S. O. Nwabuoku V Ottih P. N. (1961)

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ADEMOLA, C.J.F

This is an appeal against the judgment of Sanisbury, J. sitting in the Southern Cameroons, dismissing the plaintiff’s claim for an account of the rent collected by the defendant from June 1955 to July 1960, at £7 per month as the mortgagee of a property known as 143 Botanical Garden, Victoria, Southern Cameroons. Plaintiff also claimed to have payment of the amount found due to him on the taking of the account. In default of such account the plaintiff claimed that the amount of £423-10s-0d had been so collected during the period and that he was entitled to the sum of £303-9s-0d after a deduction of the mortgage debt of £120-1s-0d. An injunction to restrain the defendant from collecting further rents on the property was also sought.

In his amended defence the defendant denied he was a Mortgagee to the plaintiff with respect to the property so mentioned in his Claim, but stated that on 24th June, 1955, he made a friendly loan of £120-1s-0d to the plaintiff who thereby pledged a house to him, the pledge being redeemable on payment of the loan. He denied he was an accounting party to the plaintiff. Although neither party pleaded any document in his pleadings, at the trial before the learned trial Judge, a document, Exhibit 1, was produced which was objected to in evidence by the defendant, and which in any case the plaintiff said was not the document made in acknowledgment of the loan.

The plaintiff, however, was allowed to give evidence concerning the loan and after the close of his case, the defendant’s Counsel submitted that the document, Exhibit 1, was inadmissible in evidence because it did not comply with section 15 of the Lands Registration Ordinance, which stated that a document affecting land, unless it was registered, shall not be pleaded or given in evidence. He further submitted that the oral evidence given by the plaintiff about the document, Exhibit 1, must be excluded, as oral evidence of a document which is in writing is inadmissible.

The learned Judge found that the document, Exhibit 1, was an instrument within section 15 of the Land Registration Ordinance, and as it was not registered it was inadmissible and the Claim failed.

From this judgment the plaintiff has appealed to this Court.

Leave was sought and granted to argue additional grounds of appeal and the only substantial ground argued, as amended, is as follows:–

That the learned trial Judge erred in law in holding that Exhibit 1 is inadmissible and that it is an instrument within the Provisions of the Land Registration Ordinance.

For the appellant it was argued that the learned trial Judge, at the trial, did not make an order to exclude the document, Exhibit 1, and having accepted it in evidence, the learned Judge was wrong to have found in his judgment that the document was inadmissible. It was further argued that the Claim being one for an account and an injunction to restrain the defendant from further collecting rents, the loan having been admitted in the defendant’s statement of defence, the document Exhibit 1 is admissible, not as an instrument affecting land, but as an acknowledgment of the loan.

Counsel for the Respondent not only contended that Exhibit 1 was indimissible, but also submitted that on the face of the document there was a mortgage and that the debt had not been repaid. He further submitted that the terms of the mortgage were that rents on the property were to be collected by the defendant until such time as the appellant would clear the principal debt off £120-1s-0d. In other words, rents collected were to be treated as interest on the loan.

At this stage, I will set out in full the document Exhibit 1:-

“Exhibit 1

SC/3/1961.           S. O. NWABUOKU vs. P. N. OTTIH

AN AGREEMENT BETWEEN MR. P.N. OTTIH VICTORIA AND MR. S.O. NWABUOKU TIKO:

I, Stephen Nwabuoku of Ibo, resident at Tiko, hereby to-day mortgage to Mr.. P. N. Ottih of Victoria, my house on Botanical Road, Half Mile, New Town Road, Victoria on the land of Mr. Roohm for the sum of £120-1s-0d (One hundred and twenty pounds, one shilling) which I received from him since 24th June, 1955.

Mr. P. N. Ottih is hereby to-day authorised to collect rents from the house and have full control of the said house until the amount which I, Mr. Nwabuoku is owing him is fully refunded.

On no account will this said house be sold or mortgaged to another person without first settling fully with Mr. P. N. Ottih.

(Sgd.) S. O. Nwabuoku

Witness (Sgd.) Okoro

Date 15/2/57

Victoria.

It is to be noted that this document is dated 15th February, 1957. In his particulars of Claim the appellant claimed on an oral transaction between the parties in 1955 and gave evidence of this; he gave evidence of the trans-action in 1955 and nothing more.

It is clear from his judgment that the learned trial Judge gave no consideration whatever to the appellant’s evidence before him; his evidence was not at any time rebutted by the defendant who did not go in the witness box to give evidence. The evidence of the appellant therefore stands uncontradicted. His evidence giving the terms of the transaction between him and the respondent was in terms of his writ. In the absence of any evidence of rebuttal the appellant was entitled to judgment, and I am of the view that the learned Judge’s duty was to have entered judgment in his favour at the close of the respondent’s case. I will, however, consider the submission made by the respondent’s Counsel and the view taken of the document, Exhibit 1, by the learned trial Judge, although on the view I have taken of the case this is hardly necessary; but I think the points may be considered here. The Statement of Defence filed by the respondent disclosed that the transaction was a friendly loan and it would appear that it was not in the con-templation of the parties to be bound by English law, but oral evidence of the transaction was available notwithstanding the subsequent document. If therefore any document like Exhibit 1 was given by one party, it would be no more than an acknowledgement of the loan and this does not come within the definition of “instrument” to be registered to satisfy section 15 of the Lands Registration Ordinance in order to render it admissible in evidence.

I find myself unable to agree with the interpretation Counsel for respondent put on the document, Exhibit 1, that the debt of £120-1s-0d was nevertheless due no matter what amount had been collected by way of rents on the property pledged. On the face of the document the respondent would be entitled to collect the rents on the property until he had reimbursed him-self up to the amount of the debt shown on the document. If, therefore, the document, Exhibit 1, had been given in respect of the transaction in this matter- there was no evidence that it was – the respondent would still be liable to the appellant on his Claim.

For the foregoing reasons, this appeal will be allowed. Judgment of the learned trial Judge dismissing the plaintiffs claim will be set aside and judgment will be entered for the plaintiff in terms of his Writ.

It is ordered (1) that an account be taken of rents collected on the premises by the defendant as from June 1955 to the date of this judgment; (2) that the defendant be restrained and is hereby restrained from further collection of rents on the property; (3) that if the account shows any amount over and above the sum of £120-1s-0d which is the amount lent, it should be paid over to the plaintiff after the defendant had deducted the amount he had spent on the property for repairs, etc.

There will be costs in favour of the appellant assessed at 30 guineas in the Court below, and in this Court costs assessed at 25 guineas.

UNSWORTH, F.J

I concur.

TAYLOR, F.J

I concur.

Other Citation: (1961) LCN/0896(SC)