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June 11, 1963
HIGH COURT
GHANA
CORAM
JUDGMENT OF PREMPEH J.
These proceedings were commenced by an originating summons issued at the instance of the plaintiff as head of family of Chief John Quartey's family of Otublohum.
[p.21]
The summons asked for the determination of the following questions:
(1) Whether the indenture made on the 14th February, 1945, between George Hertford Mensah Quartey the plaintiff's predecessor of the one part and Elias John Moubarak and Michael Daniel Bassil of the other part in respect of house No. D.173/2, formerly numbered S.40/6 is in substance a mortgage and not a lease.
(2) If the indenture of the 14th February, 1945, is a mortgage whether the plaintiff's family is not (a) entitled to redeem it upon payment of the principal debt and any interest payable thereon, and (b) an account of the rents and profits of the mortgaged property as from the time the defendants went into possession of the said property.
When the matter came up for consideration on the 16th November, 1962, counsel for the parties intimated that they would be prepared to submit a special stated case signed by them for argument and for the court's opinion or decision on such points of law as may be set out or disclosed in the said special stated case.
Accordingly following a consent order which I made the following special case was in due course filed:
"Special case stated for opinion of the court pursuant to Order 34, rule 1 as follows:
1. The plaintiff is the present head of the chief John Quartey family of Otublohum, Accra.
2. In 1943 the plaintiff's family was sued by Alfred Ernest Jones and Sir William Mclintock, Joint liquidators of L.C. Ltd., (formerly G.B. Ollivant & Co. Ltd.) and judgment costs for £3,457 5s. 6d. was obtained against the said family.
3. The said liquidators went into execution under the said judgment and attached for sale all the properties of the said family.
4. The said family approached the defendants to obtain money to pay off the said judgment debt and save the family's property from attachment.
5. By a deed made the 7th February, 1944, and registered in the Deeds Registry as 66/1944 the plaintiff's family demised premises then numbered as house No. S.40/6 and now numbered as D.173/2 for a term of 45 years in consideration of the sum of £3,200.
6. The said deed of 7th February, 1944, was cancelled and superseded by a deed made on the 14th February, 1945, between the same parties in which the said premises was demised to the defendants for a ter
AI Generated Summary
Prempeh J. resolved a dispute concerning the legal character of two instruments executed by the Chief John Quartey family of Otublohum, Accra, in favour of Elias John Moubarak and Michael Daniel Bassil. The family, represented by its head, faced a substantial judgment debt obtained by Alfred Ernest Jones and Sir William McLintock, joint liquidators of L.C. Ltd. (formerly G.B. Ollivant & Co. Ltd.), and to avert execution, entered deeds in 1944 and 1945 demising their High Street property for lengthy terms in exchange for lump sums. The court, proceeding on a special case under Order 34, rule 1, held the deeds were leases, not mortgages: the instruments lacked mortgage hallmarks such as a right of redemption and foreclosure, and the lump sums reflected rent paid in advance, calculable to £71 2s. per annum. Consequently, requests for redemption and an accounting did not arise. Judgment was entered for the defendants with costs of 200 guineas (including 150 guineas brief fee).