Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN, MILLS-ODOI AND OLLENNU JJSC
JUDGMENT OF OLLENNU JSC
Ollennu JSC delivered the judgment of the court. This is an appeal from a judgment of the High Court, holden at Sunyani, given in favour of the respondent, hereinafter called the plaintiff, for a declaration of title to, and recovery of possession of two farms, and for damages for trespass to the said farms.
Each of the parties, the plaintiff and the appellant, hereinafter called the defendant, claimed to have purchased two farms at a sale at a public auction conducted under a mortgage; the plaintiff claimed to have made his purchase on 28 September 1953, at a sale at a public auction made under the authority of a deed of mortgage dated 16 May 1952, while the defendant claimed that he made his purchase on 19 May 1953, at a sale at a public auction conducted in exercise of powers of sale contained in a deed of mortgage executed on 30 June 1952. The basis of the judgment of the High Court is that the deed of mortgage under which the plaintiff purchased the properties is prior in time to the deed of mortgage under which the defendant purchased, and that the mortgagor in the one instance is the same person as the mortgagor in the other case, and that the said mortgagor is one Kwabena Mensah.
Counsel for the defendant conceded that the principle of law as to the priorities between two mortgages was correctly stated by the learned judge of the High Court. He however submitted that the principle was wrongly applied in this case because the facts which should support its application are non-existent.
For the principle of priorities among persons claiming under two different mortgages to apply, three conditions must be proved to exist, namely: (i) each of the two mortgages is a legal mortgage, (ii) the subject-matter of the two mortgages is the same, and (iii) the mortgagor in the two cases is one and the same person. All these are questions of fact, and a party who claims by right of priority between two mortgages cannot succeed unless he proves each and every one of those three facts. If he fails to prove any one of them, his claim must fail.
Neither the original deed of mortgage relied upon by the plaintiff in this case as his root of title, nor a copy thereof, was produced by the plaintiff. The plaintiff alleged that the said deed was retained by the auctioneer as it covered some other properties bought by other people, that the auctioneer had died, and he, the plaintiff, could not in the circumstances obtain the deed. All the evidence the plaintiff adduced in support of his allegation that his vendor had a legal mortgage is a short statement which appears on copy of account sale he alleged was given to him by the auctioneer. The statement is:
“Account sale of property sold by Auction at NTOTROSO in the District of GOASO in the Gold Coast Colony, on the 28TH DAY OF SEPTEMBER 1953 under Deed of Mortgage dated the 16TH DAY OF MAY, 1952 between KWABENA ANANE (Mortgagee) of Kenyase II and KWABENA MENSAH (Mortgagor) of Ntotroso KWABENA KUSI Guarantor of Ntotroso.”
The phrase “deed of mortgage” used in this quotation may mean anything; legal mortgage, equitable mortgage or even pledge under customary law evidenced by a deed which is often loosely referred to as mortgage. To hold that the phrase as used in the passage means a legal rather than equitable mortgage or even a document evidencing pledge under customary law, is to make assumptions which have no foundation in facts.
In the circumstances the High Court was wrong in holding that the plaintiff ‘s vendor held a mortgage on the farms in dispute which was prior in date to that held by the defendant’s vendor.
On the question of the identity of the farms which are the subject-matter of the alleged mortgage under which the plaintiff bought, this action with the subject-matter of the defendant’s vendor’s mortgage, the defendant in paragraph 3 of his statement of defence, gave full particulars of the farms covered by the deed of mortgage he relied upon. Ex facie the descriptions of the farms as given in the said paragraph 3 of the statement of defence, and contained in his deed of mortgage exhibit 1, are quite different from those described by the plaintiff in his writ of summons and repeated in his statement of claim. Appreciating the big difference in the two sets of descriptions, the plaintiff pleaded in his reply to the statement of defence that the two sets of farms are identical despite the differences in the descriptions. He however led no evidence to prove in what way those farms are identical. In short he failed to establish that the subject-matter of the two mortgages are identical. On that ground also, his claim should have been dismissed.
As to the identity of the mortgagors in the two cases, the learned trial judge held that it was one and the same person who executed the two mortgages, and that that person is one Kwabena Mensah. This positive finding made by the High Court shows that the learned judge did not examine, or at any rate did not carefully examine the deed of mortgage, exhibit 1 tendered in evidence by the defendant. If he had, he would have discovered that the mortgagor to the defendant’s vendor was one Kwabena Kusi, quite a different person from Kwabena Mensah the mortgagor to the plaintiff’s vendor. Therefore on this third fact also the plaintiff failed. His failure on this point as on any of the other two, is fatal to his case.
It is clear that if the learned judge of the High Court had properly directed himself on the issues of fact involved in the case, and had made findings upon them warranted by the evidence before him, he would have been compelled to the conclusion that a stage was not reached in the case where the legal issue of priority need be considered. The judgment of the High Court is therefore unsupportable, and must be set aside.
The appeal is allowed, the judgment of the High Court is set aside, the plaintiff’s claim is dismissed, and judgment entered thereon for the defendant with costs in the court below fixed at £G77 17s. The defendant will have his costs in this court fixed at £G55 11s. 6d.
DECISION
Appeal allowed
N.A.Y.
