AVRIL LOVELACE – JOHNSON (JA)

The Plaintiff /Appellant by their amended writ made a claim for ;

a) SPECIAL DAMAGES

i) Loss of daily income of GH₵1,200 each of the six Volvo Trucks from the date of seizure till date of final release,

ii) Wages of drivers and their assistants

iii) Cost of servicing and reactivating of the Volvo Trucks

b) General damages of unlawful execution

c) Exemplary and punitive damages

d) An order setting aside the attachment and execution as being irregular and contrary to the Mortgages Act and for want of jurisdiction .

e) An order restraining the defendants herein, their agents, servants, workers or any person(s) authorized by them from proceeding with the execution of the Mortgaged property pending the final determination of the suit.

f) Cost.

This claim was denied by the Defendant Respondents per their statement of defence and the following issues set down for determination; 

a) Whether or not the attachment of the mortgage property through Fifa is irregular, unlawful, wrongful and contrary to the Mortgages Act.

b) Whether or not the Court lacks jurisdiction in respect of the execution by defendants.

c) Whether or not the wrongful execution has caused any loss to plaintiff.

d) Any other relevant issues arising from the pleadings.

Thereafter the Court set the said issues down for determination by legal arguments. The ruling on the matter went against the Plaintiff Appellants. They being dissatisfied have launched the present appeal. Hereon, the parties will be referred to simply as the Appellants and Respondents respectively. The grounds of appeal filed by the Appellant are as follows;

a) The trial judge erred in law in failing to hold that the attachment of Plaintiffs/Appellants mortgaged properties is in violation of the Mortgages Act (NRCD 96).

b) The trial judge erred in holding that Plaintiffs/Appellants’ Counsel is just using technicality to evade their contractual obligation.

c) The ruling is against the weight of evidence.

No additional grounds were filed in fulfillment of the fourth ground of appeal that additional grounds would be filed upon the receipt of the record of appeal.

Counsel for the Respondent urges the Court to strike out grounds i and ii on the grounds that they offend Rule 8(4) of the Court of Appeal Rules C I 19 as amended. The said rule states as follows;

“Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”.

The rationale of the rule has been stated to be that

“…..a person who is brought to an appellate forum to maintain or defend a verdict or decision which he got in his favour must understand on what ground it is impugned” Per Kpegah JA (as he then was) in the case of Zambrama v Segbedzi [1991] 2 GLR 221

The question then is “Do the two grounds as formulated give the Respondent the needed particulars as to the alleged errors committed by the trial Court?”

It is our considered opinion that ground (i) as formulated does give sufficient particulars of the alleged error complained of but ground (ii) does not. The latter ground is hereby struck out.

The third ground of appeal is that the ruling is against the weight of evidence. The record shows that no evidence was led at the trial. It seems undisputed that the suit was determined by legal arguments on an issue set down for determination. The authorities establish that under a ground of appeal such as the present, 

“…the appellate court has jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts” Per Akamba JSC in the case of Republic v Conduah; Ex Parte AABA (substituted by) Asmah

The duty of an appellant in such circumstances will be to point out any factual lapses in the ruling or judgment in question. The written submissions of counsel for the appellant are all on legal grounds. This is not surprising since the case was decided on a point of law. In the circumstances we agree with counsel for the Respondent that this ground of appeal is not appropriate in the circumstances of this case. It is struck out.

The process of execution, which lies at the heart of the suit which has culminated in the present appeal was the consequence of a consent judgment entered into by the parties in an earlier suit. The suit in question had been instituted by the Respondents against the Appellants for the recovery of an amount loaned to them with the interest thereon. The said loan had been secured by some Volvo trucks and a parcel of land. The parties came to a consensus and filed terms of settlement which was adopted as a consent judgment. Upon default in payment by the Appellants, the Respondents went into execution.

The Appellants then filed the present suit to set aside the execution on the basis that it was wrongful because it had been done through fifa and so was contrary to the provisions of the Mortgages Act. They do not deny owing the Respondents. They do not impugn the consent judgment upon which the alleged “irregular, unlawful or wrongful execution” is based.

What is the basis of their position? The essence of the submissions of counsel for the appellant is that the properties in question, having been used to secure the loan taken by them from the Respondents, it is the provisions of the Mortgages Act 1972 [NRCD 96] which should apply. In this case, counsel contends that section 16 (which provide for the appointment of receiver), section 17 (which provides for possession) and section 18 provides for judicial sale) were the only options open to the Respondents to use to realize the mortgage property. Having failed to use any of these options, the process of execution embarked upon on the instructions of the Respondents is void. Counsel draws the court’s attention to the fact that the provisions of, The High Court Civil Procedure Rules C I 47 being a general law cannot override the provisions of the Mortgage’s Act which is a specific law dealing with Mortgagees.

