DAPAA AND ANOTHER v. WAYE [1966] GLR 1
10 January 1966 · AZU CRABBE JSC · ≈ 3 min read
[1966] SLR (SC) 23Other citation styles and permanent link
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Division: SUPREME COURT
Date: 10 JANUARY 1966
Before: AZU CRABBE, APALOO AND BRUCE-LYLE JJ.S.C.
CASE REFERRED TO
Ayiwah v. Badu [1963] 1 G.L.R. 86, S.C.
NATURE OF PROCEEDINGS
APPEAL from a decision of H.P.L. Bannerman J. in the High Court, Kumasi, on 30 November 1962 (unreported), in which he gave judgment for part of the plaintiff’s claim. The facts are fully set out in the judgment of Azu Crabbe J.S.C.
COUNSEL
J. H. Cobbina for the appellants.
No appearance by or on behalf of the respondent.
JUDGMENT OF AZU CRABBE J.S.C.
The action in this case arose out of a money-lending transaction between the parties. The case for the plaintiff was that he lent the defendants £G2,300, with a further £G700 without interest, making a total of £G3,000 with £G12 incidental expenses. The defendants challenged these facts and alleged that they borrowed at first £G1,000 and later £G700, and that the plaintiff charged 100 per cent interest in each case, making a total of £G3,600 plus incidental expenses of £G12 less £G600 which they had refunded. The plaintiff’s case was based on a document which was tendered in evidence and marked exhibit A. The learned trial judge found as a fact that the plaintiff’s evidence did not disclose the true nature of the transaction between the parties. He accepted the defendant’s evidence and was satisfied that the defendant’s version of the transaction was the true one. One of the issues agreed upon the trial was whether the mortgage deed which the plaintiff was seeking to enforce was void and unenforceable and the plaintiff was therefore not entitled to any portion of his claim in the action. In my view, the true effect of the learned judge’s findings is that the transaction contravened section 26 (1) of the Moneylenders Ordinance.1 Under section 26 (2) this transaction was void and unenforceable. Nowhere in his judgment did the learned trial judge direct his attention to the various provisions of the Ordinance. With all due respect to the learned trial judge, I think he erred in giving judgment for the plaintiff. In my view, he should have declared the transaction void and unenforceable. I would, therefore, allow the appeal and set aside the judgment given by the learned trial judge.
[p.3] of [1966] GLR 1
JUDGMENT OF APALOO J.S.C.
I entirely agree. On the learned judge’s finding, the document, exhibit A, did not disclose the true transaction between the parties and this fact was known to the plaintiff. Yet he tried to lead evidence to correspond with the contents of that document. On the learned judge’s finding, that evidence was consciously false. Accordingly, the plaintiff sinned against section 26 (1) of the Money-lenders Ordinance and the transaction was thereby avoided by subsection (2) of section 26 of that Ordinance. In those circumstances, in my opinion, the learned judge should have declared the transaction void and unenforceable. The view accords with the decision of this court in Ayiwah v. Badu.2 For these reasons, I also agree that this appeal be allowed.
JUDGMENT OF BRUCE-LYLE J.S.C.
I also agree.
DECISION
Appeal allowed.
