far as it prevents the plaintiffs from redeeming the whole
mortgage property upon proper payment of the principal is illegal and void as a
clog on the plaintiffs’ right to redeem and is not capable of being enforced
against plaintiffs.”

By the amended statement of defence it was stated that Anthony did
not contribute to the sum of £7,000 but that “by agreement recited in” the
indenture of the 11th November, 1927, Anthony agreed that Basil should build
for himself one half of the original plot 435. Included in the contentions of
the defendant (the present respondent) were those contained in the following
paragraphs:

“8. The defendant says that it was agreed between late Anthony and
Basil that the amount of £3,500 so lent in erecting Anthony’s portion of the
building on his Plot 435, was to be repaid by late Basil collecting the rents
from the property less payments made for ground rents, Town and Water rates,
repairs and management expenses thereof, until the amount was finally settled
and that law (sic) Yaw Anthony had the right at any time to pay off the balance
of the principal remaining due and to redeem the Mortgage. “9. The defendant
admits that Plot No. 435 was in 1949 re-assigned by him to late Anthony upon
the repayment of the mortgage debt of Three thousand five hundred pounds
(£3,500) but denies that Plot 435A formed part of the mortgage transaction as
herein explained or that it belongs to late Anthony. “12. The defendant says
that the said mortgage of 11th November, 1927 became null and of no effect upon
the execution of the said further transactions in 1931. “13. Alternatively, if,
which is denied, the said mortgage is deemed to have present effect the
defendant says that he has been a mortgagee in possession since 1927 and that
the plaintiff is barred from his remedy by the operation of the Real Property
Limitation Act 1833.”

The case was heard in the Land Court at Kumasi, a court of the
then Supreme Court of the Gold Coast, and the claim of the plaintiffs was
successful. The learned judge accepted the view that the indenture of 1927 was
a mortgage which contained a provision which constituted a clog on the equity
of redemption. In regard to the events of the year 1931, the learned judge said
that it was argued by the plaintiffs that they were in pursuance of the
mortgage of 1927 and by the defendant that they were in implementation of the
wider agreement whereby one</main>