ASARE vs. BROBBEY AND OTHERS, [1971]DLCA2082

Date	1971-07-19
Suit No.
Citation No.	[1971]DLCA2082

SIRIBOE J.S.C.

SOWAH JA

ARCHER J.A.

GYIMAH FOR THE APPELLANT.

ACKUN FOR THE FIRST AND SECOND RESPONDENTS.

DWAMENA FOR THE THIRD RESPONDENT.

[1971]DLCA2082
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													<main id="main" class="content" style="min-height: 60rem" >ASARE <o:p></o:p>vs. <o:p></o:p>BROBBEY AND OTHERS, <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 2 GLR 331<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:
19 JULY 1971.<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">

GYIMAH 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">

SIRIBOE J.S.C., SOWAH AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>Archer
J.A. delivered the judgment of the court. The appellant obtained a loan of
£G800 from the first respondent, a moneylender, and as security for the loan,
he executed a deed of mortgage encumbrancing his house, a leasehold at Kumasi.
Under the terms of the deed of mortgage, the appellant covenanted to repay the
loan within twelve months but as he was unable to repay the whole amount within
the stipulated period, the first respondent instructed the second respondent,
an auctioneer, to sell the mortgaged property relying on a power of sale
conferred on him by the mortgage deed. There was subsequently a public auction
conducted by the second respondent and at that auction, the third respondent,
as the highest bidder, bought the house, the subject-matter of the mortgage.<o:p></o:p><o:p>&nbsp;</o:p>Thereafter,
the appellant took out a writ of summons claiming a declaration that
notwithstanding the sale, he was still the owner of the house. The grounds for
the declaration sought were contained in the statement of claim which need not
be repeated verbatim in this judgment. The three main grounds were that as the
first respondent had accepted part-payment after the due date for the repayment
of the whole loan he had waived his rights under the mortgage and was estopped
from exercising his power of sale. The second ground was that no notice, as
required by the terms of the mortgage, was given to the appellant before the
sale. The third ground was that, in any case, the mortgage deed did not
expressly confer a power of sale on the first respondent.<o:p></o:p>The case
was therefore fought in the High Court at Kumasi on these grounds by the
appellant and the three respondents. But it appears from the record that after
learned counsels for the respondents had addressed the court on 7 February
1969, the hearing was adjourned to the 12 February for address by the learned
counsel for the appellant. On the latter day, learned counsels for the
respondents were absent, but learned counsel for the appellant proceeded to
address the court and for the first time in the proceedings submitted to the
court that as the mortgage deed was not registered under section 24 of the Land
Registry Act, 1962 (Act 122), the power of sale was illegally exercised.<o:p></o:p><o:p>&nbsp;</o:p>In his
judgment, the learned trial judge considered the submission by the appellant’s
learned counsel as to non-registration of the mortgage deed but held that this
submission should have been specifically pleaded and therefore rejected the
submission. The judgment therefore proceeded on the basis that the mortgage
deed was effective so as to confer enforceable rights on the appellant and the
first respondent. The learned trial judge after evaluating the evidence found
as a fact that no notice was given by the first respondent to the appellant but
the failure to give notice had been cured by a clause in the mortgage deed
which read: “Provided always that the title of purchaser shall not be
impeachable on the ground that no case has arisen to authorise the sale or that
the due sale was otherwise improperly exercised.” The learned trial judge
therefore relied on this protection clause and held that the third respondent
was a purchaser for value without notice (of the fact that no notice of
intention to sell had been given to the appellant), and therefore refused to
set aside the sale to the third respondent.<o:p></o:p><o:p>&nbsp;</o:p>There is
no doubt that if the question of registration under the Land Registry Act,
1962, had not arisen, the learned trial judge’s reasoning on the other issues
would have been legally correct and his conclusions would have been
unassailable.<o:p><</main>