Federal Administrator–General & Ors Vs Paul William Cardoso & Ors (1973)

LawGlobal-Hub Lead Judgment Report

ELIAS, CJN

This is an appeal from the judgment of Somolu, J., delivered at the Ikeja High Court on July 4th, 1966, in which the plaintiffs sought the following remedies: “(a) A declaration that the equity of redemption of the mortgagor, L.A. Cardoso, in the property situate lying and being at Awodi-Ora in the Apapa District of Western Nigeria has become extinguished and that the fee simple thereof is now vested in the estate of St. Matthew Daniel, deceased.  (b) £50 damages for trespass committed on the said land.” (c) Perpetual injunction restraining the defendants, their servants, agents or workmen from further acts of trespass on the said land.” The action was commenced by the plaintiff alone as the administrator of the estate of St. Matthew Daniel, deceased, but shortly after the close of the case for the plaintiff, leave was granted to join the twelve surviving children of the deceased mortgagor as plaintiffs. The first defendant was sued as the eldest son and heir of L. A. Cardoso, deceased, and representing the other children of the said Cardoso.

Pleadings were ordered and filed by both sides. The first plaintiff gave evidence and called fourteen witnesses, while the first defendant gave evidence and called two witnesses after their counsel had chosen not to call evidence in respect of the claim for damages for trespass since the matter had not been pursued by the plaintiffs. The admitted facts were as follows. On August 31, 1922, Cardoso became seised in fee simple of a piece of farm land in Awodi-Ora, Apapa Ajegunle. On August 27, 1924, he mortgaged the farm to Daniel for £60 with interest. According to the deed of mortgage (Exhibit 7) the loan was repayable within two months of the execution of the deed. Cardoso died intestate in Lagos on February 17, 1940, and Daniel later died also intestate on April 25, 1948.

