F. & M. Khoury & Ors V. Philip Said Azar & Ors (1952)
LawGlobal Hub Judgment Report – West African Court of Appeal
Consolidated appeals—Interpleader—Written agreement to secure repaymentof loan on chattels—Breach by debtor of covenant therein by assignment ofchattels to secure further debt to third party without notice to first lender—Defence (Control of Transfer of Used Motor-Vehicles) Order, 1943 (as amended)—Applicability thereof to transfer by way of mortgage—Whether mortgagor inpossession of mortgaged chattels holds them as trustee for mortgagee–Effectof non-registration under Kumasi Lands Ordinance, 1943, section 22—Positionof person paying off registered equitable charge and obtaining similar charge(which he fails to register) in his own favour—Gold Coast Supreme Court Rules,Order 44, rule 25 (1).
Facts
The facts are fully set out in the judgment.
Held
(i) that a mortgage of motor-vehicles was not a sale or purchase thereof within the meaning of the Defence (Control of Transfer of Used Motor-Vehicles) Order, 1943 (as amended).
- a mortgagor in possession of mortgaged chattels does not hold them ” not on his own account or as his own property but on account of or on trust for ” the mortgagee, within the meaning of Order 44, rule 25 (1) of the Gold Coast Supreme Court Rules, nor is the mortgagor, if he uses the chattels for profit, bound to account to the mortgagee;
- an equitable chargee must register his own charge under the Kumasi Lands Ordinance, 1943, in order to secure the validity thereof. Although he pays off, at the request of the debtor, a charge which is in fact registered and simultaneously takes a charge on the same property, he does not stand in the shoes of the paid-off chargee so as to be able to claim the benefit of that chargee’s registered charge.
Appeals from the West African Court of Appeal.
Judgements of the Supreme Court of the Gold Coast and of the West African Court of Appeal varied.
