BASSIL vs. KABBARA AND ANOTHER [1966]DLSC1663

Date	1966-01-31
Suit No.
Citation No.	[1966]DLSC1663

SARKODEE-ADOO C.J.

APALOO JSC

SIRIBOE J.S.C.

K. NARAYAN FOR THE APPELLANT.

J. C. ARMAH FOR THE RESPONDENTS.

[1966]DLSC1663
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													<main id="main" class="content" style="min-height: 60rem" >BASSIL <o:p></o:p>vs. <o:p></o:p>KABBARA AND ANOTHER <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1966] GLR 102<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:
31 JANUARY 1966.<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">

K. NARAYAN FOR THE APPELLANT.<o:p></o:p>

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

SARKODEE-ADOO C.J., APALOO AND SIRIBOE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>On 12
February 1963, the appellant (hereinafter called the plaintiff) brought an
action against the respondents (hereinafter referred to as the defendants) in
the High Court, Accra, claiming the sum of £G1,922 being principal and interest
due from the defendants to the plaintiff in a moneylending transaction. The
plaintiff was, at all the times material to this case, a licensed money-lender.
The first defendant seems, on the evidence, to be the sole proprietor of an
unincorporated company which goes by the name of Ghana Furniture and
Manufacturing Co. The plaintiff advanced various sums of money to the
defendants and the receipt of these sums was duly acknowledged. The first
defendant issued post-dated cheques for the repayment of the loans but these
cheques were dishonoured on presentation. As neither defendant was willing or
able to pay these sums after receiving notice of dishonour, the plaintiff
sought to recover the aggregate value of them by action.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants answered that neither the cheques which were issued in repayment of
the loans nor the receipts which were given in acknowledgement represented the
true transactions. They said the loans were in fact much smaller than what the
documents ex facie show and that the interest charged was excessive and that
the whole transaction sinned against various sections of the Moneylenders
Ordinance1 on which they specifically relied. They also say that no contemporaneous
record of the loan transaction was made in obedience to the mandatory
provisions of the Moneylenders Ordinance. Accordingly, the defendants pleaded
that the loans were irrecoverable.<o:p></o:p>Although
there is no direct evidence what sort of business the second defendant company
carries on, it seems that it also manufactures steel gates. They claimed that
they manufactured some steel gates for the plaintiff which were at the date of
the action unpaid for. Accordingly, they counterclaimed for the amount which
according to them was due.<o:p></o:p><o:p>&nbsp;</o:p>When
evidence concluded, the learned trial judge Acolatse J. (as he then was)
reserved judgment. As the defendants relied on various sections of the
Moneylenders Ordinance, it became necessary for the learned judge to read and
familiarize himself with such sections of the Ordinance as were relied on.
While going through the Ordinance for the purpose of preparing his judgment, he
noticed section 29 which prescribed the time within which actions to recover
loans affected by the Ordinance should be brought. As neither party relied on
any statute of limitation, the learned judge, instead of writing his judgment,
invited argument as to the applicability of the section. When the parties
appeared, no further evidence was heard but the judge invited submissions from
counsel on the applicability of the Ordinance. As is only to be expected,
counsel for the defendants submitted that the statute of limitation applied and
put the plaintiff out of court. It was contended for the plaintiff that as that
section was not relied upon by the defendants, it would not be right to rely on
it to his detriment.<o:p></o:p><o:p>&nbsp;</o:p>After
this, the court then further adjourned and the learned trial judge proceeded to
prepare his judgment. He rejected in toto the case of the defendants and was
forthright in condemning them for seeking to avoid the payment of their just
debts by reliance on various provisions of the Moneylenders Ordinance. On all
the issues which were joined, the learned judge found for the plaintiff and
held that the various sections of the Ordinance on which the defendants relied
did not avail them. He however felt himself constrained by section 29 of the
Ordinance to dismiss the suit on the ground that the action was barred by lapse
of time.<o:p></o:p><o:p>&nbsp;</o:p>He held
that the defendants failed to substantiate their counterclaim and dismissed
that also. The defendants did not appeal against that part of the judgment
which dismissed their counterclaim and whether the learned judge was right or
wrong in dismissing it, is not an issue in this appeal. The plaintiff however
feels aggrieved by the dismissal of the suit and hence this appeal.<o:p></o:p>