F. & M. Khoury & Ors V. Philip Said Azar & Ors (1947)
LawGlobal Hub Judgment Report – West African Court of Appeal
Cross appeals—Interpleader action—Chattels and land seized in execution atinstance of judgment-creditor—Unregistered equitable charge on kind–KumasiLands Ordinance, section 22—Effect thereof—Waiver of lien by acceptance ofequitable charge—Agreement for loan on chattels—Defence (Control of Transferof Used Motor Vehicles) Order, 1943—Subsequent Bill of Sale to third partyon same chatiels—Validity—Priiyrities as between judgment-creditor and claimants.
Facts
The facts are fully set out in the judgment.
Held
(i) the signing of an undertaking by A, in consideration of B promising to pay off a debt owed by A, to have handed over to B title deeds of land at Kumasi, and to execute a proper legal mortgage, constitutes an equitable charge on the land;
- that therefore no equitable lien would arise by the subsequent payment of the moneys owed by A;
- any lien which arose from the payment by B of -A’s debt was raised or abandoned when the undertaking was given and could not be revived by the claimants being unable to avail themselves of a good and valid security by failing to register it;
- although the undertaking constituting the equitable charge was not registered pursuant to section 22 of the Kumasi.Lands Ordinance, the equitable charge was not thereby rendered null and voicf;
- a mortgage of motor-vehicles by way of Bill of Sale is a ” transfer ” within the meaning of the Defence (Control of Transfer of Used Motor Vehicles) Order, 1943, and, if made without the permission. prescribed by the Order, is void and of no effect.
Appeal by F. & M. Khoury dismissed.
