MARFO AND OTHERS v. ADUSEI

JUDGMENT OF MILLS-ODOI J.S.C.

Mills-Odoi J.S.C. delivered the judgment of the court. This appeal is from a judgment of D. E. Gwria, Esquire, Commissioner of Assize and Civil Pleas (as he then was) delivered on the 29th June, 1960, in the Land Court, Kumasi, whereby he gave judgment for the plaintiff.

By a deed of mortgage dated the 26th May, 1957, and marked exhibit B in this case, the plaintiff mortgaged his two cocoa farms at Atambo and Mmotonor respectively to the first defendant for a loan of £G430 with interest of £G30 repayable on the 15th January, 1958. A term in the mortgage deed provided:

"that if the mortgagor and the surety shall fail to pay the mortgage debt and every part as aforesaid the mortgagee shall be entitled to sell the said properties hereby by public auction or private contract upon his giving one (1) month's notice in writing to the mortgagor and the surety to pay off the mortgage debt hereby or any part thereof as aforesaid then remaining due and owing upon these securities one (1) month next after the time of giving of such notice PROVIDED ALWAYS that the title of a purchaser shall not be impeachable on the ground that no case has arisen to authorise the sale or that the due notice was not given or that the power of sale was otherwise improperly exercised . . ."

[p.227]

The plaintiff defaulted in repaying the mortgage debt on the due date and, on the instructions of the first defendant, the third defendant a licensed auctioneer, served a month's notice in writing on the plaintiff in accordance with the terms of the mortgage deed. On the expiry of the notice the mortgage debt was still not paid. Wherefore the third defendant, at the request of the first defendant, posted an auction notice dated the 20th February, 1958, advertising the sale of the plaintiff's two cocoa farms on the 6th March, 1958. However, it was not until the 6th June, 1958, that the cocoa farm at Mmotonor was sold by public auction to the second defendant for £G50.

Being dissatisfied with the circumstances leading to the sale of his cocoa farm the plaintiff sued the defendants in the Land Court, Kumasi, claiming (a) an order to set aside the sale of the farm; (b) accounts; and (c) damages for the wrongful sale of the said cocoa farm.

The plaintiff's writ was supplemented by or with a statement of claim in paragraphs 4, 5 and 8 of which the following important averments were made:

"4. On the 20th February, 1958, the first defendant caused the above-menti