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The Money-lenders Ordinance of
Sierra Leone, section 4-Money
lenders to carryon their money
lending business in their
registered names and under no
other names or descriptions-Effect
of omission to add the word
"money-lender" to such a person's
correct name and address in a
mortgage deed.
Section 4 (I) of the Money-lenders
Ordinance of Sierra Leone directs
that a money-lender shall carry on
his money lending business in his
registered name and in no other
name and under no other
description.
Penalties are provided in the same
section for any breach of this
enactment.
In a Mortgage Deed entered into
between a borrower and a
registered money lender the
latter's correct name and address
were given, but he was not
described in the Deed itself as a
money lender. The Supreme Court of
Sierra Leone held that this
omission was sufficient to
constitute a breach of the
provisions of section 4 of the
Ordinance and, consequently, to
render the Mortgage Deed illegal
and a sale made thereunder
invalid.
Held, on appeal, that as the
money-lender had not been
described at all in the Mortgage
Deed he could not be said to have
been incorrectly described
therein. There was therefore no
breach of section 4 (I) of the
Ordinance and the Mortgage Deed
was legal and the sale thereunder
valid.
E. F. Luke
for Defendant-Appellant:
R. B. Marke
for Plaintiff-Respondent.
The following judgments were
delivered :BERKELEY, J.
This is a case in which the Court
below set aside a sale, made under
a mortgage deed, on the ground
that the mortgagee, Ii registered
money-lender, had not disclosed
that fact in the mortgage deed and
had by that omission infringed the
provisions of section 4,
sub-sections 1
(b)
and 1
(c)
of the Money-lenders Ordinance,
Cap. 129 of 1924. The mortgagee,
who is the present appellant, now
seeks to have the sale restored.
The relevant provision in the
Money-lenders Ordinance, Cap. 129
of 1924, is section 4, sub-section
1
(b).
This section directs that a
money-lender shall carryon his
money-lending business in his
registered name and in no other
name, and under no other
description. The Ordinance goes
on, in sub-section 2 of this same
section 4, to provide a penalty of
a fine for any first, and
imprisonment for any subsequent
breach of this enactment.
The Court below held that although
the mortgagee had given his
correct name and address in the
mortgage deed yet the omission to
add the word" money-lender" to his
name was sufficient to constitute
a breach of this enactment, render
the mortgage transaction illegal,
and the sale made under it
invalid.
There does not seem to have been
any deception. The parties knew
quite well with whom they were
dealing, and the description "
money-lender" attached to the
mortgagee's name would have made
no difference to their attitude
towards him. Counsel for the
respondent says that the word"
money-lender" attached to the
mortgagee's name would serve as
a warning to any solicitor,
employed to investigate the
title, and cause him to exercise
additional vigilance. But it is
the duty of every solicitor,
employed to investigate title,
to use proper care and diligence
in every case regardless of the
occupations pursued by the
parties to the transaction. As I
have. just said the Ordinance
uses the words " and under no
other description," and I find
it hard to believe that the
omission of the word"
money-lender" from the
mortgagee's name and address can
constitute a breach of this
provision. He has not described
himself incorrectly, he has not
described himself at all.
In R. v. Tugwell,
L.R. 3 Q.B. 704, it was held
that when a statute requires
that the name, place of abode,
and description of a person be
given, and only the name and
place of abode are given, there
is a total omission of the
description and not an
inaccurate description.
As I have already said the
Ordinance attaches a penalty of
fine and imprisonment which may
be inflicted for any breach of
the provisions of this section 4
of the Ordinance. This provides
us with a useful test in this
case. We can ask ourselves the
question, would any Court
convict a man under section 4
merely because in a mortgage
deed he neglected to add the
word "money-lender" to his
proper name and address? I do
not think that the answer can be
other than in the negative. If
that is so, then the omission
was not an illegal one. And if
it was not illegal then the sale
cannot be invalidated by it.
In my opinion this appeal must
be allowed and the sale restored
to validity. By consent the
order of the Court below that
the plaintiff pay to the
defendant the sum that would
have been due to him for
principal and interest on the
18th November, 1931, if interest
had been calculated at the rate
of 15 per cent per annum, the
amount due to be calculated by
the Master, will stand.
The appellant will have his
costs in this Court and the
Court below.
KINGDON, C.]. NIGERIA.
I concur.
MACQUARRIE, ACTING C.]. SIERRA
LEONE.
I concur.
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