AYIWAH AND ANOTHER v. BADU AND OTHERS

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

This appeal is against a judgment dated the 16th May, 1961, of the High Court, Kumasi, which upheld the plaintiffs-respondents' claim for (a) cancellation of a mortgage deed dated the 28th March, 1958, made between the plaintiffs-respondents as mortgagors and the first defendant-appellant as mortgagee, on the ground of "illegality resulting from harshness relating to the rate of interest charged"; and (b) injunction to restrain the sale of the property comprised in the said mortgage deed. The judgment, however, dismissed the first defendant-appellant's counter-claim for £G1,275 the amount due for principal and interest under the said mortgage deed. The parties will be referred to shortly as plaintiffs and defendants respectively throughout the rest of this judgment.

From the pleadings the main issue which became outstanding for determination was whether the actual sum paid by the first defendant to the plaintiffs as principal money advanced was £G720, repayable with £G555 as interest thereon, as alleged by the plaintiffs, or whether the sum paid as principal money advanced was £G1,200 repayable with £G75 as interest thereon, as alleged by the first defendant. In the words of the learned judge, "the only serious issue between the parties is the amount of money lent and the interest charged."

When the action eventually came up for trial, the second plaintiff alone appeared and gave evidence in support of the claims by herself and her mother, the first plaintiff. The defendants, however, had the assistance of counsel, Mr. Victor Owusu, and on their side also the first defendant alone gave evidence. It is one of the main grievances of the defendants that as the onus was on the plaintiffs and their case depended solely on the second plaintiff's evidence, the learned trial judge should have held that it was not sufficiently proved, but he rather held it adequately proved and gave judgment granting the reliefs claimed. Before dealing with defendants' counsel's arguments on this ground, I would deal first with a new ground of appeal which was introduced just before the commencement [p.89] of the hearing of the appeal, that:

"The amendment allowing [introducing] re-opening of the loan transaction was bad in law, since the Loans Recovery Ordinance, Cap. 175 has no application to the case before the court; wherefore, all the evidence led in support of that amendment was wholly inadmissible."

The introduction of this new grou