HIGH COURT, SUNYANI
DATE: 29TH JUNE, 1962
BEFORE: BRUCE-LYLE, J.
CASES REFERRED
(1) Establishment Maurel et Prom v. The Legal Adviser of the Gambia and Others (1938) 4 W.A.C.A. 47
(2) Kwasi Akyeampong v. Kwaku Atakora (1952) 14 W.A.C.A. 4
NATURE OF PROCEEDINGS
ACTION for possession of land bought at a public auction.
COUNSEL
P. D. Anin for the plaintiff.
O. Amankwatia for the defendant.
JUDGMENT OF BRUCE-LYLE J.
In this case the plaintiff’s claim against defendant is for:
(a) an order of possession of house No. SNT. 48 commonly known as Palm Hotel, and situate lying and being at New Town, Sunyani, and bounded by the properties of Opanin Kwame Amponsah, A. O. Buahin and Opanin Kwabena Amponsah, and by the Kumasi-Berekum road;
(b) £G500 damages for trespass, limited to mesne profits, from October 1959 until delivery of possession.
The plaintiff’s case is that the defendant borrowed an amount of £G 1,400 as principal and £G100 interest from one Yaw Kwayie, P.W.2, and that in respect of this debt the defendant executed a deed of mortgage No. 166/58 dated the 18th January, 1958, in favour of Kwayie. By this
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deed of mortgage the defendant demised to the said Kwayie his fee simple interest in house No. SNT. 48 in Sunyani, known as the Palm Hotel (and hereinafter referred to as the Palm Hotel). The defendant failed to repay this loan and after several notices of demand sent to the defendant, the Palm Hotel was sold at a public auction on the 19th October, 1959, and the plaintiff bought same for £G2,000. The plaintiff tendered his receipts and the certificate of purchase issued by the auctioneer, one Ernest Kwabena Atiemo P.W.4, to confirm his purchase. The plaintiff said since the purchase of this property the defendant has refused to give up possession, hence this action for possession.
The defendant in his amended statement of defence averred that:
(a) the sale was unlawful as the vendor in this case Yaw Kwayie, has no legal title in the property to transfer to the purchaser;
(b) that the mortgage transaction is not valid because the Urban Council of Sunyani did not consent to or concur in the mortgage of a leasehold property;
(c) that as the vendor Kwayie was not registered with the Urban Council as an assignee, the vendor cannot claim any vested title in the property, and therefore could not transfer any title to the plaintiff;
(d) that the sale itself was irregular.
The defendant also counterclaimed for general and special damages totalling £G2,000.
The defendant gave evidence and did not deny borrowing the amount of £G1,400 plus interest of £G100 from Yaw Kwayie and also executing the deed of mortgage, exhibit E in favour of Yaw Kwayie. He also admitted swearing to an affidavit dated the 14th February, 1958, exhibit F in support of the mortgage deed, in which he deposed that the property, mentioned in the mortgage deed was his bona-fide property. The defendant in his evidence did not prove his allegation in the statement of defence that the sale was irregular and his counsel in his submissions to the court did not seem to attach any importance to that line of defence.
The issues in this case were therefore narrowed down to the validity of the mortgage deed upon which the property was sold. It was the contention of counsel for the defendant that the deed is invalid and therefore the subsequent sale cannot be said to be valid to give any title to the plaintiff. In support of the contention that the vendor had no legal title in the said property to transfer to the purchaser, in this case the plaintiff, counsel for the defendant referred this court to exhibit D a leasehold agreement dated the 1st April, 1950, between the stool of Sunyani as the lessor and the defendant as the lessee, and pointed out that once the defendant’s interest in the property is leasehold he had no right to convey a fee simple as stated in the deed of mortgage, and as the recital in the deed is not in fact correct the mortgage cannot be said to be valid as it tends to convey an interest which is not the interest of the mortgagor. On the strength of exhibit D the leasehold agreement, I agree with counsel that at the time when the defendant executed the deed of mortgage his interest in the property was of a leasehold nature, but the defendant knew of this interest and yet executed a deed of mortgage in which he mentioned his interest as fee simple. I do not see how the defendant can now derogate from his own grant and also take advantage of his own fraud. I find that this line of argument cannot avail the defendant as in
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law Yaw Kwayie by the deed of mortgage has every right to sell the property, and the purchaser buys not necessarily the interest mentioned in the deed of mortgage but buys subject to whatever lawful interest there is in existence, being in this case, the interest of the mortgagor, the defendant. The plaintiff therefore bought this property subject to the interest of the Sunyani stool and cannot rely on the interest mentioned in the mortgage deed as against the Sunyani stool. For these reasons the defence in (a) supra must fail.
The defence in (b) supra is that absence of consent or concurrence by the urban council to the mortgage rendered the mortgage deed invalid. Counsel relied on section 75 of the Local Government Ordinance.1(1) This Ordinance was repealed by the Ashanti Stool Lands Act of 1958,2(2) on the 9th September, 1958. The deed of mortgage exhibit E was executed on the 18th January, 1958, and therefore at the time of its execution the Local Government Ordinance was in operation.3(3) Section 75 of the Local Government Ordinance reads:
“75. (1) Any disposal of any interest or right in land which involves the payment of any valuable consideration or which could, by reason of its being to a person not entitled by customary law to the free use of land, involve the payment of any such consideration, which is made—
(a) by a stool; or
(b) by any person who, by reason of his being so entitled under customary law, has acquired possession of such land either without payment of any consideration or in exchange for a nominal consideration; shall be subject to the concurrence of the Council, as the case may be, for the area concerned, and shall be of no effect unless and until such concurrence has been obtained and certified in writing under the hand of the chairman or clerk of the council.”
