KOBINA GURA for HIMSELF as HEAd AND ON BEHALF OF THE TWIDAN FAMILY OF GOMOA AWOMIRO AND OTHERS v. KOBINA AGYEI of AGONA NAABA
1948
HIGH COURT
GHANA
CORAM
- QUIST, J
Areas of Law
- Contract Law
- Property and Real Estate Law
- Banking and Finance Law
1948
HIGH COURT
GHANA
CORAM
AI Generated Summary
A dispute between successors of the original mortgagors and creditor Kobina Agyei concerns the Awomiro Central Market and land pledged for a £250 loan. Under a 14 May 1940 agreement and a 2 May 1942 mortgage, Agyei was empowered to collect Awomiro market tolls for ten years as interest and hold security over the land and market. Nana Nyanful Krampah IX, Kobina Gura, and Obaatan Kwesi Budu sought an account of tolls and redemption after the Gomoa Ajumaku State opened a new market around 1947 that displaced Awomiro. With no pleadings and both sides consenting to rely on the documents, the court construed the agreement and mortgage. It held that Agyei was not an accounting party for tolls, the plaintiffs remained liable for £250, and redemption would be granted upon payment within two months. No further interest or incidental expenses were allowed, though costs were awarded to the defendant.
Judgment:
The Plaintiffs by their amended Writ of Summons claimed an account of all market dues or tolls collected by the defendant as Mortgagee in possession of Awomiro market, mortgaged or pledged by the plaintiffs to the defendant on the 14th of May, 1940, in consideration of a loan of £250 granted by the defendant to the plaintiffs, and redemption of the lands and Awomiro market subject matter of the Mortgage Deed dated 2nd day of May, 1942.
The present Plaintiffs are all successors of the original parties who contracted with the defendant, Nana Nyanful Krampah IX being successor to Nana Nyanful Krampah VIII, Kobina Gura being successor to Kwamin Donkoh head of the Twidan Family of Gomoa Awomiro, and Obaatan Kwesi Budu being in place of Kojo Atta Odikro of Awomiro.
The suit was commenced by Kobina Gura as sole plaintiff, but Nana Nyanful Krampah IX, Omanhene of Gomoa Ajumaku, and Obaatan Kwesi Budu acting Odikro of Awomiro were added by Order of Court dated the 15th of July 1948 as co-plaintiffs.
At the request of, and by agreement between counsel for the parties, this case which has been part-heard before two Judges was heard de novo.
No Pleadings were filed in the case; the openings by counsel, in accordance with practice obtaining in the Courts, were therefore regarded as Pleadings. follows:-
Counsel for Plaintiffs in his opening stated the Plaintiffs' case to be as
Under an agreement between the plaintiffs and defendant dated the 14th of May, 1940, the defendant granted a loan of £250 to the Plaintiffs, an Indenture of Mortgage dated the 2nd of May, 1942, being subsequently executed by the Plaintiffs in favour of the defendant by way of security for the loan.
The said agreement and mortgage contain the terms on which the loan was granted.
The defendant had collected market dues or tolls in respect of Awomiro market since May 1940; but the market ceased to be under his control in or about the year 1947, the Gomoa Ajumaku State having established a new State market, and prevented the public from resorting to the Awomiro market under the defendant's control.
The plaintiff desires to ascertain the amount of market tolls that had been collected by the defendant since 1940, when the market was under his control, in order to discover what balance, if any, was due for payment to the defendant, and with the view to a redemption of the property mortgaged.
Counsel added that the expression mortgagee in possession, as applied to the defendant, meant