The plaintiff 's claim against the defendant is for the sum of £G600 being as to £G305 the unsatisfied balance of a loan and as to £G295 damages for fraud or deceit or both.
The plaintiff is a licensed moneylender and the defendant a goldsmith, both of the town of Onwe near Ejisu. The plaintiff lived at Onwe and the defendant lived and worked in Kumasi. The plaintiff's statement of claim alleges that in or about 1957 he lent the defendant the sum of £G382 10s. with interest of £G67 10s. and by the terms of the mortgage the defendant was to repay the principal and interest on or before 31 January 1958 and the defendant offered several farms and an uncompleted house at Onwe as security. The defendant defaulted in the repayment of the loan and the plaintiff exercised his right of sale under the mortgage. The defendant's family then sued the plaintiff to set aside the sale on the ground that the properties mortgaged by the defendant were family property. In 1965 the defendant's family had the sale of the house set aside and the plaintiff was ordered to pay damages of £G25 for trespass with costs of 60 guineas. The plaintiff then instituted this action. It is the contention of the plaintiff that the mortgage of the house to him by the defendant was fraudulent in that he knew that the house was family property and yet mortgaged it without the consent or knowledge of the family and further that he swore to an affidavit in which he falsely stated that the house was his own self-acquired property.
For his part, the defendant in his statement of defence, admits the loan and the mortgage but puts the principal at £G300 and interest at £G150 and says that the figures stated in the mortgage deed were false. He admits that the properties secured by the mortgage were family properties but contends that the plaintiff had knowledge of the family character of these properties, and made him use them for the purposes of the mortgage, with the defendant's sister as surety. The defendant admits that his family sued the plaintiff for the recovery of the house and the setting aside of the sale, he denies however that he acted fraudulently and does not admit the particulars of fraud pleaded by the plaintiff and counterclaimed for a declaration that the loan transaction with the mortgage is null and void and unenforceable under the Moneylenders Ordinance, Cap. 176 (1951 Rev.), and in the alternative for an order under the Loans Recovery Ordinance, Cap. 175 (1951 Rev.), that the
