–
MOSALEWA THOMAS
V.
KIBITIYU ALESHINLOYE WILLIAMS AND ANOTHER
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
27TH DAY OF OCTOBER, 1944
2PLR/1944/69 (WACA)
OTHER CITATION(S)
2PLR/1944/69 (WACA)
(1944) X WACA PP. 261 – 263
LEX (1944) – X WACA PP. 261 – 263
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
HARRAGIN, C.J., GOLD COAST
FRANCIS, J.
–
BETWEEN:
MOSALEWA THOMAS, CARRYING ON BUSINESS IN THE NAME OF A. W. THOMAS & CO – Plaintiff-Appellant
AND
1. KIBITIYU ALESHINLOYE WILLIAMS
2. FATAYI ALESHINLOYE WILLIAMS – Defendants-Respondents
–
REPRESENTATION
Oladipo Moore — for appellant
Omoliyi Coker — for respondents
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
COMMERCIAL LAW – AGENCY:- Mortgagor and Auctioneer – Mortgagor’s withdrawal of authority to sell coupled with an interest – Ratification by mortgagee-Redemption of mortgage – Pleadings and their effect on closing argument
–
CASE SUMMARY
Appellant, a licensed auctioneer, received instructions from respondents to sell some property, but these were withdrawn. He had advanced them £11 10s. against the sale and spent £7 17s. 6d. in connexion with the sale; so he sued them for those two sums plus £35 10s. 9d. as commission he would have earned. Before the Magistrate he was only allowed the sum advanced. On appeal by him the Supreme Court Judge did not accede to his claim for expenses and commission holding that his authority was originally bad as respondents were mortgagors who could not sell more than the equity of redemption. This point was taken on their behalf for the first time in counsel’s closing address before the Magistrate. In fact appellant had obtained the mortgagees’ written approval a few days after respondents instructed him to sell; and the respondents had redeemed the mortgage before the sale. A further appeal was then brought by plaintiff to the West African Court of Appeal.
DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held that,
1. respondents not having pleaded that the authority to sell was null were debarred from so arguing.
2. that authority became binding by the mortgagees’ approval as well as by the redemption of the mortgage and that being coupled with an interest it was irrevocable.
–
–
MAIN JUDGMENT
The judgment of the Court was delivered by Francis, J:
This case originated in the District Court of Lagos where the Plaintiff-Appellant a Licensed Auctioneer of Lagos claimed the sum of £54 18s. 3d. made up as follows:
£11 10s. 0d. cash advanced against the sale of Defendants-Respondents’ properties known as No. 11 ljaiye Street, Lagos and a farm at Obere Otta;
£7 17s. 6d. out-of-pocket expenses incurred in connection with the said sale; and
£35 10s. 9d. commission which Appellant would have earned had the sale been effected.
Judgment was given for the Appellant for the sum of £16 15s., that is to say for the amount advanced which was admitted, together with £5 5s. representing the expenses incurred in the sale of the Otta farm. The claim for commission and expenses in connection with the sale of the house at 11 Ijaiye Street was dismissed on the grounds that Respondents had withdrawn the instructions to sell.
Against this judgment the Appellant appealed to the Supreme Court but the learned Judge while upholding Appellant’s contention that the authority to sell coupled as it was with an interest was irrevocable dismissed the appeal on the grounds that the Respondents being mortgagors of the property had no power to sell more than the equity of redemption, and consequently the original authority was bad and could not be the basis of an action.
The two main grounds on which Appellant relies in this Court may be summarized as follows:-
1. That Respondents not having pleaded the invalidity of their instructions to sell were barred from raising such a defence at the trial; and
2. That even if the defence was properly allowed to be set up the decision of the learned Judge in the Supreme Court upon the point was wrong since he failed to deal with the real question at issue which was not whether a mortgagor could sell only the equity of redemption but whether the authority to sell was binding on the Respondents.
As to the first point the Respondents by their pleadings admitted giving instructions to the appellant to sell without any suggestion that those instructions were bad and so amounted to no instructions at all. The first time the point was raised in the Magistrate’s Court was by Respondents’ Counsel in his closing address. We think that such a defence could not be raised for the first time at that late stage and that the Magistrate was quite right to ignore it in his judgment and that the learned Judge in the Supreme Court was wrong to allow it to be argued before him and to uphold it.
As to the second ground the position appears to us to be as follows:-
Even though the Respondents as mortgagors had no power to authorise the sale on the date they did without the consent of the mortgagees, if the authority given had the approval of the mortgagees, it was valid. In this Court Appellant’s Counsel asserts that the Respondents did have the mortgagees’ verbal approval before giving the authority and if the validity of the authority had been questioned on the pleadings he would have led evidence to prove this; further the Appellant a few days after the authority obtained the mortgagees’ written approval and on the authority of Blackburn Union v. Brooks (1877) 26 W.R. at p. 57 approval within a reasonable time makes the authority binding. Further the Respondents by redeeming the mortgage before the sale acquired the necessary power to give the instructions and were automatically bound (See Fry on Specific Performance (6th Edition) p. 464.
It is well-established law that an authority coupled with an interest is irrevocable and the Respondents had no power to withdraw it.
For these reasons the appeal is allowed the judgment of the Supreme Court, including the order as to costs, is set aside and it is ordered that any sum paid in respect thereof shall be refunded; it is ordered that the judgment in the District Court be amended by substituting “£54 18s. 3d” for “£16 15s.” as the amount awarded to the Plaintiffs and “£8 8s.” for “£5 5s.” as the amount of costs awarded. The Appellants arc awarded costs in this Court assessed at 18 guineas and in the Supreme Court assessed at 13 guineas.
–