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  • appeal
  • 1961-10-16
  • GLR 569-573
  • Print



Mortgages?-Adopting a mortgage by conduct?-Member of family wrongfully mortgages family property?-Family later becomes aware of mortgage, pays part of the debt and raises a further loan on the same farm?-Whether prior mortgage adopted.Mortgages?-Whether a clause permitting mortgagee to buy in the mortgaged property constitutes a clog on the equity of redemption.Mortgages?-Deeds of mortgage?-Whether a deed which is lacking in certain details, e.g. fails to recite the title of the mortgagor, fails to stipulate time for repayment and contains no proviso for redemption, is a legal mortgage.


Bekoe and Kewuo raised a loan of G800 from Ntem, the first defendant herein. After they had paid G100, they mortgaged to him certain farms, including the family farm in dispute, to secure the repayment of the remaining G700. The members of the family were not aware of this transaction, and Kewuo had sworn to an affidavit that the farm was his private property. It was in fact in his possession as successor to a deceased member of the family. After the death of both Bekoe and Kewuo, the members of the family, on becoming aware of the mortgage arranged with the mortgagee to pay off the debt. They paid G110, reducing the debt to G590. Thereafter they raised on their own account a loan of G50 from the mortgagee which they added to the G590 to bring the total indebtedness to G640. They were given possession of the family cocoa farm to use the proceeds in defraying the debt. Instead, they made use of the proceeds themselves, and defaulted in paying the debt. The first defendant therefore exercised his power of sale under the deed of mortgage and caused the farm to be sold to the second defendant.The plaintiff as head of family brought the present action in the local court to assert the family's title to the farm and for a declaration that the transaction in respect of the farm between the first defendant and Bekoe and Kewuo is void and therefore the sale is also void, because the farm was mortgaged without the knowledge and consent of the family. The local court dismissed the claim. On appeal to the High Court, it was further argued that the mortgage was not a legal mortgage and therefore the mortgagee could not have sold the farm without an order of the court. This argument was based on the facts that the deed did not recite the title of the mortgagor, it did not stipulate the time for repayment and it did not contain a proviso for redemption. It was also argued that the clause entitling the mortgagee to buy in the farm at a sale was a clog on the equity of redemption and invalidated the deed of mortgage.


APPEAL from a judgment of the Amansie Local Court in a suit by the head of family for a declaration that a mortgage transaction touching a family farm is void and the subsequent sale of the said farm is also void.

This is an appeal from the judgment of the Amansie Local Court delivered on the 23rd November, 1960. That judgment dismissed a claim by the plaintiff for a declaration of title to a cocoa farm said to be lying at a place called Nsiena.

The facts of the case, to my mind, present no difficulty. It would seem that the farm in dispute was originally cultivated by a man called Opanyin Asare Kojo. He appears to have died intestate and by the canons of customary law, it became family property. A man whose name was given as Bekoe succeeded Asare Kojo and became possessed of the farm. Another member of the late Asare Kojo's family who in course of time succeeded Bekoe to this farm was a man called Kewuo. According to the first defendant both Bekoe and Kewuo raised a loan of G800 from him. After they had paid G100 the farm in dispute was mortgaged to him to secure the repayment of the balance of G700 due. The mortgage deed was tendered in evidence and was the subject of considerable criticism by counsel for the appellant. It was signed by Kewuo as mortgagor, and by Yaa Dentah, another member of the family, as surety.

It would seem that this debt was outstanding when both Bekoe and Kewuo died. The first defendant said the plaintiff and members of his family made part payment of the debt. I reckon this from the evidence to be G110. When the debt was reduced to G590 the plaintiff and his family by themselves raised a further sum of G50 from the first defendant. This sum was added to the original debt owed by their deceased predecessors, Bekoe and Kewuo, to make the debt amount to G640. The first defendant testified that he allowed the plaintiff and his family to pluck the cocoa from the farm mortgaged to him but they apparently used the proceeds for themselves and defaulted in paying the debt. Accordingly he exercised the power of sale conferred on him by the mortgage deed and sold the farm to the second defendant. The plaintiff complained that the sale was collusive and irregular and claimed to have it set aside, and the title of his family declared. The local court magistrate decided, so I read his judgment, that the plaintiff and his family ratified the mortgage transaction and adopted the debt, and proceeded to dismiss the plaintiff's claim.

