BUCKLE v. BASSIL AND ANOTHER

JUDGMENT OF OLLENNU J.A.

The proceedings which culminated in this appeal commenced in the High Court with an originating summons which called upon the High Court to determine whether a certain deed entered by the parties and purporting to be a lease "is in substance a mortgage and not a lease, and if it is, whether the plaintiff is entitled to redeem it."

Upon the summons coming before it, the High Court made a consent order directing that a special case be stated and signed by counsel for the parties; this order was complied with and the case was accordingly stated and signed. The stated case sets out all the relevant facts. Paragraph (10) of the stated case reads:

"The questions upon which the opinion of the court is sought are:

(i) whether upon a true construction of the deeds of 7 February 1944 and 14 February 1945 the transaction between the parties was a mortgage or loan transaction and not a lease.

(ii) If the said deeds represented a mortgage transaction whether the plaintiff is entitled to redeem the mortgaged property upon payment of the principal debt and any interest due.

(iii) If the said deeds were a mortgage whether the defendants as mortgagees in possession are liable to account."

[p.240]

Put in simpler language the question which the court below was called upon to determine is, whether whatever the form of the document, the transaction between the parties is substantially a moneylending transaction.

At the trial in the High Court, counsel for the plaintiff requested the court to admit oral evidence of facts as to what took place between the parties culminating in the execution of the deeds, exhibits A and B. This application was vehemently opposed by counsel for the defence on the grounds, among other things, that all the relevant facts necessary for the determination of the issues before the court are those agreed upon by the parties and set out in the special case stated.

ow the special case stated bearing out the questions posed is 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 McLintook, joint liquidators of L.C. Ltd. (formerly G. B. Ollivant & Co., Ltd.) and judgment and costs for £3,457 5s. 6d. were 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