1954
HIGH COURT
GHANA
CORAM
AI Generated Summary
This judgment by Wilson, C.J. concerns an application for an interim injunction arising from a broader suit for a perpetual injunction to restrain mortgagees from selling the applicants mortgaged properties. The mortgages, executed on 14 October 1948 and 22 March 1952 to fund cocoa purchases, were subject to a demand notice issued on 3 December 1953 calling for repayment within one month, after which the mortgagees power of sale would arise. Although the applicant made part payments reducing the balance from a31,234 18s 11d to a3581 18s 11d, the properties were advertised for sale in early May 1954. The applicant argued that negotiations and part payments waived the December notice and that a fresh notice was required, citing Graham Paul J.s reasoning in Pinnock v. Ollivant. The respondents distinguished Pinnock, emphasized the applicants status as principal debtor and his full knowledge of payments, and invoked the general rule requiring tender or payment into court to restrain sale. The court held there was no waiver, no need for a fresh notice, and refused the interim injunction with costs, noting the mortgagees forbearance did not impair their legal rights.
Order: On 24th April, 1954, the present applicant applied to the court for the issue of a writ of summons on a claim for a perpetual injunction to restrain the respondents, their agents or servants from selling certain properties of the applicant which had been mortgaged to them under two deeds of mortgage dated respectively the 14th October, 1948 and the 22nd March, 1952 to secure advances of money made to the applicant for the purchase of cocoa. The writ stated that the properties had been advertised for sale on the 4th and 8th May, 1954 and the ground of the claim was that the sale was without notice and "against the fundamental principles of equity."
The writ was made returnable on the 8th June; but on 24th April, contemporaneously with the application for the issue of the writ, the applicant had filed a further application for an interim injunction to restrain the respondents from proceeding with the advertised sales of the property pending the hearing and determination of the suit. This application was set down for hearing on 30th April, 1954, but on the application of the applicant on that date was for good cause shown adjourned to 3rd May when it was part heard before the necessity for production of further documents caused an adjournment. The arguments were concluded on 6th May, the respondents having meanwhile given an undertaking not to proceed with the sales, pending a decision on the application.
The hearing of the application for an interim injunction has blossomed by the action of the parties themselves into a full-blown argument on the merits of the claim and I do not see that there is now very much left to try on the 8th June, when the writ is returnable.
It would seem that the respondents at any rate have treated the whole proceedings as an attempt to obstruct and delay the first respondents in exercising their legal remedy under the mortgage to sell the properties and so
to liquidate the debt due to them. It has been stated in the course of the hearing that th first respondents have now wound up their business in the Gold Coast and their representative is leaving the country early in June. For that reason no doubt they at any rate were anxious to get an early decision on the merits of the claim in the writ for a perpetual injunction. What is before me at this stage however is the application for an interim injunction and I am proceeding on that basis.
The applicant's argument in brief outline was that the notice of demand dated 3rd