ANANE AND OTHERS vs. DONKOR AND ANOTHER (CONSOLIDATED) [1965]DLSC1777

Date	1965-03-22
Suit No.
Citation No.	[1965]DLSC1777

MILLS-ODOI JSC

OLLENNU JSC

BRUCE-LYLE J.S.C.

OHENE-AMPOFO (WITH HIM OKORLEY) FOR THE APPELLANTS.

HAYFRON-BENJAMIN JUN. FOR THE FIRST RESPONDENT.

TOTOE FOR THE SECOND RESPONDENT.

[1965]DLSC1777
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													<main id="main" class="content" style="min-height: 60rem" >ANANE AND OTHERS <o:p></o:p>vs. <o:p></o:p>DONKOR AND ANOTHER (CONSOLIDATED) <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 188<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:
22 MARCH 1965.<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">

OHENE-AMPOFO (WITH HIM OKORLEY) FOR THE
APPELLANTS.<o:p></o:p>

HAYFRON-BENJAMIN, JUN. FOR THE FIRST RESPONDENT.<o:p></o:p>

TOTOE FOR THE SECOND 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">

MILLS-ODOI, OLLENNU AND BRUCE-LYLE
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. This appeal is from a judgment of
Apaloo J. (as he then was) given in the High Court, Kumasi, in two transferred
suits, consolidated. The plaintiff in each of the two suits is the husband of
the co-plaintiff, who is a sister of the whole-blood of the first defendant.
The dispute is in respect of four cocoa farms, one situate at a place called
Ayomso-kwanso in an area or district known as Fahoyeden, and the other three
are situate at a place called Biakwanso in the same district of Fahoyeden.<o:p></o:p><o:p>&nbsp;</o:p>The first
defendant was at all times the person in possession of each of the four farms
openly exercising full acts of ownership thereof. The co-plaintiff by deed
dated 10 March 1952, mortgaged some four farms to her husband, the plaintiff,
to secure a debt owed to him by the first defendant; according to the plaintiff
and the co-plaintiff, the farms in dispute are the same as those the subject-matter
of that mortgage. By two deeds of mortgage dated 3 March 1953 the first
defendant mortgaged the first two of the four farms in dispute herein to the second
defendant in the second suit to secure a debt he owed him; and by another deed
dated 28 September 1953 he mortgaged the third and fourth of the farms in
dispute to the second defendant in the first suit to secure a debt owed him
too.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The first
defendant having made default with the payment of the amount due under each of
the two mortgages, each of the mortgagees exercised his power of sale under his
mortgage and caused the third defendant in each of the two suits, a licensed
auctioneer, to sell the respective farms at a public auction. The fourth
defendant in the second suit was the purchaser of the first two farms, and the
fourth defendant in the second suit was the purchaser of the last two of the
four farms.<o:p></o:p><o:p>&nbsp;</o:p>The case
of the plaintiff and the co-plaintiff is that although the first defendant was
the person acknowledged to be in possession of each of the farms, openly
exercising rights of full ownership thereof, yet in actual fact he was a mere
agent of the co-plaintiff. They allege that the first two farms were cultivated
by the first defendant with the assistance of labour paid for with moneys
supplied to him by the co-plaintiff; they also allege that the remaining two
farms were purchased by the first defendant at a public auction and though the
purchase was ostensibly for himself and he had a certificate of purchase on it
issued to him in his name, yet they say, the purchase was made with moneys of
the co-plaintiff in his, the first defendant’s, possession. The plaintiff
therefore claimed (a) declaration that the legal estate in each of the four
farms is vested in him, and (b) an order for injunction against the defendants;
the co-plaintiff also claimed (i) declaration of title of ownership, i.e. the
equity of redemption, to each of the four farms, and (ii) an order to declare
each of the two mortgages made by the first defendant void of effect.<o:p></o:p>The first
defendant in his statement of defence admitted the claim of the plaintiff and
the co-plaintiff, and also gave evidence in support thereof. The trial judge
found in favour of the plaintiff and co-plaintiff in each of the two suits and
granted each of them the reliefs sought. The judgment of the trial was
impeached on six grounds, each of which is important; they are:<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">“(1) the
judgment is against the weight of evidence. <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">