Land-Mort~age--Construction-Consequences
of renewal of lease.
In consideration of a loan of
£250 the plaintiff deposited
with a predecessor of the
defendant Akowua, by name Derkyi,
his document of title to certain
leasehold premises, and at the
same time by an informal
document purported to grant to
the said defendant his interest
in the said premises. The
principal conditions in this
document were that the plaintiff
was to remain in possession and
that the lease was to be the
absolute property of Derkyi if
the principal and interest were
not paid within one year. The
principal and interest were not
paid within the time specified,
and Derkyi sold the lease to the
defendant Dabanka.
The plaintiff sued in the
Circuit Court of Ashanti for the
return of his premises, but his
action failed.
On appeal it was held that the
original transaction between
plaintiff and Derkyi was not a
native mortgage because the
plaintiff was to remain in
possession. The Court held it to
be an equitable mortgage which
plaintiff was still entitled to
redeem, and ordered the sale to
set aside and the premises to be
assigned to the plaintiff.
As regards certain renewals of
the lease which had been
effected by Akowua,
it was held that they were
engrafted on the old lease and
formed part of the security.
E.
O.
Asafu-Ad.faye
for the Plaintiff-Appellant.
A. M. Akiwumi
for the first
Defendant-Respondent. The
following judgments were
delivered :-
MICHELIN, J.
This is an appeal from the
judgment of the Acting Circuit
Judgt of Ashanti (His Honour
Francis John McDowell) dated the
oth October 1929, in favour of
the defendants with costs.
By his writ of summons dated the
28th July, 1928, the plaintiff
claimed from the first defendant
:-
"possession of plaintiff's
compound house situated at
Kajatia on plot No. 387 which
plot is known as Juabeng Stool
land, and which house by a
mortgage deed dated the 27th day
of August, 1912, was mortgaged
by the plaintiff to one Kojo
Derkyi since deceased for a loan
of £250 plus interest of £100,
which said compound house the
said Kojo Derkyi deceased
transferred possession of to
Chief Yaw Dabanka as Caretaker."
On the action coming on for
hearing before the Court on the
6th September, 1928, Kwami
Akowua was on the application of
the plaintiff joined as a
co-defendant and the writ of
summons was amended to read as
follows:-
Plaintiff's claim is to call
upon :-
(a)
the second defendant Kwami
Akowua to shew cause why he
should refuse to accept
repayment of an amount of £350
being as to £250 money lent to
plaintiff by his predecessor
Kwadjo Derkyi (since deceased)
and as to £100 interest charged
thereon, and which sum of £350
is due and payable under Deed of
Mortgage dated 27-8-1912 and
repayment of which amount was
secured by plaintiff's house
situated at Kajatia Prison Road
Kumasi.
" (b)
The first defendant Chief Yaw
Dabanka to show cause why he
alleged to have bought
plaintiff's house situated at
Kajatia Prison Road Kumasi for
the sum of £250, well knowing
the same to have been mortgaged
to one Kojo Derkyi (since
deceased) and of whom K wami
Akowua is now the successor, and
of which property the said Chief
Yaw Dabanka was Caretaker who
also signed as an attesting
witness to the Mortgage Deed
dated ~7-8-1912 given to the
said Kwadjo Derkyi (since
deceased)."
The plaintiff not having had the
advantage of the assistance of
Counsel in preparing his writ of
summons, these particulars are
rather peculiarly worded, but it
is clear that the action as
against the first defendant was
intended to be a claim for the
recovery of the possession of
the mortgaged premises on the
ground of the sale to the first
defendant being invalid, and as
against the second defendant, it
was a claim for redemption.
It will be as well at this stage
to set out in detail the
contents of the mortgage deed in
respect of which this action has
been brought, and which was
admitted in evidence in the
Court below as Exhibit " A."
It reads as follows :-
.. This Indenture made the 27th
day of August 1912 Between Moses
Adjaye of Coomassie hereinafter
called the Mortgagor which
expression shall where the
context so admits include his
heirs successors and
representatives, of the one
part, and Kojo Derkyi of
Coomassie hereinafter called the
Mortgagee which expression shall
where the context so admits
include his heirs successors and
representatives of the other
part Witnesseth that whereas the
Mortgagee hath at the request of
the Mortgagor agreed to lend
£250 to the Mortgagor the sum
Two hundred and fifty pounds on
repayment of the £100 same in
one year from the date thereof
with an interest of One Hundred
Pounds and Whereas the Mortgagor
is the owner in his own right of
the building hereinafter charged
with the payment of the Mortgage
debt or intended so to be Now
This Indenture Witnesseth that
in consideration of the sum of
Two Huadred and Fifty Pounds
(£250) paid by the Mortgagee to
the Mortgagor the receipt
whereof the J.\Iortgagor hereby
acknowledges together with
interest hereinbefore provided
the Mortgagor hereby grants unto
the Mortgagee All the Building
situate in the town of Coomassie
in the Market Road known as
Moses Adjaye's house under the
following terms and conditions
:-
.. 1. That upon the Mortgagor
failing to pay to the Mortgagee
the sum of Three hundred and
fifty Pounds £350 at the end of
one year from the date hereof
then the Mortgagee shall enter,
take possession of and freely
enjoy the use of the Building
herein above referred to, which
shall from that date and for
ever be and remain the property
of the Mortgagee absolutely and
without any manner of condition
.
