PETER BARBOZA HOVOR v. JOANA OCRAN & ANOTHER
2013
COURT OF APPEAL
GHANA
CORAM
- KUSI-APPIAH, J. A (PRESIDING)
- P. K. GYAESAYOR, J. A
- DZAMEFE J.A
Areas of Law
- Civil Procedure
- Contract Law
2013
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The case involves the plaintiff who mortgaged his title deeds as collateral for a loan requested by the 1st defendant, who failed to return the deeds and used them for further loans without consent. The District Court ruled in favor of the plaintiff, and the subsequent High Court dismissal of the 1st defendant’s stay of execution led to this appeal. The core issue is whether the High Court exercised proper discretion in refusing the stay, considering the balance of hardship and if the 1st defendant was sued in the correct capacity. The Court of Appeal upheld the High Court's ruling, finding no merit in the appeal and confirming the personal liability of the 1st defendant due to specific undertakings.
KUSI-APPIAH, J.A:
This is an appeal against the ruling of an Accra High Court, presided over by Mrs. Doris Bempong J. delivered on the 3rd day of July 2012, refusing an application for stay of execution mounted by the defendant/appellant against the decision of the District Court, James Town, Accra in favour of the plaintiff/respondent. I will refer to the parties in the manner they appeared at the court below.
By its decision, the District Court, James Town, Accra had granted the plaintiff’s claim for:-
“1. The return of his title deeds to him from 1st Defendant forthwith.
2. Damages of GH¢4,000 against the 1st Defendant for the keeping of plaintiff’s indenture with her after using it to obtain loan from the Bank without his knowledge in 2002.
3. Damages of GH¢1,000 against the Bank for extending facility without the knowledge of the plaintiff in the year 2002.
4. Costs of GH¢2,000 against the 1st and 2nd defendants jointly and severally.”
The case of the plaintiff as gathered from his pleadings and evidence at the trial was that upon a request by the 1st defendant, he mortgaged his title deeds to his house situated at Teshie Nungua Estates, Accra on or about 22nd October 2001, as collateral to the 2nd defendant Bank for a credit facility of ¢3 billion old Ghana Cedis now GH¢300,000 to the 1st defendant.
According to the plaintiff the 1st defendant made an undertaking in Exhibits “E” and “F” to return his title deeds to him after the facility is liquidated. However, the 1st defendant failed to honour her said undertaking when she settled her indebtedness with the Bank. Plaintiff contended that instead, the 1st Defendant went in for further loan facilities using his property as an indemnity without his consent. To vindicate his rights, the plaintiff brought this action against the 1st defendant and 2nd defendant Bank claiming the reliefs endorsed on the writ of summons on 17th day of February, 2005.
By way of reply, the 1st defendant stated that in the year 2002, the plaintiff gave up his title deeds to an Incorporated Association called Mayekom Na Mehwe Onyame Cloth Sellers Association for which the plaintiff’s wife was a member to assist the Association obtain a bulk loan from the 2nd defendant to the benefit of the members of the Association including the wife of the plaintiff.
According to the 1st Defendant the title deeds were tied to the indebtedness of the wife of the plaintiff to the Association and that the Association agreed to retur