Mosalewa Thomas & Anor V. Kibitiyu Aleshinloye Williams & Anor (1944)

LawGlobal Hub Judgment Report – West African Court of Appeal

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.

Facts

Appellant, a licensed auctioneer, received instructions from respondents to sell some property, but these were withdrawn.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. On further appeal by plaintiff to the West African Court of Appeal :—

Held

that respondents not having pleaded that the authority to sell was null were debarred from so arguing.Held also, that that authority became binding by the mortgagees’ approval as well as by the redemption of the mortgage, and further that being coupled with an interest it was irrevocable.

The Appellants are awarded costs in this Court assessed at 18 guineas and in the Supreme Court assessed at 13 guineas.