DUA vs. AFRIYIE AND OTHERS [1971]DLCA2109

Date	1971-02-22
Suit No.
Citation No.	[1971]DLCA2109

APALOO JA

LASSEY JA

SOWAH J.A.

JOE REINDORF FOR THE APPELLANT.

P. A. ADJETEY FOR THE RESPONDENTS.

[1971]DLCA2109
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													<main id="main" class="content" style="min-height: 60rem" >DUA <o:p></o:p>vs. <o:p></o:p>AFRIYIE 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] 1 GLR 260<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:
22 FEBRUARY 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">

JOE
REINDORF FOR THE APPELLANT.<o:p></o:p>

P. A.
ADJETEY 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>This
appeal is from the judgment of the Circuit Court, Sunyani (his honour Judge
Okai), dated 11 January 1968. The judgment, dismissed a claim by the appellant
to recover from the respondents £G474 or N¢948.00 being the balance of money
lent by the appellant to the first respondent and guaranteed by the other
respondents.<o:p></o:p><o:p>&nbsp;</o:p>The
transaction was evidenced in writing and was produced in evidence. It states
that the first respondent received from the appellant the sum of £G600 “being
money borrowed without interest.” The agreement then stipulates the dates when
repayments were to be made and the amount of such repayment. This was
invariably shown as £G50. The appellant’s complaint was, that the first respondent
made default with the payment and by November 1964, he had paid only £G126. The
writ was taken out to recover the unpaid balance. The respondents admit the
loan transaction and the fact that only £G126 out of it was repaid. But they
averred that in truth the actual sum they received from the appellant was
£G360. According to them, the appellant agreed to grant them a loan of £G400.
He was to charge interest of £G200. Thus their total agreed indebtedness was
£G600. This was what was stated in the document which the appellant caused to
he prepared. But when they came to receive the physical cash, the appellant
deducted from it £G40. This sum was said to be a permitted customary deduction
called “Nteani” or “Drink.” The respondents therefore claimed that the
transaction was harsh and unconscionable and they prayed that it be re-opened
under the Loans Recovery Ordinance, Cap. 175 (1951 Rev.). The appellant
disputed this version of the facts and stuck to his story that he gave out to
the respondents £G600 in cash without any deduction and entirely without
interest.<o:p></o:p><o:p>&nbsp;</o:p>A serious
issue was therefore joined between the parties on the facts. The learned
circuit judge resolved this in favour of the respondents. He held accordingly
that the appellant contravened various provisions of the Moneylenders
Ordinance, Cap. 176 (1951 Rev.), and that the loan was therefore irrecoverable.
It is this conclusion that the appellant sought to reverse by this appeal.<o:p></o:p><o:p>&nbsp;</o:p>Mr.
Reindorf for the appellant did not question the learned judge’s conclusion on
the facts. This is an extremely simple issue of fact and eminently suited for
the determination of a tribunal of first instance. I do not think counsel would
have met with any success if he had attempted to displace those findings. But
his main complaint was that the evidence led did not justify the finding that
the appellant was a moneylender. It was said the judge did no more than rely on
the presumption raised by section 3 of the Moneylenders Ordinance. It was said
that that presumption did not relieve the respondents of proving that the
appellant was a money-lender and that, in any event, there was evidence which
rebutted that presumption. Counsel therefore submitted that as the appellant
was not shown to be a moneylender, the transaction was not affected by the some
what punitive provisions of the Moneylenders, Ordinance. For authority, he
relied on the English High Court case of Newton v. Pyke (1908) 25 T.L.R. 127.<o:p></o:p><o:p>&nbsp;</o:p>The
headnote in Newton v. Pyke reads:<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">“Whether
a person is carrying on business as a money-lender is in each case a question
of fact. It is </main>