TAWIAH-YESEREH vs. C.F.A.O. AND ANOTHER [1966]DLSC1765

Date	1966-05-23
Suit No.
Citation No.	[1966]DLSC1765

OLLENNU JSC

AKAINYAH JSC

BRUCE-LYLE J.S.C.

LUTTERODT FOR THE APPELLANT.

B. J. DA ROCHA FOR THE FIRST RESPONDENTS.

[1966]DLSC1765
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													<main id="main" class="content" style="min-height: 60rem" >TAWIAH-YESEREH <o:p></o:p>vs. <o:p></o:p>C.F.A.O. AND ANOTHER <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1966] GLR 357<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:
23 MAY 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">

LUTTERODT FOR THE APPELLANT.<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">

OLLENNU, AKAINYAH AND BRUCE-LYLE
JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BRUCE-LYLE J.S.C.<o:p></o:p>This is
an appeal against the judgment of Murphy J. dated 25 June 1959, of the Land
Court, Kumasi, whereby the court dismissed the claim of the plaintiff-appellant
(hereinafter referred to as the plaintiff) against the defendants-respondents
(hereinafter referred to as the defendants) for (a) £G400 damages for wrongful
and unlawful attachment of house No. N.T.E.R. 180 situate at Kumasi and (b) an
order of the court releasing the said house from attachment.<o:p></o:p><o:p>&nbsp;</o:p>The
undisputed facts are that on 29 December 1953, Kwaku Forkuo, the plaintiff’s
predecessor, mortgaged his house No. N.T.E.R. 180 in Kumasi to the first
defendants as security for employment by them of his nephew by name D. K. Atta
“ as a produce buyer, credit customer, storekeeper and or salesman and or in
any other capacity.” On the strength of this security, Atta was employed by the
first defendants as an ordinary storekeeper under an agreement dated 18 January
1954. Atta, wishing to change the nature of his employment to that of a
commission storekeeper, wrote a letter to that effect to the first defendants,
endorsed by the mortgagor Kwaku Forkuo, and in consequence of that letter,
fresh agreements dated 12 April 1955 and 17 September 1955, were entered into
betweeen Atta and the first defendants under which Atta was employed as a
commission storekeeper.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>In
August, September and October 1956, as a result of correspondence between
Forkuo and the first defendants and between their respective solicitors, stock
was taken at Atta’s store and a deficiency was discovered and after the first
defendants had given the necessary notice under the mortgage deed of December
1953, they caused the property house No. N.T.E.R. 180 to be attached for sale
on 17 April 1958.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff brought this action against the defendants in his capacity as
successor of Kwaku Forkuo who died in December 1957, and also as the devisee of
the house No. N.T.E.R. 180. It was the case for the plaintiff that the
subsequent agreements dated 12 April 1955 and 17 September 1955, under which
the first defendants employed Atta as a commission storekeeper were entered
into without the knowledge and consent of Forkuo and that the deficiency
incurred by Atta under those agreements could not be made good by the sale of
the property which was offered by Forkuo as security in the mortgage deed of
December 1953, since under that mortgage Atta was to be employed by the first
defendants as an ordinary storekeeper and produce buyer and that the subsequent
agreements having changed the status of the guarantee without the knowledge and
consent of Forkuo, the guarantor, discharged Forkuo from liability.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants’ case was that it was with the knowledge and consent of Forkuo that
the position of Atta was raised to that of a commission storekeeper and that
Atta continued to be employed in this new capacity for some time to the
knowledge of Forkuo; that whilst Atta was in the employment of the first
defendants in the new capacity, Forkuo wrote to the first defendants requesting
a discharge of the mortgaged property and as a result, Atta’s stock of goods
was checked and a deficit of £G2,881 2s. 4d. was discovered and Atta and his
uncle Forkuo were called upon by the first defendants to make good this
deficit. Upon failure to make good the deficit the first defendants, in
exercise of their right of sale under the mortgage of December 1953, instructed
the second defendant to sell the mortgaged property and the second defendant,
on the strength of this instruction, attached the house for sale.<o:p></o:p>The
following issues were set down by the plaintiff for trial:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
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