AKUNTO AND OTHERS vs. FOFIE AND ANOTHER [1973]DLCA2358

Date	1973-07-17
Suit No.
Citation No.	[1973]DLCA2358

KOI LARBI JSC

SIRIBOE J. S.C

ARCHER J.A.

DR. SETH TWUM FOR THE APPELLANTS.

C.F. HAYFRON-BENJAMIN FOR THE RESPONDENTS.

[1973]DLCA2358
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													<main id="main" class="content" style="min-height: 60rem" >AKUNTO AND OTHERS <o:p></o:p>vs. <o:p></o:p>FOFIE AND ANOTHER <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;[1973]
1 GLR 81<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
17 JULY 1972.<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">

DR. SETH TWUM FOR THE APPELLANTS.<o:p></o:p>

C.F. HAYFRON-BENJAMIN 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">

KOI LARBI AND SIRIBOE JJ. S.C. AND
ARCHER J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KOI LARBI J.S.C.<o:p></o:p>Koi Larbi
J.S.C. delivered the judgment of himself and Archer J.A. In December 1961 the
respondents in this appeal instituted proceedings against the appellant Opanin
Kwame Akunto, a licensed moneylender for a declaration that a moneylending
transaction between the parties was harsh and unconscionable and should be
re-opened under the Loans Recovery Ordinance, Cap. 175 (1951 Rev.). The High
Court sitting at Kumasi on 20 June 1963, dismissed the respondents’ claim. They
then appealed to the Court of Appeal and won the appeal on the ground that not
only was the transaction harsh and unconscionable but also on the ground that
the moneylender had transgressed certain provisions of the Moneylenders
Ordinance, Cap. 176 (1951) Rev.), and therefore the whole moneylending
transaction and the mortgage executed by the respondents were void. It was
therefore held that the respondents were entitled to recover two cocoa farms
which were mortgaged to secure the loan and also to cancel the mortgage deed.
Before the Court of Appeal delivered its judgment in Fofie v. Akunto, Court of
Appeal, 4 December 1967, unreported and unknown to the court, the appellant,
who did not appear during the hearing of the appeal, had instructed a licensed
auctioneer, one Wiafe-Akenten, to sell the two cocoa farms by virtue of a power
of sale vested in the mortgagee. The auctioneer then sold the properties to one
Yaw Krah for £G740 on 24 July 1963. The sale was never brought to the notice of
the Court of Appeal.<o:p></o:p><o:p>&nbsp;</o:p>As a
result of the judgment of the Court of Appeal, the respondents sued the
moneylender, the auctioneer and the purchaser at the Kumasi High Court, for an
order setting aside the auction sale on account of fraud or in the alternative
by virtue of the Court of Appeal decision in favour of the respondents. On 4
July 1969 the learned trial judge after hearing evidence from all the parties
concluded his judgment 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">“The
third defendant, in my judgment, is clearly a bona fide purchaser without
notice of any want of title in the first defendant. That position however,
cannot in the light of the determination of the Court of Appeal as to the
effect of the mortgage transaction, protect his purchase and he is affected
adversely by the want of validity of the transaction. In this respect it
matters not that he was not a party to the previous proceedings since his title
is derived from the first defendant. The plaintiff is therefore entitled to
judgment for an order setting aside the sale of his farm at Sabronum on 24 July
1963 to the third defendant. The plaintiff is further entitled to an order for
an account of the proceeds of the farm by the third defendant with effect from
the date of purchase. With regard to the claim for damages for trespass that
claim cannot succeed against the first or second defendant since they were not
shown to be in possession of the farm, and it must fail also against the third
defendant because I do not see that trespass is the appropriate remedy in the
particular circumstances.”<o:p></o:p><o:p>&nbsp;</o:p>After the
sale, the purchaser was put in possession and according to his own evidence in
the court below, he had plucked twenty loads in the first year, 25 in the
second year, 30 loads in the third year, 30 loads in the fourth year and twenty
loads at the time of the litigation. It is clear from the judgment that if the
respondents were to recover possession of the farms, they had to go after the
purchaser. They were also entitled to an account from the purchaser.<o:p></o:p><o:p>&nbsp;</o:p>When the
notice of appeal against the judgment of the court below was filed on 10 July
1969 it was thumbprinted by the moneylender Akunto for and on behalf of the
second and third appellants, that is, the auctioneer Wiafe-Akenten and the
purchaser Yaw Krah. On the first day of the hearing, Dr. Seth Twum was asked by
the court to state on whose behalf he was appearing. At first, he was not sure
but later announced that he was appearing for all three appellants. At the
resumed hearing, Mr. Hayfron-Benjamin raised a preliminary objectio</main>