OPARE KWADJOE v. A.L. CUDJOE

Michelin, J.

This action was originally instituted in the Native Tribunal of Akwapim, but by an Order of the Provincial Commissioner dated the 7th March, 1927, it was transferred for hearing in this Court.

By his writ of summons dated the 25th January, 1927, as subsequently amended in Court, the plaintiff claims from the defendant:-

(a) Possession of a piece of land, the property of the plaintiff situate at Pomponso near Nsawam bounded on the North by Yao Asare's land, measuring 1,035 feet, on the South by Ohene Djan's property measuring 2,412 feet, on the East by Ohene Djan's property and Kwadjo Kuma's property measuring 3,304 feet, and on the West by the River Densu measuring 4,200 feet.

(b) for mesne profits.

The facts are shortly as follows:-

On the 6th July, 1927, the late Ohene Djan of Aburi who owned certain stool property at Nsawam known as Abrade Stool land, obtained a loan of from the defendant, and at the same time executed a document in favour of the defendant agreeing to repay this amount with interest of , within one month from the date of the said document, and at the same time securing this loan on such stool property which is described in this document as follows :-

“Yaw Okyereko's house, Chief Kwasi Ampeh's house, Atta “Kwadjoe's house, Kofi Payin's house and Chief Djan's village " at Nsawam."

This document was therefore not only a promissory note in favour of the defendant, but it also constituted an equitable mortgage on the property described in the said document (see Judgment of Full Court in Kweku. Adu Sei v. Johnson Ofori F.C. 12. 2. 26).

Upon Chief Djan failing to pay this amount when due,. the defendant instead of coming to the Court by way of foreclosure action to enforce his rights under the equitable mortgage elected to exercise his alternative remedy by suing on the promissory note.

Judgment was delivered in his favour in the Divisional Court, Accra, on the 20th July, 1918 in suit No. 122/18 Alfred Lincoln Cudjoe v. John Sampson Djan for the full amount due with costs and a writ of "fr. fa." having been subsequently issued, certain lands which were described in the Sheriff's Notice of attachment as follows:-

"All that piece or parcel of land situate and lying at Nsawam " known as Djankrome, and bounded on one side by the properties " of Armah and Owoo, on one side by the Densu River, on one " side by the Pompon stream, and on the other side by properties "belonging to the late Jonas Lloyd Crabbe, the property of the