DUAH vs. DEBRA AND ANOTHER (CONSOLIDATED) [1967]DLCA1495

Date	1967-07-03
Suit No.
Citation No.	[1967]DLCA1495

OLLENNU JA

APALOO JA

LASSEY J.A.

OSEI NTI FOR THE APPELLANT.

DAVID S. EFFAH FOR THE RESPONDENTS.

[1967]DLCA1495
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													<main id="main" class="content" style="min-height: 60rem" >DUAH <o:p></o:p>vs. <o:p></o:p>DEBRA AND ANOTHER (CONSOLIDATED) <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 456<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:
3 JULY 1967.<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">

OSEI NTI 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, APALOO AND LASSEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.A.<o:p></o:p>This is
an appeal from a judgment of the High Court, Kumasi given in two suits
consolidated. The claims made in the two cases are identical and read as
follows:<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) An
order of the court setting aside the sale of the plaintiff’s farms described in
the schedule hereto attached on 16 March 1961 by the third defendant on the
instructions of the first defendant to the second defendant on the grounds that
the said sale was unlawful and irregular and that there was collusion between
the second and third defendants. <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">(2) An
order of the court re-opening the loan transaction between the plaintiff and
the first defendant under the Loans Recovery Ordinance on the ground that the
interest charged was harsh and unconscionable. <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">(3) An
order of the court in the exercise of its equitable jurisdiction to protect the
plaintiff as mortgagor from the first defendant as mortgagee nullifying the
sale of the plaintiff’s said properties by the first and third defendants to
the second defendant and permitting the plaintiff to pay to the first defendant
the amount reasonably due to him under a mortgage transaction between them.”<o:p></o:p><o:p>&nbsp;</o:p>The case
of the plaintiff in the first suit is that in February 1960, he as an elder of
the Agogo stool raised a loan of £G400 from the first defendant, and was
charged interest of £G200 thereon, but that in a mortgage deed which he had
prepared on the transaction, the first defendant caused the sum of £G90 to be
inserted as the interest charged. And the case of the plaintiff in the second
case also is that on the same day in February he too raised a loan of £G300
from the first defendant, and was charged interest of £G150, but that in a deed
of mortgage he caused to be prepared to evidence the transaction, the first
defendant caused an amount of £G50 only to be inserted as the interest charged.
The loans were secured with farms. These two loans were proved to have been
taken to finance a stool dispute which led to the deposition of the second
defendant, the appellant herein, from the Agogo stool.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs led evidence that they defaulted in paying the debts when they
became due, and thereupon the third defendant, a licensed auctioneer, went to
them at Agogo and informed them and the Agogohene that the first defendant had
instructed him to sell the mortgaged farms. They said that at their request the
third defendant agreed to give them time within which to pay. Consequently,
they said, they went to Kumasi and paid an amount of £G400 to the third
defendant on account of the two transactions, leaving a balance of £G600. They
then requested the third defendant to go with them to the creditor, the first
defendant, to apply to him for time within which to pay the balance due. But,
they said, the third defendant assured them that he himself would come to Agogo
to inform them of the result. A few days later, they said, the third defendant
came to them at Agogo while they were at funeral and told them that the first
defendant had agreed to extend the time by two months; the third defendant
claimed and was paid £G30 by the plaintiffs for his services in obtaining the
extension of time.<o:p></o:p><o:p>&nbsp;</o:p>But two
days later, while they were still engaged on the funeral celebrations, the
plaintiffs were informed that the third defendant had rushed to the town,
conducted a mock sale, and had declared one Frimpong, a relative of the second
defendant, the purchaser. The plaintiffs thereupon rushed to their solicitor
and handed to him £G650 to settle the debt.<o:p></o:p><o:p>&nbsp;</o:p>In
paragraphs (14), (15), (16), (</main>