IDDRISU v. STANDARD BANK OF WEST AFRICA LTD.
August 15, 1968
HIGH COURT
GHANA
CORAM
- EDUSEI J
Areas of Law
- Property and Real Estate Law
- Equity and Trusts
- Civil Procedure
- Banking and Finance Law
- Contract Law
August 15, 1968
HIGH COURT
GHANA
CORAM
AI Generated Summary
EDUSEI J adjudicated a dispute concerning a 1961 mortgage loan between the plaintiff and the defendants. On 18 July 1968, the plaintiff initiated an originating summons seeking a determination under the Loans Recovery Ordinance whether the loan was harsh and unconscionable and obtained an ex parte order staying the sale of his leasehold property, plot No. 139, Tarkwa. After learning of the stay, the defendants moved to require payment into court of the outstanding mortgage amount and sought further orders. The court held the plaintiff’s solicitor’s refusal of service improper, and, guided by Halsbury’s Laws of England and Macleod v. Jones, emphasized that restraint of a mortgagee’s sale is generally conditional on payment into court. Exercising powers under Order 52, r. 3, the judge set aside the earlier ex parte order and directed the plaintiff to pay N¢3,776.46 by 31 August 1968, restraining sale upon payment, with costs of N¢50. The application was granted.
JUDGMENT OF EDUSEI J.
On 18 July 1968, the plaintiff by his solicitor caused an originating summons to issue from this registry directed to the defendants for the determination of the following question: "Whether or not the loan transaction covered by the mortgage deed of 21 February 1961, between the plaintiff and the defendants is harsh and unconscionable within the provisions of the Loans Recovery Ordinance, Cap. 175 (1951 Rev.)."
On the same day, 18 July 1968, the plaintiff filed an ex parte application for an order “staying the sale of the plaintiff-applicant's house at Tarkwa pending the hearing and determination of this suit." In support of the application the plaintiff deposed among other things "that the defendants have advertised for sale tomorrow 19 July 1968, my leasehold property known as plot No. 139 Tarkwa, the subject-matter of the mortgage." The court on the same day, 18 July 1968, granted the application staying the sale of the house.
On 8 August 1968, the defendants on becoming aware of the court's order, filed a motion praying the court for an order that the "plaintiff pays into court the amount outstanding on the mortgage pending the hearing and determination of this suit and for such further order or orders as to this honourable court may seem just." This motion came on for hearing on 14 August 1968 and I noticed that the certificate of proof of service of the motion at the back of the court's copy of the application had been cancelled and I therefore called the bailiff into the witness-box to explain his conduct. The bailiff, Seth Aryettey Amarh, testified that on 8 August 1968, he went to the office of the solicitor for the plaintiff and served him with the [p.755] motion paper together with the supporting affidavit. Thereupon the solicitor refused to accept them on the ground that he had not seen his client for some time.
I ruled that it was improper in the circumstances for the solicitor to refuse service of the motion paper and the supporting affidavit, and I wish to emphasise, and for this to be appreciated by all practising lawyers, that once a solicitor has appended his signature to a court process he is deemed to be his client's representative until with leave of the court he has withdrawn from the suit, or the client himself has, by filing necessary documents in court, dispensed with the services of that solicitor, or a new solicitor has been appointed in his place and the necessary documents have been filed. Without a