.. 2. That the said Building
shall remain in the possession
use and control of the Mortgagor
who shall also draw and receive
all rents accruing therefrom
until the end of one year from
the date of these presentshis
predecessor Kwadjo Derkyi (since
deceased) and as to £100
interest charged thereon, and
which sum of £350 is due and
payable under Deed of Mortgage
dated 27-8-1912 and repayment of
which amount was secured by
plaintiff's house situated at
Kajatia Prison Road Kumasi.
" (b)
The first defendant Chief Yaw
Dabanka to show cause why he
alleged to have bought
plaintiff's house situated at
Kajatia Prison Road Kumasi for
the sum of £250, well knowing
the same to have been mortgaged
to one Kojo Derkyi (since
deceased) and of whom Kwami
Akowua is now the successor, and
of which property the said Chief
Yaw Dabanka was Caretaker who
also signed as an attesting
witness to the Mortgage Deed
dated 27-8-1912 given to the
said Kwadjo Derkyi (since
deceased)."
The plaintiff not having had the
advantage of the assistance of
Counsel in preparing his writ of
summons, these particulars are
rather peculiarly worded, but it
is clear that the action as
against the first defendant was
intended to be a claim for the
recovery of the possession of
the mortgaged premises on the
ground of the sale to the first
defendant being invalid, and as
against the second defendant, it
was a claim for redemption.
It will be as well at this stage
to set out in detail the
contents of the mortgage deed in
respect of which this action has
been brought, and which was
admitted in evidence in the
Court below as Exhibit " A."
It reads as follows :-
.• This Indenture made the 27th
day of August 1912 Between Moses
Adjaye of Coomassie hereinafter
called the Mortgagor which
expression shall where the
context so admits include his
heirs successors and
representatives, of the one
part, and Kojo Derkyi of
Coomassie hereinafter called the
Mortgagee which expression shall
where the context so admits
include his heirs successors and
representatives of the other
part Witnesseth that whereas the
Mortgagee hath at the request of
the Mortgagor agreed to lend
£250 to the Mortgagor the sum
Two hundred and fifty pounds on
repayment of the £100 same in
one year from the date thereof
with an interest of One Hundred
Pounds and Whereas the Mortgagor
is the owner in his own right of
the building hereinafter charged
with the payment of the Mortgage
debt or intended so to be Now
This Indenture Witnesseth that
in consideration of the sum of
Two Huadred and Fifty Pounds
(£250) paid by the Mortgagee to
the Mortgagor the receipt
whereof the Mortgagor hereby
acknowledges together with
interest hereinbefore provided
the Mortgagor hereby grants unto
the Mortgagee All the Building
situate in the town of Coomassie
in the Market Road known as
Moses Adjaye's house under the
following terms and conditions
:-
.. 1. That upon the Mortgagor
failing to pay to the Mortgagee
the sum of Three hundred and
fifty Pounds £350 at the end of
one year from the date hereof
then the Mortgagee shall enter,
take possession of and freely
enjoy the use of the Building
herein above referred to, which
shall from that date and for
ever be and remain the property
of the Mortgagee absolutely and
without any manner of condition
.
.. 2. That the said Building
shall remain in the possession
use and control of the Mortgagor
who shall also draw and receive
all rents accruing therefrom
until the end of one year from
the date of these presents.
3.
That the Mortgagee shall not
take possession of the Mortgaged
building as herein provided
until he shall have delivered
such notice to any caretaker
whom the Mortgagor may put in
charge of the said building, or
left such notice on the said
building or any conspicuous
parts of it .
•• As Witness the hand of Moses
Adjaye at Coomassie the day and
year first above written.
Moses Q. Adjaye his
Kojo Derkyi X
mark. " Signed by the said Kojo
Derkyi at Coomassie this
Indenture having been first read
over and explained to him in the
Ashanti language by me when. he
seemed to understand the same
and made his mark thereto in my
presence Harry Anaman Licensed
Letter Writer
Central District; No. 1091.
Witnesses
his
Chief Yao
Adabanka X
of Tafu
mark.
his
Kwamin
Mensah X
mark. his
Kofi Poku
X
mark."
i Although not so stated in the
Mortgage deed, it is apparent ,
from the evidence that the land
upon which the mortgaged house
was erected was land which had
been leased by the Mortgagor
from the Chief of Juabin who in
turn held this land under a
lease from the Government of
Ashanti.
The facts appear to be shortly
as follows :-On the 27th August,
1912, the plaintiff obtained a
loan of £2M from one Kwadjo
Derkyi the predecessor of the
second defendant which he
undertook to repay with interest
agreed upon at the sum of £100,
and at the same time he secured
the payment of this debt by
executing the document marked
"A" which was deposited by him
together with the lease of the
premises with the said Kwadjo
Derkyi. The plaintiff then
apparently left Kumasi, and went
to a place called Bana, finally
returning to Kumasi in the year
1925. During his absence he had
left the first defendant, as his
caretaker, in charge of the
house, and had authorised him to
collect the rents thereon during
his absence. On his return he
endeavoured to redeem the house
which he had mortgaged by
offering payment of the sum of
£350 to the second defendant,
who in the meantime on the death
of the Mortgagee had succeeded
him, but the plaintiff was
informed that during his absence
the house had been sold, the
purchaser being the first
defendant, whom he had left in
charge of the house in his
absence. The first defendant
refused, however, to give up the
house to the plaintiff, and the
redemption could not therefore
be effected. The present action
was therefore instituted.
The learned trial Judge held
that the sale by the mortgagee
was valid sale and refused to
set aside such sale, and he also
held that the action as against
the second defendant was wrongly
conceived, the plaintiff's
remedy being in damages.