Counsel for the Appellants states at page four of his submissions that the action brought by the Respondent by his writ issued on 19^th May 2010 was not a mortgage action. The first point to be made in this matter is that by virtue of section 1 (1) of the Mortgages Act, the attachment of the Appellants six Volvo trucks being movable property are not covered by the Act. The said section states as follows

“A mortgage for the purposes of this Act is a contract charging immovable property as security for the due repayment of a debt and the interest accruing the debt or for the performance of any other obligation for which it is given, in accordance with the terms of the contract”

The seizure of the said Volvo cars for execution cannot therefore be impugned on the grounds that the case whose judgment led to the said execution was not a mortgage action.

Regarding the recourse of the mortgagee upon failure of the mortgagor to perform an act secured by the mortgage, Section 15 (a) and (b) of the Mortgages Act state as follows

a. sue the mortgagor or obliger or both of them on a personal covenant to perform, or

b. realize the mortgagor’s security in the mortgaged property in all or any of the ways provided in this Act and in no other way despite a provision to the contrary in the mortgage.

The use of the word OR shows that the mortgagee has two options under this section. Under subsection (a), he has the option of suing a mortgagor or obligor or both on a personal covenant to perform. When he exercises this option, he is NOT fettered in the manner he would be were he to exercise option (b) ie he is not bound to realize his security in the mortgaged property only in the ways listed in the Act. The ‘ways’ referred to in this section appear to be Appointment of receiver under sections 16, Possession under section 17 and Judicial sale under section 18 of the Act. The point we seek to make is that an action brought under section 15(a) which is not bound to utilize sections 16, 17 and 18 for enforcement is a mortgage action.

Respondents sued the 1^st Appellant as the beneficiary of a loan and against the 2^nd and 3^rd Appellants as the guarantors of the said loan with interest thereon. It is worthy of note that the said action meets all the requirements of Order 59 r 3 of C I 47. That rule is applicable to a moneylender or mortgage action. In any case, there is by law no special format for bringing a mortgage action under section 15(a). What is important is for the said action to satisfy the relevant provisions of C I 47 and as stated earlier those requirements were met by the action brought by the Respondent. The Respondent could have added an alternative claim for judicial sale in their statement of claim. They chose not to do so. That does NOT mean the action was NOT a mortgage action.

The Appellants entered appearance to the action filed by the Respondents, filed a statement of defence and entered into a Consent judgment with the Respondents. It is clear from that judgment that they were represented by their present counsel. Paragraph 4 of the said Consent Judgment states as follows

“It is hereby further agreed that in the event of Defendants failure to make monthly installment payments on any due date stated herein, the balance due on the outstanding balance including suspended interest at the rate of 32% per annum shall become due and immediately payable whereupon the Plaintiff shall be entitled to levy execution for recovery of the sum with interest until the date of final payment.”

In accordance with this provision, the Respondents chose to go into execution by a writ of fifa as allowed by Order 45 rule 1. (1). Again in accordance with the rules pertaining to execution, the movable and then when these were found insufficient, immovable properties of the Appellants were attached. See the last page of the written submissions of Counsel for the Respondents.

The Appellants are NOT saying the properties in question are not theirs. They are NOT denying their debt. Their complaint in short appears to be that because the particular properties attached are the subject matter of a mortgage between them and the Respondents in relation to the monies in question, notwithstanding the consent judgment obtained, the Respondents could only have and should have proceeded under sections 16, 17 and 18 of the Mortgages Act.

We have already found that the action brought by the Respondent was a mortgage action so the question of the provisions of the Mortgage Act overriding the general provisions of C.I. 47 does not arise. Had we even not so found, accepting this argument will not only be contradictory to the terms of the consent judgment signed by the Appellants, it will also result in unnecessary litigation and waste the time of both the parties and the court. It will be a sterile process which will only delay and prevent the Respondents who have obtained judgment from enjoying the fruits of their labour. It is even more important to prevent such a fruitless exercise when the subject matter is a commercial one.

For all the above reasons, we find that the ground of appeal that the judge erred in law in failing to hold that the attachment in question was in violation of the Mortgages Act 1972 [NRCD 96] has no merit and fails. It is hereby dismissed.

In conclusion this appeal fails in its entirety and is dismissed.

Costs of GH¢5,000.00 in favour of the Respondents.