The claim of the plaintiff is that Cardoso did not redeem the mortgage before his death, that Daniel the mortgagee went into possession in 1933, and that he remained in possession until his death on the farm in 1948. Under Section 7 of the Real Property Limitation Act, 1874, the mortgagor is barred after twelve years in possession by the mortgagee unless within that period a written acknowledgement of the existence of the mortgage is made by the mortgagee. Upon the expiry of the twelve years the mortgagee becomes the absolute fee simple owner of the property. Section 7 provides as follows: “When a mortgagee shall have obtained the possession or receipt of the profits of any land or the receipt of any rent comprised in his mortgage, the mortgagor, or any person claiming through him, shall not bring any action or suit to redeem the mortgage but within twelve years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgement in writing of the title of the mortgagor, or of his right to redemption, shall have been given to the mortgagor or some person claiming his estate, or to the agent of such case no such action or suit shall be brought but within twelve years next after the time at which such acknowledgement, or the last of such acknowledgements, if more than one, was given.” PAGE| 3 The plaintiffs, accordingly brought an action on October, 12, 1964, for a declaration that Cardoso’s equity of redemption has become extinguished and that the property has vested in Daniel’s estate. On the other hand, the mortgagor’s case is that the debt had been repaid in full before Cardoso’s death in 1930, but that there had been no reconveyance by Daniel to Cardoso because, the defendants alleged, Daniel persistently put off Cardoso’s children when asked for it. The defendants denied that Daniel ever went into possession. In his judgment, the learned trial Judge held that the mortgage debt and the interest thereon had been paid by the defendants and that Daniel did not go into possession. He, therefore, refused the declaration sought by the plaintiffs and dismissed the claims for trespass and injunction.  The present appeal has been brought against this judgment on the following ten grounds: “(1) The learned trial Judge erred in law and in fact in failing to decide whose caretaker Sanni Bale was after he had stated that ‘the question whether or not Sanni Bale ever became Daniel’s caretaker on the land is tied up with the issue whether or not he took possession of the land’ as the point is very important and as the whole case turns on it. (2) The learned trial Judge misdirected himself in law and in fact in that he wrongly held that Daniel’s omission to claim his mortgage debt on Cardoso’s death was corroboration of Adelaine Reis’s evidence when by that time the legal right to redeem had lapsed and what remained was only the equitable right to redeem which could only be initiated by Cardoso’s Administrator. (3) The learned trial Judge erred in law and in fact in that he failed to evaluate Adelaine Reis’s evidence standing by itself without corroboration after he had held that the evidence ‘seems rather weak and if it had stood alone, I may have some doubt about it.’ (4) The learned trial Judge erred in law and in fact by holding that certain contradictions between the plaintiffs’ witnesses to be unaccountable ‘except on the incorrect basis that they had come to court to lie’ when in fact the contradictions were capable of an innocent explanation. (5) The learned trial Judge erred in law and in fact in holding that the plaintiffs’ witnesses had transferred to Awodi-Ora farm events which had taken place at Kirikiri farm without taking into account that the late Daniel did not buy Kirikiri farm until 1940 which was nearly half-way through the period 1933 to 1948 then being considered by the learned trial Judge and did not include any of the dates mentioned by the witnesses. (6) The learned trial Judge misdirected himself in law and in fact by basing his rejection of the plaintiffs’ witnesses’ evidence on their silence concerning the land at Kirikiri when in fact Kirikiri was not in dispute and was not relevant to the action before him and further when the witnesses were not asked questions about this. (7) The learned trial Judge erred in law and in fact in that after rejecting 1933 as the date when the late Daniel went into possession of Awodi-Ora farm, he failed to consider whether he went into possession at a later date so as to complete the period of 12 years’ possession by the late Daniel and his successors ending after Daniel’s death. (8) The learned trial Judge misdirected himself in law and in fact by failing to take into account acts of ownership by Daniel’s administrators and heirs, viz, the sale of land for the Roman Catholic Mission in 1960, the surveys of 1958 and 1964, and the division of the land among the children etc. from which possession ought to be inferred. (9) The learned trial Judge erred in law and in fact in wrongly rejecting the whole evidence of the plaintiff’s witnesses Nos. 4 to 7 and 7 to 11 and failed to consider the effect of the evidence of the remaining plaintiffs’ witnesses. (10) The decision is against the weight of evidence.” Mr. Sofola, learned counsel for the appellants, asked for and was granted leave to argue all the ten grounds together. He submitted that the test to apply in determining whether or not a mortgagee has gone into possession must depend on the circumstances of each particular case. Thus in Richard Kirby v. John Cowenroy (1912) AC 599 the parcel of land in question was wild bush and, on its being shown that the mortgagee only paid the rates on the land without going into physical possession of it, it was considered sufficient to hold that the mortgagee was in possession for the purposes of the law. The Privy Council made this observation at page 603, ibid “On the general subject of possession, the language of Lord O’Hagan in The Lord Advocate v. Lord Lovat (1) – language cited with approval by Lord Macnaghten in Johnson v. O’Neill (2) – appears to be applicable to the present case. Possession ‘must be considered in every case with reference to the peculiar circumstances …. the character and value of the property, the suitable and natural mode of using it, the course of conduct which the proprietor might reasonably be expected to follow with a due regard to his own interest; all these things, greatly vary as they must under various conditions, are to be taken into account in determining the sufficiency of a possession.” Now, it is settled law that a mortgagor has two types of rights, one legal and the other equitable; there is his legal right to redeem his property on payment of capital and interest to the mortgagee on the contractual date, and there is his equity of redemption which is an equitable interest arising as soon as the date for repayment is past and no payment has been made by the mortgagor. According to the deed of mortgage (Exhibit 7) the mortgagor’s legal right terminated on or by October 27th, 1924, that is, two months after the date of the mortgage and, as there has been no redemption in the meantime, the equitable right of redemption arose from that moment.

If then the mortgagor intends to redeem his property, he must take the initiative to bring an action for redemption. It is not for the mortgagee to make the first move unless he wants his money back quickly; he may decide to sit back and wait until the mortgagor’s claim becomes statute-barred, or he may sue for foreclosure or he may exercise his right of sale of the property, in the two latter cases by action at law.  Applying these principles to the present case, the learned counsel submitted that, in determining the question of whether or not the mortgagee went into possession, the two relevant issues are: (a) to whom were the palm-wine tappers and the tenant-farmers on the land paying their rent for its use, and (b) whose caretaker was Sanni Bale Sule? It is his submission that the learned trial Judge did not resolve these issues, even though there is evidence that Sanni Bale Sule lived on the land until his death in 1964 and also that both sides agreed that Sule granted leases which enabled a number of houses to be built on the land. The issue of possession could only be resolved by the learned trial Judge deciding for whom Sule was acting and to whom he was accounting for the proceeds of the leases he was granting. It was the plaintiffs’ case that Sule was their caretaker, but that when he was caught in 1950 making unauthorised dispositions of portions of the land, they sacked him and appointed Agunbiade (P.W.11) in his place as caretaker.

