March 30, 1931
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
AI Generated Summary
Chief Justice Sir George Campbell Deane decided an action concerning a mortgaged parcel of land at Adedainkpo, Accra, originally purchased by Joseph Mensah Laryea from Arthur Robert Chinery in 1908. The land was mortgaged by J.M.L. in 1923 to secure any deficiencies in the accounts of his son, Robert Adjetey Laryea, a storekeeper employed by the defendant company. The plaintiff, the youngest of the Laryea brothers, asserted that the property was “family property,” that he had contributed £180 and later £350 to its acquisition and construction, supervised building, lived there with his wife and children, and that the mortgage was executed without his consent and in fraud of his rights. He also relied on the defendants’ Divisional Court judgments against R.A.L. and S.T.L. and the death of J.M.L. to argue the sale was barred. Deane C.J. held the plaintiff lacked locus to defeat the mortgage, only payment bars sale, death did not terminate the guarantee, the head of family did not claim the property, and the plaintiff did not prove any proprietary interest; judgment was entered for the defendants with costs.
JUDGMENT.-DEANE, C.J.
In this action the plaintiff claims a declaration that the parcel of land described in the writ of summons and situate at Adedainkpo, Accra, and mortgaged to the defendants by one Joseph Mensah Laryea for the purpose of securing to the mortgagees the repayment of the value of all goods from time to time entrusted by them to his son Robert Adjetey Laryea during the course of the latter's
employment as their storekeeper by the defendants, was not the individual property of the said Joseph Mensah Laryea at the time when it was so mortgaged by him but was family property of himself and of the said Joseph Mensah Laryea and is therefore not liable to make good the default of the said Robert Adjetey Laryea-a further declaration that the said mortgage was executed without the knowledge or consent of the plaintiff and in fraud of his rights, and an injunction to prevent the defendants from exercising the power of sale conferred on them by the mortgage.
In the particulars annexed to the writ the plaintiff set out that Joseph Mensah Laryea, Samuel Tawiah Laryea and himself were children of the same parents and entitled to succeed to each other's property by Ga customary law: that about the year 1916 on the return of the plaintiff to Accra after 11 years service in the Bights he deposited with the said Joseph Mensah Laryea his eldest brother the sum of £350 towards the cost of building a family house on the land described in the writ : that since the completion of the building in 1922 he has lived in it with his wife and two children and until a notice of intention to sell dated 9th January, 1931, signed by the solicitor to the defendants, was posted on the property he had no knowledge of the existence of the mortgage.
He further stated that on or about 20th December, 1930, the defendants obtained judgment in the Divisional Court, Accra, for the sum of £5784 s. 6 d., including costs, jointly and severally against Robert Adjetey Laryea and Samuel Tawiah Laryea as principal debtor and surety respectively for deficiencies in his accounts by the said Robert Adjetey Laryea, and that it is to satisfy this debt that they are seeking to sell the mortgaged properties.
Lastly he alleged that the said Joseph Mensah Laryea died in or about the year 1928 (23rd April, 1928) and that at the time of his death there was nothing due to the defendants either under the mortgage or alleged guarantee.
Facts which have either been proved or admitted in the case i