IDDRISU v. STANDARD BANK OF WEST AFRICA LTD. [1968] GLR 753

DIVISION: HIGH COURT, SEKONDI

DATE: 15 AUGUST 1968

BEFORE: EDUSEI J.

NATURE OF PROCEEDINGS

RULING in an application by the defendants-mortgagees for an order that the plaintiff mortgagor pays the mortgage debt into court pending the determination of an originating summons by the plaintiff mortgagor to re-open the mortgage transaction.

COUNSEL

B. Gaisie for the applicants.

Respondent unrepresented.

JUDGMENT OF EDUSEI J.

On 18 July 1968, the plaintiff by his solicitor caused an originating summons to issue from this registry directed to the defendants for the determination of the following question: “Whether or not the loan transaction covered by the mortgage deed of 21 February 1961, between the plaintiff and the defendants is harsh and unconscionable within the provisions of the Loans Recovery Ordinance, Cap. 175 (1951 Rev.).” On the same day, 18 July 1968, the plaintiff filed an ex parte application for an order “staying the sale of the plaintiff-applicant’s house at Tarkwa pending the hearing and determination of this suit.” In support of the application the plaintiff deposed among other things “that the defendants have advertised for sale tomorrow 19 July 1968, my leasehold property known as plot No. 139 Tarkwa, the subject-matter of the mortgage.” The court on the same day, 18 July 1968, granted the application staying the sale of the house. On 8 August 1968, the defendants on becoming aware of the court’s order, filed a motion praying the court for an order that the “plaintiff pays into court the amount outstanding on the mortgage pending the hearing and determination of this suit and for such further order or orders as to this honourable court may seem just.” This motion came on for hearing on 14 August 1968 and I noticed that the certificate of proof of service of the motion at the back of the court’s copy of the application had been cancelled and I therefore called the bailiff into the witness-box to explain his conduct. The bailiff, Seth Aryettey Amarh, testified that on 8 August 1968, he went to the office of the solicitor for the plaintiff and served him with the [p.755] of [1968] GLR 753 motion paper together with the supporting affidavit. Thereupon the solicitor refused to accept them on the ground that he had not seen his client for some time.

I ruled that it was improper in the circumstances for the solicitor to refuse service of the motion paper and the supporting affidavit, and I wish to emphasise, and for this to be appreciated by all practising lawyers, that once a solicitor has appended his signature to a court process he is deemed to be his client’s representative until with leave of the court he has withdrawn from the suit, or the client himself has, by filing necessary documents in court, dispensed with the services of that solicitor, or a new solicitor has been appointed in his place and the necessary documents have been filed. Without any of these steps being taken the former solicitor has no right to refuse any document relating to the suit in question, and emanating from the court. In the circumstances I concluded by ruling that the application filed by the defendants should proceed. Counsel for the defendants then moved his application praying that the amount of the mortgage deed now standing at ¢3,776.46 should be paid into court in view of the court’s previous order restraining the defendants from selling the plaintiff’s house as a result of the ex parte application of the plaintiff.

I have given serious consideration to this application and I am of the view that the application should succeed. I am fortified in my view by a passage that appears in Halsbury’s Laws of England (3rd ed.), Vol. 27, p. 301 at para. 566 which reads:

“The mortgagee will not be restrained from exercising his power of sale because the amount due is in dispute, or because the mortgagor . . . objects to the manner in which the sale is being arranged. He will be restrained, however, if the mortgagor pays the amount claimed into court.

Again a high authority has stated that “as a general rule a sale by a mortgagee will be restrained only on payment into court of the amount which the mortgagee claims to be due to him:” see Robinson’s Law of Mortgages (1897), Vol. 2 at p. 905. See also Hill v. Kirkwood (1880) 28 W.R. 385, C.A. In the case of Macleod v. Jones (1883) 24 Ch.D. 289 at pp. 299-300, C.A., Cotton L. J. said: “This is an application to restrain a mortgagee from exercising his power of sale. Now under ordinary circumstances the Court never interferes unless there is something very strong; it does not interfere on any suggested case without requiring the Plaintiff applying to pay into Court not what the Judge or the Court on hearing the evidence is satisfied will probably be [p.756] of [1968] GLR 753 the amount due, but what the mortgagee, the accounts not having been yet taken, swears is due to him on his security. And that is perfectly right, because we ought not to prevent mortgagees from exercising the powers given to them by their security without seeing that they are perfectly safe.”

My view therefore of the matter is that the mere commencement of this action by way of originating summons to determine the harshness of the loan transaction entered into in February 1961 is not a bar to the exercise of the power of sale reserved to the mortgagee in a mortgage deed. However, in view of the court’s previous order stopping the sale of the house of the plaintiff, I think it is only fair and equitable that the condition precedent to the exercise of the court’s discretion to stop a sale under a mortgage ought to have been imposed and complied with at the time the order to stop sale was made. “He who seeks equity must do equity” is a well-known maxim of equity and it was apt that it should have been the guiding principle when the court dealt with the former application. Having regard to the omnibus clause in the motion paper “and for such further order or orders as to this honourable court may seem just” as well as the court’s power under Order 52, r. 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), where an order obtained on ex parte application may be set aside, I do exercise my powers and set aside the order of this court made on 18 July 1968 and order as follows: that the plaintiff do pay into court by 31 August 1968 the sum of N¢3,776.46 now due to the defendants under the mortgage deed; it is further ordered that on payment of the said amount by the plaintiff the defendants are restrained from exercising their power of sale under the deed of mortgage dated 21 February 1968 until the final determination of the suit. It is again further ordered that on the plaintiff’s failure to comply with the order herein made as regards the payment of the sum of N¢3,776.46 into court the defendants’ right to the exercise of their power of sale under the deed of mortgage is not thereby affected.

It is also ordered that this court’s order be served on both the plaintiff and his solicitor forthwith.

Costs of this application are assessed at N¢50.00.

DECISION

Application granted.

S.K.T.