AGRICULTURAL DEVELPOMENT BANK vs. FIIFFI QUARTEY [2016]DLHC3578

Date	2016-02-04
Suit No.	SUIT NO.BFS/205/2015
Citation No.	[2016]DLHC3578

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2016]DLHC3578
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">AGRICULTURAL DEVELPOMENT BANK<o:p></o:p></a>vs.<o:p></o:p>FIIFFI QUARTEY<o:p></o:p>&nbsp;[HIGH COURT
(COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO.BFS/205/2015&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 4TH FEBRUARY, 2016<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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HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div>The Plaintiff/Applicant by this Ex parte application
seems to root this motion under Order 10 Rule (1) of the High Court (Civil
Procedure) Rules, C.I 47 and seeks final judgment against the defendant for his
failure to enter appearance and file a defence upon service of the writ of
summons and the statement of claim. When the application came on for hearing
the court indicated to the counsel for the applicant that the present applicant
was incompetent as not mandated by the rules of procedure. Counsel nonetheless,
contested this claim and the court adjourned to give a reasoned ruling for
describing the application as defective. The reasons of the court is provided
as follows:<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff claims for a liquidated sum being loans
advanced to the defendant that Plaintiff contends defendant has defaulted in
repayment. This should ordinarily bring it within the scope of order 10 Rule 1
(1) of C. I. 47 which states as follows:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “Where the
plaintiff’s claim against the defendant is for a liquidated demand only, and
the defendant fails to file appearance, the plaintiff may, after the time
limited for appearance only to enter final judgment against the defendant for a
sum not exceeding that claimed by the writ and for costs and proceed with the
action against other defendants, if any”<o:p></o:p>At first glance, one would be tempted to conclude that
the present action has justly and truly been mounted in pursuance of this rule
quoted supra. But this suit is not just an action for recovery of monies due
and owed. It is a mortgage action and mortgage actions have their own special
rules and procedure that an applicant must follow when seeking a judgment in
default of appearance. Counsel denied that his action is a mortgage action.
What then is a mortgage action becomes crucial for determination in knowing if
the present suit is one or not. Section 1 of the Mortgages Act, NRCD 96 defines
what a mortgage is in law as follows:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “A mortgage …
is a contract charging immovable property as security for the due repayment of
debt and any interest accruing thereon or for the performance of some other
obligation for which it is given, in accordance with the terms of the contract”<o:p></o:p>And Black’s Law Dictionary, 9th Ed defines
Mortgage as a:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “lien against
property that is granted to secure an obligation such as a debt and that is
extinguished upon payment or performance according to stipulated terms”<o:p></o:p>And section 2 of the Mortgages Act notes that every
transaction which is in substance a mortgage of immovable property whether
expressed as mortgage, charge, pledge of title documents, outright conveyance,
trust for sale on condition, lease, hire purchase, conditional sale, sale with
right of repurchase or in any other manner, shall be deemed to be a mortgage of
immovable property.<o:p></o:p><o:p>&nbsp;</o:p>The last relief of plaintiff is for an order for the
judicial sale of residential property located at Sakumono, Tema in the Greater
Accra Region. And how did plaintiff become vested with the cause to ask for a
judicial sale of an immovable residential property? This can be found by
paragraph 6 of the averment of plaintiff in his statement of claim wherein he
states that:<o:p></o:p><o:p>&nbsp;</o:p>“Plaintiff
claims that as security for the loans, Defendant executed a deed of mortgage in
favour of plaintiff over residential property situate at Sakumono estates” <o:p></o:p><o:p>&nbsp;</o:p>This clearly from plaintiff’s own case before the
court is that he gave out loans and as security for the loans, there was a
charge of immovable property at Sakumono. He describes it as a mortgage and even
</main>