DR. TONY ANTWI MENSAH vs. ATHENA FOODS COMPANY LTD AND AGRICULTURAL DEV. BANK [2015]DLCA8920

Date	2015-03-12
Suit No.	CIVIL APPEAL NO.H1/190/2014
Citation No.	[2015]DLCA8920

MARFUL- SAU JA (PRESIDING)

ACQUAYE JA

TORKORNOO JA

MAXWELL KOFI AMOAKOHENE FOR THE CLAIMANT/ APPELLANT

MATHEW OBENG FOR THE PLAINTIFF/ RESPONDENT

[2015]DLCA8920
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													<main id="main" class="content" style="min-height: 60rem" >DR. TONY ANTWI MENSAH<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p>ATHENA FOODS COMPANY LTD<o:p></o:p>(DEFENDANT/ JUD. DEBTOR)<o:p></o:p><o:p>&nbsp;</o:p>AGRICULTURAL DEV. BANK<o:p></o:p>(CLAIMANT/APPELLANT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL
NO.H1/190/2014&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; DATE: 12TH
MARCH, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MAXWELL
KOFI AMOAKOHENE FOR THE CLAIMANT/ APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MATHEW OBENG FOR THE PLAINTIFF/ RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>MARFUL-
SAU JA (PRESIDING), ACQUAYE JA, TORKORNOO JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
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</div>MARFUL-SAU, JA: <o:p></o:p>This
appeal relates to an interpleader action that was commenced in the High Court
by the claimant/ appellant Bank, the Agricultural Development Bank, which will
be referred to in this appeal simply as the appellant. The respondent, Dr. Tony
Antwi Mensah had obtained judgment against his former employer Athena Foods
Company Ltd and in enforcing the said judgment levied execution against a
landed property of the company; which property the company had been mortgaged
to the appellant herein. This mortgage was not registered. The case was set
down for legal argument since from the affidavits filed in the proceedings one
fundamental issue was raised. The issue related to the legal effect, if any, of
an unregistered deed of mortgage. The case of the respondent against the
claimant was simply that the non-registration of the mortgage deed made it
unenforceable. In other words since the mortgage was not registered the
claimant had no interest in the property so mortgaged.<o:p></o:p>At
the end of the trial the court dismissed appellant’s claim and held that since
the mortgage deed was not registered no interest was acquired in the property
by the appellant. It is against this ruling that this appeal was lodged. In the
Notice of Appeal, appellant formulated four main grounds of appeal and no
additional ground was filed. I have carefully read the record of appeal and the
written submissions of both counsel and I find that the appeal raises two
central issues that ought to be addressed. These are:- (1) what is the legal
effect of an unregistered deed of mortgage in an interpleader action such as in
this case? and (2) what is the effect of the charge created as a result of
registering the mortgage with the Registrar of Companies?<o:p></o:p>Now,
it is provided by section 3(2) of the Mortgages Act, 1972 (NRCD 96) as
follows:- <o:p></o:p>‘’Every writing evidencing a mortgage shall be deemed to
be an instrument, which may be registered in accordance with the Land Registry
Act, 1962, (Act 122)’’<o:p></o:p>And
section 24 of the Land Registry Act, provides that:-<o:p></o:p>‘’
(1) Subject to subsection (2), of this section, an instrument other than,<o:p></o:p>(a)
A Will, or<o:p></o:p>(b)
A judge’s certificate,<o:p></o:p>First
executed after the commencement of this Act shall be of no effect until it is
registered.’’<o:p></o:p>Then
section 36 of the Land Registry Act which is the interpretation section defines
instrument as follows:-<o:p></o:p>‘’any
writing affecting land situate in Ghana, including a Judge’s certificate and a
memorandum of deposit of title deeds.’’<o:p></o:p>The
above are the relevant legislations that regulate the first central issue
raised in this appeal. While the respondent has argued forcefully that by the
non-registration of the mortgage deed no interest was acquired by the
appellant; the appellant has argued that though the mortgage was not registered
under the Land Registry Act, it did register the mortgage as a charge under
section 107 of the Companies Act, Act 179.<o:p></o:p>&nbsp;Before I proceed further to deal with the
fundamental issues, I will like to address some ancillary issues as follows:-<o:p></o:p>1. From
the record of appeal it is clear that the mortgage deed which was exhibit A,
was executed on behalf of Athena Foods Company Ltd by the respondent herein who
was then the Managing Director. Counsel for the appellant has argued that this
court should consider the role played by the respondent in the execution of the
mortgage and apply the principles of equity to prohibit the respondent from
auctioning a property he knew had been mortgaged to the appellant. I have examined
the record of appeal and I do not see the point in the argument put up by
appellant’s counsel.<o:p></o:p>&nbsp;It is true that the respondent signed the
mortgage deed for the company but he did that as an officer of the company. The
law</main>