MARFO AND OTHERS vs. ADUSEI [1964]DLSC1926

Date	1964-05-25
Suit No.
Citation No.	[1964]DLSC1926

SARKODEE-ADDO C.J

OLLENNU JSC

ACOLATSE J.S.C.

N. Y. B. ADADE FOR THE APPELLANTS.

J. E. C. LUTTERODT FOR THE RESPONDENT.

[1964]DLSC1926
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >MARFO AND OTHERS <o:p></o:p>vs. <o:p></o:p>ADUSEI <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 365<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">

DATE:
25TH MAY 1964.<o:p></o:p>

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

N. Y. B. ADADE FOR THE APPELLANTS.<o:p></o:p>

J. E. C. LUTTERODT 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 windowtext 1.5pt;
padding:0in 0in 0in 0in">

SARKODEE-ADDO C.J., OLLENNU AND
ACOLATSE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.S.C.<o:p></o:p>Ollennu
J.S.C. delivered the judgment of the court. The respondent, commenced these
proceedings at Kumasi, in the Land Division of the then Supreme Court, claiming
(i) an order to set aside the sale of a farm made under a mortgage, (ii)
accounts of the proceeds of the said farm, and (iii) damages for wrongful sale
thereof. The material averments in his statement of claim are that he mortgaged
the farm in dispute and another one to secure a capital loan of £G300 and
interest of £G150 thereon; that when payment became due, the mortgagee, the
first appellant, placed public notice advertising the farms for sale at public
auction without giving him one month’s notice of his intention to sell as
provided under the mortgage; that upon an approach the respondent made to the
first appellant, the latter agreed to postpone the sale for a year; and that in
breach of his agreement to postpone the sale, and without informing the
respondent, the first appellant caused the farm to be sold three months after
the date originally advertised for the sale to be made. The sale was conducted
by the third appellant, a licensed auctioneer, and the farm was knocked down to
the second appellant, the highest bidder at the auction sale.<o:p></o:p><o:p>&nbsp;</o:p>The
defence of the first and third appellants at the trial was that the sale was
made in compliance with the provisions of the mortgage deed; they denied the
allegation that the first appellant agreed to postpone the sale. And the
defence of the second appellant was that he was a bona fide purchaser without
notice of the breach of the condition to give notice, and his title is
therefore protected by the purchaser’s protection clause in the mortgage deed.<o:p></o:p>Five
issues were set down for trial, the most important of them were: (1) whether
the mortgage debt was made of £G300 principal with £G150 interest thereon, (2)
whether or not one month’s notice was given to the plaintiff (respondent)
before the property was sold, (3) whether or not the first defendant
(appellant) agreed to postpone the sale, and consequently had the auction
notices filed in February 1958 withdrawn, and (4) whether fresh auction notices
were filed before the sale of the property in May 1958.<o:p></o:p><o:p>&nbsp;</o:p>It
appears that although the respondent had all these and other issues set down
for trial, his main complaint at the trial was, that the sale was void because
in February 1958 the first appellant, after he had had the property advertised
for sale (by auction notice, exhibit A, dated 20 February 1958), agreed to
postpone the sale for a period of twelve months, but that he committed a breach
of this agreement. This is borne out in the evidence he gave just before the
conclusion of his evidence-in-chief where he said: “I say in view of the
subsequent agreement the defendant should not have sold the farm and the sale
is unlawful and should be set aside.” It is also confirmed in the final address
of his counsel to the court below, the full text of which is as follows:
“Action not on the ground that no notice was served but on the ground that
property was released from attachment - no fresh notice went out.”<o:p></o:p><o:p>&nbsp;</o:p>The
learned commissioner, in a fairly short judgment, made a brief summary of the
evidence led on behalf of the parties without making any critical examination
or evaluation of any of them; he then concluded by entering judgment for the
plaintiff in the following 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">“I accept
the evidence of the plaintiff, and that the defendant agreed to the extension
of time to 30 January 1959, and that the sale of plaintiff’s cocoa farm in May
1958 was unlawful and that plaintiff had no notice as required under the
mortgage. I therefore give judgment for the plaintiff, set aside the sale of
plaintiff’s cocoa farm set out in his statement of claim, order an account of
the proceeds of the cocoa collected from the time of the sale to date of
judgment, but as no damage has been proved, I award no damages . . .”<o:p></o:p><o:p>&nbsp;</o:p>