AMOAH vs. MANU [1962]DLSC1340

Date	1962-04-02
Suit No.
Citation No.	[1962]DLSC1340

KORSAH JSC

C.J. JSC

VAN LARE JSC

ADUMUA-BOSSMAN J.S.C.

C. F. HAYFRON-BENJAMIN JNR. FOR THE APPELLANT.

J. D. REINDORF FOR THE RESPONDENT.

[1962]DLSC1340
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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:#00B0F0">AMOAH <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:#00B0F0">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:#00B0F0">MANU<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;[SUPREME COURT]<o:p></o:p>[1962] 1 GLR 218<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

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"> 2 APRIL 1962.<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">

C.
F. HAYFRON-BENJAMIN JNR. FOR THE APPELLANT.<o:p></o:p>

J.
D. REINDORF FOR THE RESPONDENT.<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">

KORSAH C.J., VAN LARE AND
ADUMUA-BOSSMAN, JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
ADUMUA-BOSSMAN J.S.C.<o:p></o:p>The events which led to the institution of the action resulting in
this appeal are in the main undisputed and they are these: The plaintiff by
deed of mortgage dated the 4th June, 1956, which was admitted at the trial as
exhibit A, mortgaged his said cocoa farm to the defendant to secure advances of
money up to the amount of £G500 to be made by the defendant to him for the
purchase and supply of cocoa to the said defendant during the period of the
1956-57 cocoa season. The provisions and/or terms of the said mortgage which
are material to the determination of the issues which arose in this action will
be referred to, and where necessary reproduced, in due course. Following the
execution of the mortgage the plaintiff obtained advances up to the sum of £G300
and, commencing from September, 1956, purchased and supplied cocoa to the
defendant up to the end of December 1956. On the 10th January, 1957, the
defendant wrote a letter, admitted at the trial as exhibit 4 addressed to the
plaintiff notifying him that the season was then closed and that his (the
plaintiff’s) account showed a debit balance of £G223 16s. 3d.; the defendant,
further, by that letter demanded payment of that amount and threatened to
resort to certain measures upon default in payment of the amount. The terms of
this letter which was relied upon at the trial and is relied on in this appeal
as constituting a proper or sufficient notice of demand, non-compliance with
which entitled the defendant to exercise the power of sale reserved in the mortgage,
will be referred to and considered in due course.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Continuing, however, with our narrative of events, the defendant
supported by his second witness, one Kofi Boakye, alleged that copy of this
notice of demand was served on the plaintiff at his residence at Teppa - but
both were unable to testify to the date of this alleged service. Thereafter on
or about the 2nd February, 1957, cocoa to the value of £G108 1s. 10d. was
received from one Kwasi who stated that by arrangement with the plaintiff the amount
was to be credited to the account of the plaintiff, and this being done the
plaintiff’s indebtedness was reduced to £G124 16s. 3d. For non-payment of this
amount of £G124 16s. 3d., the defendant instructed a licensed auctioneer, one
Daniel Antoh, the defendant’s first witness, who according to his evidence,
issued notice of sale on 16th February, 1957, served the plaintiff with a copy
ten days thereafter, i.e. on the 26th February (because it could not be served
earlier) and on the 8th March, 1957, sold the mortgaged farm by public auction
and filed his account on the 12th April, 1957. Thereafter, the plaintiff wrote
to the defendant on the 2nd April, 1957, a letter, copy whereof was admitted as
exhibit B, the material terms of which were the following, “since the season of
1956-57 is ended, i.e., by the end of the month of March 1957 . . . . I would
therefore be grateful for you to give a definite date on which I should call at
your office for closing of my account with you”. The defendant did not reply
until the 15th May, 1957, when he replied in these terms:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“While acknowledging the receipt of yours under registered cover
dated the 2nd April 1957 . . . in response thereto, I have to make it
categorical to the effect that I have no account or accounts to make with you
in any shape or form, since the outstanding debt between you as debtor and I as
creditor, has been settled already.”<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff therefore proceeded to have the writ in this case
filed on the 3rd July, 1957, by counsel on his behalf.<o:p></o:p>To appreciate the full import of the plaintiff’s letter and in
particular his reference to the cocoa season, one has to turn to the mortgage
deed which contained the following important provision or term that:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">