Kwasi Akyeampong as successor to Kwanbena Nkromah V. Kwaku Atakora & Ors (1952)

LawGlobal Hub Judgment Report – West Africa Court of Appeal

Mortgage—Sale without due notice.

Facts

Appellant’s predecessor in title (deceased K.N.) mortgaged three farms to the respondent Kwaku Atakora by deed containing a power of sale with a proviso that this power shall not be exercised unless there was default in payment “on demand, and also for . . . one month next, after a notice in writing requiring such payment shall . . . have been given” (full text in judgment below).

The loan was £220, repayable after a certain time, but before that time was up the
respondent (Kwaku Atakora) gave the appellant (as successor to the deceased) notice to pay, and without further notice the farms were sold, after the date on which payment was due, for £378.

There were two other mortgages already due for payment, one for £225 in favour of K.E., the first co-defendant, and the other for £48 in favour of K.A., the second co-defendant.

The respondent Kwaku Atakora and the first codefendant paid off the second co-defendant, and shared the proceeds of sale.

The appellant (as plaintiff below) sued the respondent Kwaku Atakora (as defendant) claiming £158 (viz. £378, the proceeds of sale, less £220 due to this defendant) which would have been the balance but for the other mortgages, or in the alternative to set aside the sale or to have damages.

That defendant caused the other three co-defendants (the third being the auctioneer) to be joined. The trial Judge dismissed the claim.

The plaintiff appealed and his main ground was that the notice of intention to sell was not legal or proper in that when it was given the debt was not due for repayment under the mortgage deed, and the sale was therefore wrongful.

Held

The proviso in the deed meant that if on the date on which repayment was due, after demand, the debt was not paid, then the mortgagee, if he wished to exercise the power of sale, must give notice in writing requiring payment and could only sell if there was default for a month after notice. The sale was therefore wrongful, but as the sale took place about three months after the due date and there was no evidence that the appellant could have repaid the debt or that he suffered any damage from the wrongful sale, his appeal would be dismissed.

Appeal dismissed.