MANU AND ANOTHER v. GYAWU

JUDGMENT OF APALOO J.

The substance of the plaintiffs' claim in this action, is a declaration that a loan transaction entered into between the plaintiffs of the one part and the defendant of the other part is void on the ground that such transaction offends against the provisions of the Moneylenders Ordinance1 or in the alternative an order re-opening the said transaction on the ground that the interest charged was harsh and unconscionable.

The plaintiffs are brothers. The first plaintiff is the younger and more active of the two. About eighteen years ago, both plaintiffs jointly made a cocoa farm at a place called Ntabanu. The evidence shows that it was a fairly large farm. At a date prior to June 1960, the plaintiffs fell into debt and their farm was sold by public auction. Although there is no evidence as to whether the sale was ordered by a mortgagee exercising his power of sale, the first plaintiff's evidence makes it likely that that was the case. A man whose name was given as Kwadwo Asawuram purchased it for the sum of £G1,200. The latter offered to resell it to the plaintiffs at the same price. The plaintiffs agreed to repurchase it, but were not in funds to meet payment. At that time, they also owed £G1,200 to one Baffuor Akoto. Either the plaintiffs were by nature improvident individuals or they must just have run into a bit of bad luck. They wanted £G2,400 rather badly. They mentioned this matter to one Kwadwo Bi. The latter offered to take them to a moneylender to whose niece he was married. This happened to be the defendant.

Bi took the first plaintiff to the defendant and he asked for a loan of £G2,400. He disclosed to the defendant the use to which the loan, if granted, was to be put. He offered to secure repayment of the loan with their farm. The defendant accordingly inspected the farm. He must have felt satisfied with it and agreed to grant the loan required.

[p.443]

It was arranged that instead of handing the physical cash to the plaintiffs, the defendant should instead pay off their creditors. This was an eminently reasonable arrangement as it would ensure that the farm was freed and discharged from all incumbrances. The defendant obviously asked for interest on the loan. I am satisfied he asked for £G2,400 interest. This the first plaintiff agreed to pay. He could have had no choice in the matter. The repayment of the loan was to be made with the proceeds of the farm. It was agreed that two-thirds of the income of the farm shoul