AKUNTO AND OTHERS v. FOFIE AND ANOTHER
July 17, 1972
COURT OF APPEAL
CORAM
- KOI LARBI SIRIBOE JJ. S.C. ARCHER J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Banking and Finance Law
July 17, 1972
COURT OF APPEAL
CORAM
AI Generated Summary
This Supreme Court appeal arose from a moneylending dispute involving mortgagors and licensed moneylender Opanin Kwame Akunto over two cocoa farms in Kumasi. After the High Court dismissed the mortgagors re-opening claim in 1963, Akunto instructed licensed auctioneer A. Wiafe-Akenten to sell the farms; they were auctioned to Yaw Krah, who took possession. The Court of Appeal later (Fofie v. Akunto, 4 December 1967) declared the moneylending transaction and mortgage void and ordered recovery, prompting the mortgagors to sue Akunto, the auctioneer, and the purchaser to set aside the sale and obtain an account. In 1969, the High Court found Krah bona fide yet still set aside the sale and ordered him to account. In the Supreme Court, a preliminary objection that Wiafe-Akenten and Krah had not signed the notice of appeal was upheld. The court heard only Akunto, held that section 23 of the Moneylenders Ordinance protects purchasers, not moneylenders, refused to invite the purchaser under rule 11, and dismissed the appeal.
JUDGMENT OF KOI LARBI J.S.C.
Koi Larbi J.S.C. delivered the judgment of himself and Archer J.A. In December 1961 the respondents in this appeal instituted proceedings against the appellant Opanin Kwame Akunto, a licensed moneylender for a declaration that a moneylending transaction between the parties was harsh and unconscionable and should be re-opened under the Loans Recovery Ordinance, Cap. 175 (1951 Rev.). The High Court sitting at Kumasi on 20 June 1963, dismissed the respondents' claim. They then appealed to the Court of Appeal and won the appeal on the ground that not only was the transaction harsh and unconscionable but also on the ground that the moneylender had transgressed certain provisions of the Moneylenders Ordinance, Cap. 176 (1951) Rev.), and therefore the whole moneylending transaction and the mortgage executed by the respondents were void. It was therefore held that the respondents were entitled to recover two cocoa farms which were mortgaged to secure the loan and also to cancel the mortgage deed. Before the Court of Appeal delivered its judgment in Fofie v. Akunto, Court of Appeal, 4 December 1967, unreported and unknown to the court, the appellant, who did not appear during the hearing of the appeal, had instructed a licensed auctioneer, one Wiafe-Akenten, to sell the two cocoa farms by virtue of a power of sale vested in the mortgagee. The auctioneer then sold the properties to one Yaw Krah for £G740 on 24 July 1963. The sale was never brought to the notice of the Court of Appeal.
As a result of the judgment of the Court of Appeal, the respondents sued the moneylender, the auctioneer and the purchaser at the Kumasi High Court, for an order setting aside the auction sale on account of fraud or in the alternative by virtue of the Court of Appeal decision in favour of the respondents. On 4 July 1969 the learned trial judge after hearing evidence from all the parties concluded his judgment as follows:
"The third defendant, in my judgment, is clearly a bona fide purchaser without notice of any want of title in the first defendant. That position however, cannot in the light of the determination of the Court of Appeal as to the effect of the mortgage transaction, protect his purchase and he is affected adversely by the want of validity of the transaction. In this respect it matters not that he was not a party to the previous proceedings since his title is derived from the first defendant.
The plaintiff is therefore entitled to judgment