Against that judgment, the plaintiff appeals to this court on ten grounds, two only of which were argued. The first ground of appeal was that the "Judgment of the local court magistrate is wholly and entirely against the weight of evidence". I confess that try as I may, I could not completely follow the argument that was urged in support of this ground. I understand it to be something like this. That Kewuo falsely swore an affidavit in which he claimed to be the owner of this farm. It was said that as the magistrate found that the farm was originally cultivated by Asare Kojo, he ought to have held the mortgage invalid. It was also said that the family did not know that Kewuo mortgaged the Nsiena farm in addition to his own farms. In my opinion, whether Asare originally owned the farm or not was not strictly of great importance. What seems to me material is the fact that at sometime in the history of this farm Kewuo on behalf of the family became possessed of it. Whether the farm was mortgaged in the first instance with the knowledge of the family or not, there was abundant evidence that after Kewuo's death members of the family became aware of this mortgage and by conduct clearly adopted it. The family clearly cannot be allowed to approbate and reprobate in the same breath. Contrary to the submission made by counsel on this ground, I am clearly of opinion that the evidence in support of the judgment is more than overwhelming.

The second and only other ground of appeal argued is that "the judgment of the local court magistrate is contrary to both British and customary law". This ground wholly involves an attack on the formal validity of the mortgage deed. It was contended that the document was neither a legal mortgage according to English law nor a pledge according to customary law. Counsel submitted therefore that being a purely informal transaction, a court order was a sine qua non to the sale.

The reasons why counsel argued that the document was not a legal mortgage were, if I understand him aright, these: firstly, the title of the mortgage was not recited; secondly, the testatum did not stipulate the time for repayment; and thirdly, that the mortgage did not contain a proviso for redemption. As an addendum, it was also said that the provision in the mortgage deed which enables the mortgagee to buy in the property in the event of a sale was a clog on the equity of redemption and avoids the whole mortgage.

I am prepared to accept the argument that this mortgage deed is not in conventional form and certainly does not reproduce the conveyancing technicalities of the old common law lawyers. This is, however, understandable because as counsel himself frankly concedes, it was not drafted by a professional draftsman. But the object of the document is plain beyond controversy. It is a conveyance of land as security for the payment of a debt. The debt for which the land was conveyed is stated as G700. The document used the word mortgagee and recited that the "mortgagee has to reconvey unto the mortgagor the three cocoa farms after full payment, etc." The habendum then "conveys unto the mortgagee", and the parcels described the farms. There is also the usual power of sale. I feel no doubt whatsoever that the deed is a legal mortgage of the farms. Indeed the very able argument of counsel runs counter to the basic tenet of equity jurisdiction, i.e. "equity looks to the intent rather than the form".

With regard to the equally confident submission that the right reserved to the mortgagee to "buy in" the farms at any sale by auction clogs the equity of redemption and avoids the whole mortgage, I feel certain that it is wrong. Such a power was expressly conferred by the Conveyance Act of 18811 and its successor section 101 of the Law of Property Act, 19252. If this submission be right all mortgages containing this clause (and there are very many in my experience) are void.

I agree not only with the conclusion of the local court magistrate but with the reasons which led to that conclusion. This appeal clearly fails and is dismissed. The appellant will pay the respondents' costs which I assess at 30 guineas.


<P>Appeal dismissed.</P>

Plaintiff / Appellant

S. A. Wiredu

Defendant / Respondent

Y. B. Amoatin


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