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August 18, 1969
COURT OF APPEAL
CORAM
EXTRACTS FROM JUDGMENT:
(1) Per Azu Crabbe J.A: “I think it is a matter for regret that no regulations have yet been made to govern applications for review under paragraph 7(2) of the Courts Decree, 1966 (N.L.C.D.) and applications for review have, within recent times, been considered by this court as if they were appeals from judgments of the Ordinary Bench. But in Adotei Twi II v Finga Kwashie (Civil Motion No. 26/64 dated 14 February 1964, unreported), the former Supreme Court [per Ollennu J. S.C.] stated certain guiding principles which, I think, have often been overlooked… I understand the Supreme Court to say in [that] passage that the appellate court can review its own decision only when there is an error or omission apparent in the judgment. That is to say, the error or omission must be manifest to the judges by merely looking at the judgment with judicial knowledge.
If this court was to be guided by the principle in Adotei Twi II v Finga Kwashie (supra), and there is no reason why it shouldn’t, I would have no difficulty in dismissing this application. For no one has suggested, even faintly, that there is an error or omission on the face of our judgment of 24 April 1967. The fact that there is a good ground upon which that judgment can be upset is not itself a valid ground for granting a review.”
(2) Per Azu Crabbe J.A: “I agree with my brother Archer J. that the essential features of a mortgage are (1) the existence of a debt to be secured, (2) a conveyance or other disposition of land designed to secure the payment or discharge of some other obligation, and (3) the mortgagor’s right of redemption, which cannot be irredeemable.
A person who alleges that a deed which is absolute on its face is to be taken as a mortgage must therefore prove at least (1) that there is a debt or obligation to be secured. The amount of debt must be ascertainable, and it should be one which should be enforced. It is unnecessary that the debt should be evidenced in a separate instrument, since it is sufficient if it appears from recitals in the deed: see Corpus Juris Secuundum, Volume 59, page 74, paragraph 37; (2) previous negotiations between him and other party; (3) inadequacy of consideration, though this is not conclusive .(4) that he was financially embarrassed at the time of execution of the deed; (5) that there was some accident, fraud of mistake in connection with the making of the deed. In addition to these, the party alleging that the deed is a mortga
AI Generated Summary
The Court of Appeal, per Azu Crabbe J.A, addressed the standards governing applications for review under paragraph 7(2) of the Courts Decree, 1966 (N.L.C.D.). Invoking Adotei Twi II v Finga Kwashie, he emphasized that the appellate court may review its own decision only when an error or omission is apparent on the face of the judgment and manifest to judges upon inspection. Applying that rule, the court noted no such defect in its prior judgment of 24 April 1967 and indicated the application should be dismissed, clarifying that a mere good ground to upset a judgment does not justify review. The opinion also set out mortgage doctrine, agreeing with Archer J. on essential features and detailing evidentiary factors necessary to establish that an absolute deed was intended as a mortgage, including an enforceable, ascertainable debt and other corroborating circumstances.