TAWIAH-YESEREH v. C.F.A.O. AND ANOTHER
1966
SUPREME COURT
GHANA
CORAM
- OLLENNU
- AKAINYAH
- BRUCE-LYLE JJ.S.C
Areas of Law
- Property and Real Estate Law
- Contract Law
- Civil Procedure
- Evidence Law
1966
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Compagnie Fran daise de l b4Afrique Occidentale (CFAO) attached house N.T.E.R. 180 in Kumasi after a large stock deficit was found at the store of Daniel Kofi Atta. The house had been mortgaged by Atta b4s uncle, Kwaku Forkuo, on 29 December 1953 to secure Atta b4s employment and fidelity. Atta initially worked as an ordinary storekeeper, later becoming a commission storekeeper under 1955 agreements after a letter he sent was endorsed by Forkuo. In 1956, CFAO discovered a deficiency and, after notice, instructed their agent (the second defendant) to attach the house for sale on 17 April 1958. The plaintiff, Forkuo b4s successor and devisee, sued for damages and release. The Land Court (Murphy J.) dismissed the claim. On appeal, Bruce-Lyle J.S.C., with Ollennu J.S.C. concurring, held the appellant could not change his case beyond his pleadings, found Forkuo had consented to Atta b4s new status, and affirmed CFAO b4s right to sell under the mortgage. Akainyah J.S.C. dissented, but the appeal was dismissed.
JUDGMENT OF BRUCE-LYLE J.S.C.
This is an appeal against the judgment of Murphy J. dated 25 June 1959, of the Land Court, Kumasi, whereby the court dismissed the claim of the plaintiff-appellant (hereinafter referred to as the plaintiff) against the defendants-respondents (hereinafter referred to as the defendants) for (a) £G400 damages for wrongful and unlawful attachment of house No. N.T.E.R. 180 situate at Kumasi and (b) an order of the court releasing the said house from attachment.
The undisputed facts are that on 29 December 1953, Kwaku Forkuo, the plaintiff’s predecessor, mortgaged his house No. N.T.E.R. 180 in Kumasi to the first defendants as security for [p.360] employment by them of his nephew by name D. K. Atta " as a produce buyer, credit customer, storekeeper and or salesman and or in any other capacity." On the strength of this security, Atta was employed by the first defendants as an ordinary storekeeper under an agreement dated 18 January 1954. Atta, wishing to change the nature of his employment to that of a commission storekeeper, wrote a letter to that effect to the first defendants, endorsed by the mortgagor Kwaku Forkuo, and in consequence of that letter, fresh agreements dated 12 April 1955 and 17 September 1955, were entered into betweeen Atta and the first defendants under which Atta was employed as a commission storekeeper.
In August, September and October 1956, as a result of correspondence between Forkuo and the first defendants and between their respective solicitors, stock was taken at Atta's store and a deficiency was discovered and after the first defendants had given the necessary notice under the mortgage deed of December 1953, they caused the property house No. N.T.E.R. 180 to be attached for sale on 17 April 1958.
The plaintiff brought this action against the defendants in his capacity as successor of Kwaku Forkuo who died in December 1957, and also as the devisee of the house No. N.T.E.R. 180. It was the case for the plaintiff that the subsequent agreements dated 12 April 1955 and 17 September 1955, under which the first defendants employed Atta as a commission storekeeper were entered into without the knowledge and consent of Forkuo and that the deficiency incurred by Atta under those agreements could not be made good by the sale of the property which was offered by Forkuo as security in the mortgage deed of December 1953, since under that mortgage Atta was to be employed by the first defendants as an ordinary sto