GWIRA v. STATE INSURANCE CORPORATION
1991
SUPREME COURT
GHANA
CORAM
- AIKINS
- EDWARD WIREDU JJ.S.C.
- ESSIEM J.A.
- OSEI-HWERE
- AMUA-SEKYI
Areas of Law
- Property and Real Estate Law
- Civil Procedure
- Commercial Law
- Equity and Trusts
1991
SUPREME COURT
GHANA
CORAM
AI Generated Summary
In 1965, the plaintiff borrowed £10,000 from the State Insurance Corporation, securing the loan with title deeds. Upon failing to repay, the corporation sued for foreclosure and sale. The plaintiff's counsel submitted to judgment without the plaintiff's consent. Subsequent foreclosure and sale were contested by the plaintiff as unauthorized and irregular. Both High Court and Court of Appeal upheld the foreclosure, prompting the plaintiff to appeal. The Supreme Court dismissed the appeal, validating counsel’s submission to judgment and the dual remedies of foreclosure and sale, while dissenting opinions highlighted procedural missteps rendering foreclosure and sale void.
JUDGMENT OF AMUA-SEKYI J.S.C.
In 1965 the plaintiff, a lawyer and a diplomat, borrowed the large sum of £10,000 from the State Insurance Corporation for the purpose of erecting a dwelling-house on a plot of land at East Cantonments, Accra. As security for the due repayment of [p.402] the loan the plaintiff deposited his title deeds with the corporation. He failed to honour his promise, and in 1971 the corporation took him to court. His answer, it seems, was that he had not the means with which to pay back the loan. This sounded rather hollow as the building had been completed and rented out to a reputable company.
Both the plaintiff and his counsel, the late Amoo-Lamptey, must have realised that there was no way the corporation could be denied relief. The record shows that when the case was called before Aboagye J. the plaintiff through his counsel submitted to judgment. On their writ the corporation had asked for foreclosure or sale. The court granted both, leaving them to choose whichever they found the most efficacious. The corporation had the premises sold by public auction.
A year later, the plaintiff issued the present writ asking that the sale be set aside. His main grounds of complaint were that Amoo-Lamptey submitted to judgment without his knowledge or consent and that the court ought to have made an order nisi and given him the usual six months within which to find the money. Apaloo C.J. sitting as an additional judge of the High Court, who tried the suit, examined those grounds at length and dismissed them both. On appeal to the Court of Appeal, the plaintiff shifted his ground and argued that the remedy of sale was not available to an equitable mortgagee. Again, he failed to persuade the court and his appeal was dismissed. He now appeals to this court.
The submission that the remedy of an equitable mortgagee is foreclosure, and not sale, implies that there was jurisdiction in the court to grant the remedy of foreclosure. If that is so then the order of foreclosure, right or wrong, is binding on the parties as there was no appeal from the judgment. It follows that even if this court finds that the order for sale was made without jurisdiction and sets it aside this would avail the plaintiff nothing; the order of foreclosure would prevent him from recovering the property. However, the contention having been made, it is desirable that it be examined to see if it is sound.
The cases relied on are James v. James (1773,) 42 L.J.Ch. 386 and Bac