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March 18, 1946
HIGH COURT
GHANA
CORAM
Judgment:
The Plaintiff alleges that the 1st defendants, to whom he had, by deed, mortgaged certain premises at Koforidua as security for cash advances to one Charles Stephen Sappon to the limit of £200, served him with Notice dated the 27th July, 1938 to exercise their express power of sale given by the deed of Mortgage in respect of a sum of £23318. 2d., said to be due. A Statement of account was annexed to the notice stating how the demand of £23318. 2 d. was made up-
In acknowledging receipt of this Notice of demand and of sale in default of payment, the Plaintiff asked the 1st defendants to supply him the dates on which cash advances had been made to Sappon and he called attention to an item in the account, of £210/ - for goods supplied, for which he said he was not responsible as surety under his mortgage. He further observed, "the other items (meaning tarpaulins, scales, and bags) I presume they would be returned by Mr. Sappon to you.'
No payment having been made, the Plaintiff's property was sold by the 1st defendants on the 20th October, 1938 and J. Sarkodee Addo, whose successor is the 2 nd defendant, was declared the highest bidder and purchaser at the price of £5010/-.
In a Judgment of the Divisional Court (1) dated the 28th August, 1939 in proceedings by the 1st defendants against the Plaintiff and the principal debtor for the balance due on the covenant in the Mortgage after deducting the net proceeds of the sale, it was held (Strother Stewart J) that the Plaintiff was not liable by the terms of the Mortgage for the value of the tarpaulins, scales and bags which had been charged in the account, as they were not cash advances.
The net amount which had been charged in respect of these items was £8117/-.
Deducting therefore this amount from the claim made by the Mortgagees in July 1938 by the notice, there was in fact owing by the Plaintiff on the mortgage at the time of sale £152 1. 2d., but Sappon the Produce buyer was owing the full amount of £23318. 2d. at that time.
The present action was commenced in January 1943 and the Plaintiff claims that in law and equity he was entitled to notice of the exact amount due under the deed, and the 1st defendants' failure to give such notice constituted a breach of the principles of equity and that the sale upon a notice which specified a greater sum than was actually due by the Plaintiff as mortgagor, was wrongful and he claims damages for the wrongful sale.
Counsel for the Plaintiff has cited Pi
AI Generated Summary
The plaintiff mortgagor at Koforidua pledged his premises as security for cash advances to a produce buyer, Charles Stephen Sappon, and received a mortgagees’ notice dated 27 July 1938 demanding £23318. 2d. and warning of sale. He queried non-cash items (tarpaulins, scales, bags) and made no tender. The mortgagees sold by public auction on 20 October 1938; J. Sarkodee Addo purchased for £50 10/-, and the second defendant is his successor. A 1939 Divisional Court decision (Strother Stewart J) later held those goods were not cash advances, placing the plaintiff’s actual liability at £152 1. 2d. In 1943 the plaintiff sued, relying on Pinnock v. G. B. Ollivant, alleging the notice overstated his debt and seeking damages and to set aside the sale for fraud/collusion. Coussey, J held that, in mortgage law, disputing the amount does not restrain sale absent tender; the plaintiff neither tendered nor proved ability to redeem, and no evidence established fraud or collusion. Laches also barred relief; judgment entered for both defendants with costs.