ASARE v. BROBBEY AND OTHERS
1971
COURT OF APPEAL
CORAM
- SIRIBOE J.S.C.
- SOWAH
- ARCHER JJ.A
Areas of Law
- Property and Real Estate Law
- Civil Procedure
- Contract Law
- Banking and Finance Law
1971
COURT OF APPEAL
CORAM
AI Generated Summary
Archer J.A., delivering the Court of Appeal’s judgment, set aside a Kumasi High Court decision that upheld an auction sale of a mortgaged leasehold house. The appellant had borrowed £G800 from the first respondent, a moneylender, secured by a mortgage. After default, the moneylender instructed the second respondent, an auctioneer, to sell; the third respondent purchased at auction. At trial, although the judge found no notice of sale had been given, he refused to consider the appellant’s address-stage argument that the mortgage was unregistered under the Land Registry Act, 1962 (Act 122), and held the purchaser protected by a deed clause. On appeal, the court held that failure to give notice renders the sale a nullity and, independently, Act 122 s.24(1) makes unregistered instruments affecting land of no effect until registered; thus the power of sale was ineffective, the purchaser was not protected by clause or statute, and the appeal was allowed.
JUDGMENT OF ARCHER J.A.
Archer J.A. delivered the judgment of the court. The appellant obtained a loan of £G800 from the first respondent, a moneylender, and as security for the loan, he executed a deed of mortgage encumbrancing his house, a leasehold at Kumasi. Under the terms of the deed of mortgage, the appellant covenanted to repay the loan within twelve months but as he was unable to repay the whole amount within the stipulated period, the first respondent instructed the second respondent, an auctioneer, to sell the mortgaged property relying on a power of sale conferred on him by the mortgage deed. There was subsequently a public auction conducted by the second respondent and at that auction, the third respondent, as the highest bidder, bought the house, the subject-matter of the mortgage.
Thereafter, the appellant took out a writ of summons claiming a declaration that notwithstanding the sale, he was still the owner of the house. The grounds for the declaration sought were contained in the statement of claim which need not be repeated verbatim in this judgment. The three main grounds were that as the first respondent had accepted part-payment after the due date for the repayment of the whole loan he had waived his rights under the mortgage and was estopped from exercising his power of sale. The second ground was that no notice, as required by the terms of the mortgage, was given to the appellant before the sale. The third ground was that, in any case, the mortgage deed did not expressly confer a power of sale on the first respondent.
The case was therefore fought in the High Court at Kumasi on these grounds by the appellant and the three respondents. But it appears from the record that after learned counsels for the respondents had addressed the court on 7 February 1969, the hearing was adjourned to the 12 February for address by the learned counsel for the appellant. On the latter day, learned counsels for the respondents were absent, but learned counsel for the appellant proceeded to address the court and for the first time in the proceedings submitted to the court that as the mortgage deed was not registered under section 24 of the Land Registry Act, 1962 (Act 122), the power of sale was illegally exercised.
[p.334]
In his judgment, the learned trial judge considered the submission by the appellant's learned counsel as to non-registration of the mortgage deed but held that this submission should have been specifically pleaded and therefore