POKU vs. GHANA COMMERCIAL BANK [1989]DLCA654

Date	1989-01-27
Suit No.
Citation No.	[1989]DLCA654

AMPIAH JA

LAMPTEY JA

ESSIEM J.A.

EDUSEI FOR THE APPELLANT.

TSRIBI (WITH HIM MISS. ODONKOR) FOR THE RESPONDENTS.

[1989]DLCA654
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >POKU <o:p></o:p>vs. <o:p></o:p>GHANA COMMERCIAL BANK<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1989-90] 2 GLR 37<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:
27
JANUARY 1989<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">

EDUSEI 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">

AMPIAH, LAMPTEY AND ESSIEM JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMPIAH J.A.<o:p></o:p>In 1957
the plaintiff had obtained a loan of £1,500 from the first defendant-bank and
secured the loan with his house No. 40, Block 12, M.E. Extension, Kumasi. The
plaintiff had failed to repay the loan, whereupon the first defendant-bank had
had the security sold by auction in terms of the mortgage deed. The second
defendant had bought the house. The plaintiff then took this action to have the
sale declared null and void, to set aside the sale and have the house
reconveyed to him. Both parties relied on the mortgage deed, exhibit A. The
learned trial judge at the end of the case found that there was a breach of the
loan agreement for non-payment of the loan and that there was no proper service
of the demand notice for the failure to pay back the loan. He held therefore
that the sale was in breach of the terms of the agreement. He proceeded then to
deliver himself of his judgment thus:<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">“On the
basis of the above authorities, I ought to hold that the failure of the first
defendant to give demand notice to the plaintiff was a mere irregularity and
therefore the sale of the property cannot be set aside. The second defendant
therefore acquired a valid title. The proper remedy of the plaintiff lies in
damages against the first defendant . . .”<o:p></o:p><o:p>&nbsp;</o:p>He then
stated what in law the plaintiff was entitled to by way of damages. But finding
no evidence to support the value of the house at the time of sale, he deferred
the assessment of the damages together with the costs. It is against this, that
the plaintiff has appealed to this court.<o:p></o:p><o:p>&nbsp;</o:p>The
substance of the plaintiff’s submission in this appeal is that the learned
trial judge having found that there was a breach in the mortgage deed for
non-service of the demand notice he should have declared the sale null and void
and set it aside accordingly; thus restoring to the plaintiff his said house.
In coming to his conclusion, the learned trial judge had relied on clause 4 (5)
of the mortgage deed, exhibit A, which the parties by their own conduct had
agreed should be binding on them. This clause provides:<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">“That no
purchaser . . . under the powers herein before contained shall be bound or
concerned to see or require whether any such default has been made or otherwise
as to the propriety of such sale or be affected by notice that no such default
has been made or that the sale is otherwise unnecessary or improper and
notwithstanding any impropriety or irregularity whatsoever in any such sale . .
. the sale shall as regards the purchaser . . . be deemed to be within the
afore-said power and be valid accordingly.”<o:p></o:p><o:p>&nbsp;</o:p>For the
resolution of what was to be done in the circumstances, the learned trial judge
sought guidance from Coote’s Law of Mortgages (9th ed.), Vol. II at 925 where
it is stated:<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">“Where
conditions are imposed upon the exercise by a mortgagee of his power of sale,
the right of the mortgagor to restrain a sale on the ground that the conditions
have not been complied with is frequently to a great extent neutralised by the
insertion of a provision, usually called the ‘purchaser’s protection clause’,
declaring that, upon any sale purporting to be made in pursuance of the power,
the purchaser shall not be bound to inquire whether the conditions have been
performed or observed. In such a case the mortgagee can sell, and make a good
title to a bona fide purchaser without notice of the breach of the conditions,
and the contract for sale will bind the mortgagor, whose only remedy will be in
damages against the mortgagee . . .”<o:p></o:p><o:p>&nbsp;</o:p>There is
ample support for this principle of law in our local cases on which the learned
trial judge also relied: see Marfo v. Edusei [1964] G.L.R. 365, S.C. and
Akyeampong v. Atakora (1952) 14 W.A.C.A. 4.<o:p></o:p>