DAPAA AND ANOTHER vs. WAYE [1966]DLSC1673

Date	1966-01-10
Suit No.
Citation No.	[1966]DLSC1673

AZU CRABBE JSC

APALOO JSC

BRUCE-LYLE J.S.C.

J. H. COBBINA FOR THE APPELLANTS.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1966]DLSC1673
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													<main id="main" class="content" style="min-height: 60rem" >DAPAA AND ANOTHER<o:p></o:p>&nbsp;vs. <o:p></o:p>WAYE <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1966] GLR 1<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:
10 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">

J. H. COBBINA FOR THE APPELLANTS.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF 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">

AZU CRABBE, APALOO AND BRUCE-LYLE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE J.S.C.<o:p></o:p>The
action in this case arose out of a money-lending transaction between the
parties. The case for the plaintiff was that he lent the defendants £G2,300,
with a further £G700 without interest, making a total of £G3,000 with £G12
incidental expenses. The defendants challenged these facts and alleged that
they borrowed at first £G1,000 and later £G700, and that the plaintiff charged
100 per cent interest in each case, making a total of £G3,600 plus incidental
expenses of £G12 less £G600 which they had refunded. The plaintiff’s case was
based on a document which was tendered in evidence and marked exhibit A. The
learned trial judge found as a fact that the plaintiff’s evidence did not
disclose the true nature of the transaction between the parties. He accepted
the defendant’s evidence and was satisfied that the defendant’s version of the
transaction was the true one. One of the issues agreed upon the trial was
whether the mortgage deed which the plaintiff was seeking to enforce was void
and unenforceable and the plaintiff was therefore not entitled to any portion
of his claim in the action. In my view, the true effect of the learned judge’s
findings is that the transaction contravened section 26 (1) of the Moneylenders
Ordinance.1 Under section 26 (2) this transaction was void and unenforceable.
Nowhere in his judgment did the learned trial judge direct his attention to the
various provisions of the Ordinance. With all due respect to the learned trial
judge, I think he erred in giving judgment for the plaintiff. In my view, he
should have declared the transaction void and unenforceable. I would,
therefore, allow the appeal and set aside the judgment given by the learned
trial judge.<o:p></o:p><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C.<o:p></o:p>I
entirely agree. On the learned judge’s finding, the document, exhibit A, did
not disclose the true transaction between the parties and this fact was known
to the plaintiff. Yet he tried to lead evidence to correspond with the contents
of that document. On the learned judge’s finding, that evidence was consciously
false. Accordingly, the plaintiff sinned against section 26 (1) of the
Money-lenders Ordinance and the transaction was thereby avoided by subsection
(2) of section 26 of that Ordinance. In those circumstances, in my opinion, the
learned judge should have declared the transaction void and unenforceable. The
view accords with the decision of this court in Ayiwah v. Badu.2 For these
reasons, I also agree that this appeal be allowed.<o:p></o:p><o:p>&nbsp;</o:p>JUDGMENT OF BRUCE-LYLE J.S.C.<o:p></o:p>I also
agree.<o:p></o:p>

<o:p>&nbsp;</o:p></main>