Mr. Sofola complains that the learned trial Judge only dealt in his judgment with the period 1933 to 1948 and that this is clearly wrong because acts of possession on behalf the estate of Daniel are relevant in deciding whether or not the twelve-year period has extinguished the mortgagor’s equity of redemption. It was his contention that the judge seemed bent on finding against the plaintiffs at all costs, and that this is evidenced by his rejection of the evidence of plaintiffs’ witnesses on the question of possession by the mortgagee and his ready acceptance of the evidence of Mrs. Reis (D.W. 1) that she and two of her deceased aunts had been sent by their father to repay the loan and interest in 1930. The receipt allegedly given by Daniel for this payment, which receipt this witness alleged she had read out to their ailing father on their return to his house, was never produced. The learned trial Judge nevertheless said that he found corroboration of this witness’s evidence in the failure of Daniel to put in a claim for his debt in 1940 when notices were published inviting all creditors to submit any claims they might have against Cardoso’s estate. We agree with learned counsel for the appellants that, had Daniel put in a claim in 1940 as suggested by the learned trial Judge, he would have thereby made the acknowledgment which Section 7 of the Real Property Limitation Act, 1874 says would destroy his right to the absolute estate within the statutory twelve year period. Daniel had been right to have avoided falling into such a trap We are surprised to note that no-one seemed to have insisted at the trial on the production of the alleged receipt which Daniel allegedly gave to Cardoso in 1930 as evidence of the repayment. The learned trial Judge also rejected plaintiffs’ contention that Daniel did enter into possession in 1933 as claimed, but he failed to decide whether Daniel did enter into possession subsequently, or whether the twelve-year period had ellapsed. Learned counsel contended that the reasons given by the learned trial Judge for rejecting the evidence of plaintiffs’ witnesses are unsatisfactory, and that he had not stated anywhere in his judgment that he was taking advantage of having seen the witnesses. PAGE| 6 He submitted that, in these circumstances, a court of appeal should intervene in the findings of fact by a lower court which are clearly unreasonable, and should come to its own conclusions on the basis of the record before it. Our attention was drawn to the Supreme Court decision in Fatoyinbo v. Williams (1956) 1 FSC 87, particularly the following passage: “The appeal is accordingly one on facts and the principles on which a Court of Appeal acts in such appeals are succinctly stated thus in the opinion of Lord Thankerton in Watt or Thomas v. Thomas (1). I. Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion in the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason on having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion; II. The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion in the printed evidence; III. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.’ For these reasons, applying the principles in Watt or Thomas v. Thomas, it seems to me that as the learned Judge did not, in coming to his decision, rely on the advantages of having seen and heard the witnesses, and as some of the reasons which he gave for his decision have been shown to be erroneous, I think that his appeal falls within the first and third of Lord Thankerton’s propositions above quoted. It is, therefore, open to this court to examine all the evidence in the suit and decide whether the relationship claimed was established.” It is to be noted that the learned trial Judge himself raised the crucial question relating to possession when he observed as follows: “The question whether or not Sanni Bale ever became Daniel’s caretaker on the land is tied up with the issues whether or not he took possession of the land in dispute. There is a lot of evidence that Daniel was visiting this farm and was taking fruits like coconuts and cashew nuts away from it over a long period, i.e., between 1935 and 1948,…….” It does not appear that the learned trial judge ever dealt with this point later in his judgment. Again, the learned trial Judge made the following observation with reference to the evidence of Mrs. Reis, (D.W.1):“Let me now turn to the defence, and see what happens.

It was averred that Cardoso had paid the mortgage debt since 1930, but it is only the evidence of Adelaine Reis, 1st D.W. that we have for it. It must not also be forgotten that she is Cardoso’s daughter, with a lot at stake in this case, as also Daniel’s children. I cannot resist the conclusion that her evidence on the point seems rather weak, and if it has stood alone I may have some doubts about it.” He nevertheless misdirected himself in accepting the evidence of this witness by finding corroboration for it in the failure of the mortgagee to claim as creditor of the estate in 1940. It seems to us that the learned trial Judge should have evaluated Mrs. Reis’s evidence by itself, instead of speculating as to what must have happened, and thereby making an entirely different case for the defendants on his own when he observed: “………but I have noticed the significant agreement among these witnesses to keep silent about what Daniel was doing on his 400 acres of land at Kirikiri. Was he visiting that land at all, since it was adjacent to the land in dispute? I think that that is what has happened in this case.” It seems clear to us that the learned trial Judge disbelieved the plaintiffs and their witnesses by making his own inference after referring to other land not in dispute. We think that the plaintiff’s witnesses were right to have been silent with respect to the other land not in dispute. Learned counsel also submitted that Sanni Bale Sule was throughout the plaintiff’s caretaker and that such discrepancies as there were in the evidence of two or three of their number with regard to the dates of visiting the farm and such matters could be attributed to the internal family quarrel among them and the obvious passage of time.

