AWUME v. DONYA
[HIGH COURT, HO]
DATE: 15TH MAY, 1962
COUNSEL
E.D. Kom for the plaintiff-appellant.
G.S. Lassey for the defendant-respondent.
JUDGMENT OF PREMPEH J.
This is an appeal from the decision of the Kpandu Local Court Division “1” given on the 9th June,
1961, in favour of the defendant-respondent herein.
By his amended claim, the plaintiff-appellant claimed against the respondent an order upon the
respondent to show cause why he had refused to allow the respondent to redeem his property
commonly called Anokpete land, which he pledged to the respondent for the sum of £G60, which sum
he had tendered for the redemption of the land and which the respondent had refused to accept.
The short facts of the case are that by a document dated the 3rd June, 1954, the appellant obtained a
loan of £G60 from the respondent which he promised to repay on the 31st December, 1954, and by
way of security therefor, the appellant pledged to the respondent a portion of land known as the
Anokpete land. It was a term of the said transaction that if the appellant failed to repay the amount at
the fixed date, the respondent was at liberty to take possession of the said land without a court order,
and to vest title thereof in himself.
[p.359] of [1962] 1 GLR 357
No evidence was led by the parties in the trial court, but in an affidavit sworn to by the appellant
which is part of the proceedings herein, he stated that he tendered some payment to the respondent for
the redemption of the land but he refused to accept it, and he consequently took possession of the
land.
Sometime during the year 1961, one Dorothea Yawa Awume brought an action against both the
appellant and the respondent herein in the Kpandu Local Court Division “1” in which she claimed that
the Anokpete land was family property which the appellant herein had wrongfully pledged to the
respondent herein. The appellant who was the first defendant in the action pleaded liable, but the
respondent who was therein the second defendant contested the claim. After hearing the parties in that
action the local court magistrate made the following finding of fact:
“From the evidence on record there is not the least doubt that first defendant is the bona fide owner of
the land in question and that first defendant entered into agreement with second defendant for the loan by
second defendant with the full knowledge and consent of members of plaintiff’s and first defendant’s
family.
I am satisfied that the first defendant was the bona fide owner of the land in question and that by the
agreement which was mutually concluded between first defendant and second defendant ownership of
the land has been legally transferred to the second defendant who is now to be recognised as the bona
fide owner of the land in question.”
After making this finding, the trial court then dismissed the claim of Dorothea Yawa Awume and
entered judgment for the second defendant, i.e. the respondent herein.
When the present case came up for hearing, the respondent moved the trial court for an order to
dismiss the appellant’s claim on the ground that the matter was res judicata, and in support of this plea
he relied solely upon their judgment already referred to in the case Dorothea Yawa Awume versus the
appellant and himself, the respondent.
As I have already indicated, the trial court did not hear evidence, but decided this case upon the
affidavits filed by the parties and upon the loan document and the judgment already referred to. The
said loan document and the said judgment were not made part of the appeal record as they ought to
have been, but when the appeal came on for hearing, they were admitted by consent. The document
was marked exhibit 1 and the proceedings and judgment of the case referred to marked exhibit 2.
One of the main grounds of appeal argued in this court is that the magistrate erred in law in holding
that the subject-matter of the suit was res judicata. Now there is no doubt that the document exhibit 1
evidences nothing more than an equitable mortgage by the appellant of his real property to the
respondent.
In Fisher’s Law of Mortgages (5th ed.) para. 24, the following passage appears:
“An equitable mortgage is a contract operating as a security, but which, for want of a transfer of the legal
estate, can only be enforced under the equitable jurisdiction of the Court, which carries it into effect
either by giving the creditor immediately the appropriate remedies, or by compelling the debtor to
execute a Security in accordance with the contract.”
[p.360] of [1962] 1 GLR 357
In the case of Kwaku Adu Sei and Kwaku Ansah v. Johnson Ofori1(1) the first plaintiff executed a
document promising repayment of a loan on the security of his land, and authorising the defendant, in
default of repayment, to have the property disposed of by public auction. The loan was not repaid
when due, and the defendant by his auctioneer, entered upon the land and had the property sold by
auction. It was held that the document was an equitable mortgage, but that as the defendant had not
applied for and obtained an order of the court, the sale was invalid.
It is clear that the basis for that judgement is that in an equitable mortgage of real property the
mortgagee cannot sell without the intervention of the court, because the legal title is not in him, and
on the same basis it is my view that although it is inserted in the document exhibit 1 that in default of
payment the lender should take possession of the property for himself, he cannot do so without an
order of the court. It seems to me also that in these circumstances until a court order had been made to
the contrary as between the appellant and the respondent, the appellant reserved the right to redeem
his property.
I must now consider what effect the judgment in exhibit 2 could have upon the appellant’s right to
redeem the property. It is true that in that case the appellant pleaded liable to the claim, but that court
did not hold that the land was family property; it found as a fact that it was the bona fide property of
the appellant which he had pledged to the respondent as security for the loan. But having so found it
is my view that the trial court erred in holding that the respondent had become the owner of that
property, because as a matter of law, in the case to which I have already referred, notwithstanding the
insertion in exhibit 1 (which was to a legal mortgage) that the respondent could take property for
himself without a court order, he could not in law become the owner of that property as such.
Having pleaded liable in that case, the appellant could not appeal against the decision in exhibit 2, and
although I do not consider his conduct satisfactory in pleading liable in that case when he knew that
the property was his, it is my view that since that decision was bad in law, it cannot be permitted in
this court to operate to estop the appellant from exercising his right of redemption of that property
under the loan agreement exhibit 1.
For the above reasons I must allow this appeal and set aside the decisions of the trial court and I do
enter judgment for the plaintiff-appellant as follows: Judgment is entered for the plaintiff-appellant on his claim. The plaintiff-appellant shall within fourteen days repay to the respondent the sum of £G60
plus five per cent. interest thereon computed from the 1st January, 1955, up to this date, and the
respondent shall then forthwith surrender to the plaintiff-appellant the possession of the said land. In
all the circumstances I award the appellant fifteen guineas costs in this court. The parties shall bear
their own costs in the trial court.
DECISION
Appeal allowed.
