James Latunde Aderoxit V. United Africa Company Limited (1941)
LawGlobal Hub Judgment Report – West African Court of Appeal
Respondents were Mortgagees in possession since 1921—High Court Judgment against Respondents for amount due in excess of mortgage account and order for re-conveyance—Questions as to periods for which rent paid to Respondents to be offset and as to quiet possession—also as to figure fixed as fair average monthly rent.
Held : Mortgagees must account for whole period during which property was in their possession except for the period where quiet possession was not given. Appeal allowed and order varied.
There is no need to set out the facts.
Case cited:—
Chaplin v. Young 55 E.R. 395.
Olatunii Martins for Appellant. F. H. Gosling for Respondents.
The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, PETRIDES C.J., GOLD COAST, GRAHAM PAUL, C.J., SIERRA LEONE.
The plaintiff-appellant’s amended writ is as follows: —
” The plaintiff claims from the defendants a sum of £2,052 15s &I ” being balance of amount owing and due to the plaintiff by the ” defendants for the use and occupation of plaintiff’s premises at Plot ” 13n at Zaria by defendants after deduction of amount owing and due ” by the plaintiff to the defendants on the Deed of Mortgage executed ” by the plaintiff in favour of the defendants at Zaria on the 7th day ” of September, 1921, as per particulars hereunder :—
” PeanculAns
” RentonpropertyMortgaged,September7th
” to 30th 1921 0 £15 per month
” October to December, 1921£15 per month …
“1922 to 1936, 15 years c£180 per annum…
” January, 1937 to September 30th,. 1937£15 per month
” let October to 14th October, 1937
” To Mortgage A/c£700
” Rent paid Government 1925-1931146
” and in the alternative the plaintiff claims from the defendants as
Mortgagees in possession (a) An account of amount due by him to the
defendants on the Mortgage Deed executed by him at Zaria on the ” 7th day of September, 1921.
” (b) An account of rents and profits received by the said ” defendants as mortgagees in possession on the footing of wilful ” default, from September, 1921, the date the said defendants entered ” into possession of the said hereditaments up to 14th October, 1937, at ” 2180 per annum.
” And let an annual vane of £180 by way of occupation rent be “Set on the said hereditament., whereof the defendants have been in ” actual or constructive occupation.
” And let the defendants be charged therewith in the total sum of ” £2,898 16s 6d in the said account of rents and profit*. And let what ” shall appear to be due in respect of such rents and profits including ” such occupation rent be deducted from what shall appear to be due ” to the defendants on the )said mortgage of 7th September, 1921, as ” aforesaid and/or vice versa.
” And let, upon the plaintiff paying to the defendants what shall ” be certified to remain due by him as aforesaid, after such deduction ” as aforesaid and/or let the defendants pay to the plaintiff whatever ” difference that shall appear to be due by them to him and also let ” the defendants in such case, reconvey to the plaintiff the said ” Mortgaged premises at the Trading Centre, Zaria, known as Plot No. ” 13D.
” Dated at Lagos this day of March, 1939.
” (Sgd.) OLATUNJI MARTINS ” Plaintiff’s Solicitor “.
The trial took place in the Kaduna Judicial Division of the High Court and the learned trial Judge gave ” judgment for the plaintiff” appellant for 2272 108 Od and order for Plot D. 13 Zaria to be ” reconveyed by the Mortgagees the defendants to the plaintiff, ” and forty guineas coats to plaintiff.”
The Judge arrived at the figure 2272 les Od in the manner shown in the following extract from his judgment.
s d
” Rent 4 £7 p.m. September to December, 1921 …26 10 0
41►Y11,
„ 1922 to 19341,092 0 0
IP
January to March 15th, 1935 …17 10. 0
7//7PPPI
21,136 0 0
” Less 2i months (January to March 15th, 1933) …17 10 0
£1,118 10 0
” Less mortgage debt and rents to Government846 0 0
2272 10 0
which I certify as the balance due.”
The appellant has appealed to this Court for the amount of Jame°
Latunde
£272.10s Od to be increased in three respects, viz :—Aderoku
- By allowing rent for the period, 15th March, 1935—v.
14th October, 1937, the first date being the date upon AfrUntead which he became entitled to possession by order of Company . Court and the second date being that on which the respondents actually gave up possession. - By increasing the sum of 27 fixed by the learned trial Petridee and
Judge as a fair average monthly rent.Grab Paul
- By allowing rent for the period January to March c•n. • 15th, 1933.
As to (1) we are of opinion that the appellant must succeed; it is well established law that a mortgagee must account for the whole period during which he continues in posiession. (Chaplin v. Young 55 English Reports 395 at p. 398.)
As to (2) we are not prepared to vary the learned trial Judge’s decision as to what was a fair average rent arrived at after a very careful consideration of all the evidence, although in fairness to the appellant it may be pointed out that the figure of £7 given by Mr Soremekun before the Referee was for part of the premises only, and that in arriving at what he describes as a ” mean ” of the figures given by the witnesses the learned trial Judge seems to have treated some of the evidence as to rent– fOr part of the premises as though it were for the whole.
As to (3) we think that the learned, trial Judge was right to disallow the claim for the short period in question as during it the plaintiff-appellant did not give quiet possession-
in the result the judgment for the plaintiff-appellant must be increased by the value of rent at £7 a month for thirty-one months or £217.
The appeal is allowed and the judgment of the Court below is varied by altering the figures of £272 108 Od therein contained to the figures of £489 10s Od and the appellant is awarded costs in this Court assessed at sixty guineas.