Thus it was that Sanni Bale Sule was replaced by Agunbiade as a result of this quarrel in which the caretaker became involved. It seems evident from Exhibit 8, which was an action in the High Court at Ikeja, that there was a quarrel among the twelve children of Daniel before the land was divided into thirteen portions. Chief Williams, learned counsel for the respondents, conceded that both sides, including the learned trial Judge, had introduced a number of irrelevant factors into the case, and submitted that he would concentrate on the vital question as to whether or not the mortgagee ever entered into possession. It is his submission that the plaintiffs have failed to prove that Daniel took possession in 1933 as averred in the plaintiffs’ final amended statement of claim; and that the learned trial Judge is right to have rejected the evidence of the plaintiffs and their witnesses. He submitted that the plaintiffs’ claim is founded on Section 7 of the Real Property Limitation Act, 1874, and that they must succeed in this appeal only if they are able to satisfy us that they are in possession of the land in dispute.

Learned counsel contended that the learned trial Judge had resolved the conflict regarding whose caretaker Sanni Bale Sule was, and that he decided that he was Cardoso’s caretaker.  We are unable to accept this finding of the learned trial Judge since there is evidence that Agunbiade (P.W. II) said categorically that “Sanni Bale Sule was Daniel’s caretaker.” We think that the judge’s evaluation of the totality of the evidence led before him would seem to have been coloured by his too-ready assumption that the debt had been paid in 1930 as alleged by the defendants. He would appear to have become impatient with the plaintiffs’ testimony and that of their witnesses mainly on this account. This is clear from the following passage: “I am satisfied that Cardoso had paid off his debts to Daniel before his death in 1940.

I accept the evidence of the 1st D.W. On the whole, I find it difficult to believe the evidence of the 10th P.W. as to her going to the farm with Daniel in 1935 because it is so unreliable, and I also reject the other evidence of possession of the land by Daniel in 1935 or earlier, led on behalf of the plaintiffs. I formed the impression that such evidence was concocted to support the claim in this case.” We are satisfied that Daniel went into possession of the land in 1933, a fact confirmed by Stephen Ileogben (P.W.5) who, under cross-examination by the defendants’ counsel, said: “The palm-wine tappers were coming to Lagos pay their rents regularly from 1933 and I had no need to go to the farm to collect the rents. I used to give receipts to the tappers since 1933.” This evidence would also seem to have been indirectly supported by counsel for the defendants in his final address to the trial court when he said: “There is evidence that even as early as 1935 and after, Daniel was deriving rents and collecting fruits from the land, and all these have not been accounted for. They should go to reduce the interest and capital. No account has been produced.” As against the evidence of D.W.1 on the question of repayment of the debt, we have the following testimony of Paul Cardoso (1st Defendant): “My father never told me that he mortgaged the land in dispute to the late Daniel.

I was in Lagos till 1931 when I went away to Sierra-Leone. I came back in 1935. I first heard of the mortgage in 1959 when I went to speak to the late Bishop Taylor. I spoke to my brothers and sisters about it and one of them, 1st D.W., told me that the debt had been paid. ….. 1st D.W. told me that Daniel gave a receipt for the money paid him for the mortgage of the land in dispute, and promised to see my father about the return of the mortgage deed. After the death of my father, we looked for the title deeds of his properties but we did not find them. At that time, my aunt Mrs. Silica was dead and 1st D.W. was not in Lagos, but my other aunt, Mrs. Lewis, was in Lagos. When I mentioned that I did not find the title deeds of my father’s lands at Apapa, Mrs. Lewis did not tell me of the payment to Daniel.” We are of the view that, if the judge had rightly rejected the testimony of Mrs. Reis (D.W.1), he would have come to the conclusion that the defence was unsatisfactory and should have believed the evidence of plaintiffs’ witnesses as to possession. We also think that there is some consistency in the story of continuous possession told by the plaintiffs in the fact that the Death Certificate (Exhibit 11) is evidence that St. Matthew Daniel died on the farm. We have, therefore, come to the conclusion that, on the failure of the defendants to redeem the mortgage, Daniel went into possession in 1933 and that, by virtue of Section 7 of the Real Property Limitation Act 1874, which is a statute of general application in Nigeria, the plaintiffs have acquired an indefeasible title as against the defendants whose equity of redemption had become extinguished by the time the plaintiff’s first filed their action in 1964.

The appeal accordingly succeeds, and it is allowed. The judgment of Somolu J., in Suit No. IK/134/64 delivered on July 4th, 1966 is hereby set aside, including the order as to costs. We award costs to the appellant which are assessed at N300 in the court below and at N104 in this court.

Other Citation: (1973) LCN/1665(SC)