GWIRA vs. STATE INSURANCE CORPORATION AND ANOTHER [1984]DLCA919

Date	1984-11-14
Suit No.
Citation No.	[1984]DLCA919

SOWAH J.S.C

FRANCOIS JA

ABBAN J .A.

NII ODOI ANNAN (WITH HIM GEORGE MENSAH) FOR THE APPELLANT.

J.K. AGYEMANG (WITH HIM KUDJAWU AND J. M. LAMPTEY) FOR THE RESPONDENTS.

[1984]DLCA919
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													<main id="main" class="content" style="min-height: 60rem" ><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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GWIRA <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 132<o:p></o:p>

DATE:
14 NOVEMBER 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NII ODOI ANNAN (WITH HIM GEORGE MENSAH) FOR THE
APPELLANT. <o:p></o:p>

J.K. AGYEMANG (WITH HIM KUDJAWU AND J. M. LAMPTEY)
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;
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SOWAH J.S.C., FRANCOIS AND ABBAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH J.S.C.<o:p></o:p>Sowah
J.S.C. delivered the judgment of the court. We have had no doubt as to the
decision we ought to arrive at in this appeal.<o:p></o:p><o:p>&nbsp;</o:p>The facts
in this case have been eloquently set down in the judgment of the Chief Justice
sitting as an additional High Court judge. However in the interest of clarity,
we state as briefly as possible the salient facts. Sometime in September 1966
the appellant took out a loan of ¢10,000 for the purpose of building a house at
East Cantonments, now the subject matter of these proceedings. That house was
built by the Ghana National Construction Corporation.<o:p></o:p><o:p>&nbsp;</o:p>Due to
the appellant’s failure to honour his obligations, in September 1970 the State
Insurance Corporation (the first respondent herein) took out a writ for the
recovery of the loan which then stood at ¢10,000. It is of some interest to
note that the appellant had not paid a pesewa of that loan. The appellant
entered appearance and a defence. At the trial the appellant, acting by
counsel—the late Isaac Amoo-Lamptey of blessed memory—submitted to judgment.
The learned judge accordingly entered judgment in the sum of ¢10,925 with ¢500
costs and decreed that the mortgage be enforced by foreclosure and sale. The
evidence of the appellant at the trial does indicate that his counsel informed
him of the judgment soon after it was given. He himself stated: “On 8 April
1971 I heard that judgment was entered. My lawyer was the late Amoo-Lamptey. He
said he could not find me so the judge entered judgment for the relief indorsed
on the writ.” The latter part of the above statement appears to us to be more
accurate.<o:p></o:p>The
judge’s notes record simpliciter that Mr Amoo-Lamptey submitted to judgment. It
is obvious from the previous proceedings and the present that there was no
defence to the action either at law or in fact. It is difficult to see what
other honourable course was open to the appellant and his counsel.<o:p></o:p><o:p>&nbsp;</o:p>Pursuant
to the judgment, the first respondent sold the property which was bought by the
second respondent. Nearly two years after the appellant took action claiming a
declaration that the foreclosure order made by the High Court on 8 April 1971
against his property is void and that the sale of property premises No. 16,
East Cantonments, Accra by the defendant was wrongful and did not pass any
title to the purchaser and that the said sale should be set aside for
irregularities and misrepresentation.<o:p></o:p><o:p>&nbsp;</o:p>The
learned Chief Justice before whom the action was tried, found no difficulty in
disposing of the action and dismissing it. It was from this dismissal that the
appeal has been lodged. Nii Odoi Annan, counsel for the appellant, made the
following submissions; in passing we note that the same submissions were urged
at the trial and were seriously considered and very adequately dealt with by
the trial judge. Nevertheless out of respect for counsel’s strenuous effort to
prove the High Court reasoning wrong, we intend to consider them. We begin with
the observation that in this court, counsel conceded that the relation between
the appellant and the first respondent was that of mortgagor and mortgagee by
reason of the deposit of title deed by the appellant to secure the loan. It
will be recalled that at the court of first instance, counsel’s stand was that
this relationship was one of a lender and borrower.<o:p></o:p>