The words “or which could, by reason of its being to a person not entitled by customary law to the free use of land . . .” coupled with subsection (b) show clearly that this section is not applicable to the disposal of any interest in land from a subject of the stool to another subject of the same stool in respect of land belonging to such stool. The defendant did not plead in his statement of defence that Yaw Kwayie, the mortgagee in this case is not a subject of the stool of Sunyani. Kwayie in his evidence under cross-examination said: “ . . . I am not aware that such mortgage transaction between subjects is subject to an interest of the stool.” This piece of evidence shows clearly that the defendant as mortgagor and Yaw Kwayie as mortgagee were all subjects of the stool of Sunyani and therefore section 75 of the Local Government Ordinance was not applicable to their mortgage.
Counsel again relied on section 24 (1) of the State Councils (Ashanti) Ordinance4(4) which reads: “24. (1) It shall not be lawful, without the consent of the State Council concerned, to alienate or pledge any Stool property, and any instrument, and any transaction or agreement (whether in writing or not), which purports to effect any such alienation or pledge shall, in the absence of such consent, for all purposes be null and void.”
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I am of the opinion that this is not applicable to the mortgage of stool land held by a subject to another subject. Reading the sections under that Part V and headed “Protection of Stool Property” one cannot help coming to the conclusion that the sections relate to stool property, like stool paraphernalia and the like, as distinct from stool lands held by subjects and section 24 was intended to protect such stool paraphernalia from being sold, pledged or alienated by stool occupants or by those customarily entitled to be in possession.
Counsel for the defendant did not in anyway try to substantiate his defence in (c) supra that once the vendor was not registered in the urban council records as an assignee of the said property the vendor could not claim any right or interest in the property to entitle him to transfer any interest to the purchaser. The defendant did not lead any evidence to support this contention, neither did he cite any legal authority for the proposition. In the absence of any statutory provision or decided authority for such a contention I do not think it is worth any consideration.
Counsel for the defendant, however, submitted that the mortgage deed was in English form and therefore was subject to the English law relating to mortgages; that though the parties are natives they intended their transaction to be governed by English law. On this premise counsel argued strongly that there is in the leasehold agreement exhibit D a stipulation that the lessee was not “to assign, sub-let or mortgage . . . without the consent of the landlord”; that there is no evidence that the defendant mortgaged this property with the consent of his landlord, in this case the Sunyanihene, and therefore the mortgage is void ab initio and therefore the plaintiff bought nothing. Counsel relied upon the Gambia case of Establishment Maurel et Proni v. The Legal Adviser of the Gambia5(5) where Cootes Law of Mortgage, Vol. 1 at page 170 was quoted verbatim as follows: “Where a lease
contains a covenant not to assign or sub-let without licence, no mortgage either by assignment or demise, will be valid unless the licence is obtained.” This proposition of the English law will be applicable if the land, the subject-matter of the lease is held under the English land tenure. In this case the land which is the subject-matter of the lease is subject to customary land tenure, that being the personal law of the parties and their interests cannot be regulated by any other law; section 66, rule 1 of the Courts Act, 1960,6(6) applies.7(7) What is the personal law of the parties in this case? It is the established customary law that the subject of a stool has a usufructuary interest in any stool land in his possession and can alienate such an interest to another subject without the consent of the stool. The defendant in this case being a subject of the Sunyani stool is entitled to a usufructuary interest in stool land given to him by the stool and the stool cannot by such a stipulation as contained in the lease exhibit D, limit the subject’s customary right of alienation to another subject. The stipulation which therefore called for the consent of the Sunyanihene to a mortgage by the defendant, a subject, to Yaw Kwayie, another subject, is to my mind of no effect as being contrary to the customary law and therefore contrary to public policy. This being the case, Coote’s pronouncement of the English law relating to mortgages as quoted supra and relied upon by counsel for the defendant, is not applicable to this case. For the above reasons I find that the mortgage exhibit E stands to all intents and purposes a valid document.
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As mentioned earlier, the defendant did not lead any evidence to support the defence that the sale was irregular and therefore not valid. The only attempt by the defendant to establish this line was in cross-examination of the auctioneer Atiemo, P.W.4, to the effect that Atiemo never sent any account of the sale or the balance due to the defendant. Atiemo gave his explanation and I do not consider this an irregularity. which can invalidate the sale. Even if it is an irregularity or even if there are other irregularities the defendant cannot take advantage of them as he himself admitted under cross-examination that he did not have the means to pay the debt. This finding is supported by the case of Kwasi Akyeampong v. Kwaku Attakora.8(8)
The mortgage deed exhibit E and the sale under that mortgage being valid I find that the plaintiff is entitled to possession and the defendant should fail on his counterclaim.
On the claim for mesne profits by the plaintiff there is the evidence of the receiver and manager appointed by this court P.W.5, that for fourteen months rents in respect of the Palm Hotel were £G254 10s. The plaintiff is claiming mesne profits of rents for 32 months. For 32 months on the basis of rents collected by the receiver and manager, the plaintiff should be entitled to more than the £G500 which he claims.
I therefore give judgment for the plaintiff on his claim for possession and hereby order that the defendant should give up possession of the Palm Hotel, house No. SNT. 48 Sunyani forthwith. I also award to the plaintiff the sum of £G500 being mesne profits. The defendant’s counterclaim is hereby dismissed. Costs for the plaintiff fixed at £G89 2s. 6d., inclusive of counsel’s costs of 60 guineas. I further discharge the interim injunction order of this court.
DECISION
Judgment for the plaintiff.
