T. O. WILLIAMS AND MRS. TAYO OGUNTUSI V. J. T. NELSON COLE & OTHERS

Foter -Sutton, P. The appellants are the children of Thomas Folaranmi Williams, deceased, and sued the respondents, executors of Phillip Henryson Williams, deceased, asking for (i) a declaration of title in respect of property at No. 57 Broad Street, Lagos; and (ii) recovery of possession of the property. The appellants’ father who died in 1918 was the owner of the property at 57 Broad Street, and before his death had mortgaged it to Joseph Robertson Shanu, since deceased, for a loan of £350 with interest, which mortgage was still alive at Shanu’s death. Shanu by his will appointed three executors, one of them being P. H. Williams.

On the instructions of the executors of Shanu’s estate, in exercise of the power of sale conferred by the mortgage deed, the property in question was put up for sale by public auction and was purchased by the Industrial and Commercial Bank of No. 98 Broad Street, Lagos, on the 7th August, 1929, for the sum of the £750. P. H. Williams was a director of the bank and it appears that he allowed a payment down of £100 to be made and the balance of £650 to remain on deposit receipt with the bank.

It was not suggested that the bank ever entered into possession of 57 Broad Street, and it was admitted before us that no conveyance of the property was ever executed in its favour.

The bank went into liquidation and in the year 1933 the liquidators of the bank sued the executors of the estate of Shanu claiming specific performance of the contract of sale or alternatively repayment of the purchase price. That action was settled by the executors of Shanu’s estate paying the liquidators of the bank £400 and costs.

In the year 1938 one of the beneficiaries under the will of Shanu sued P. H. Williams alleging that he had committed a breach of trust in allowing the sum of £650, balance of purchase money on the sale of 57 Broad Street, to remain on deposit with the Commercial and Industrial Bank. In that case judgment was given against P. H. Williams, and Graham Paul, J., in delivering judgment said, “The fact that the defendant as a director of the Industrial and Commercial Bank had a personal interest in this investment hostile to his fiduciary interest as a trustee simply aggravates the seriousness and culpability of his breach of trust.”

In June and July, 1939 P. H. Williams purported to execute on his own behalf two mortgages, Exhibits “H1” and “J”, of the property 57 Broad Street. Exhibit “H1” contains the following recital: “Whereas under and by divers acts in law and events which have happened the Borrower is seised in fee simple in possession free from incumbrances of the freehold hereditaments here- inafter described and expressed to be hereby conveyed”, and the instrument goes, on to convey the premises 57 Broad Street.

There is no evidence of any conveyance of the property in question to P. H. Williams and it would appear that he took advantage of his position as an executor of the estate of Shanu and of the situation created by the action brought against him by the beneficiary of Shanu’s estate for a breach of trust, to take possession of the property and claim title to it. On behalf of the respondents Mr. Taylor argued, inter alia, that Shanu’s estate are now estopped from denying the sale of 57 Broad Street, and that the appellants lost any interest they might have had when the property was sold to the Industrial and Commercial Bank.

The question we have to determine on this appeal is whether the appellants’ equity of redemption was extinguished by a valid and effectual exercise of the power of sale contained in the mortgage T. F. Williams to J. R. Shanu.

In my opinion that question must be answered in the negative. The property was never conveyed to the bank nor did they ever enter into possession of it, and the contract of sale was called off when the action brought by the liquidators was settled in 1933. The legal estate remained in Shanu's estate and is still there. So far from there being a sale to a purchaser who paid his money and entered into possession, the consequence of the sale was, not that the purchaser entered into possession and enjoyment of the property, but that P. H. Williams, one of the executors of the mortgagee’s estate, and the person who took an active part in the exercise of the power of sale, appears in the active possession and enjoyment of the property, and the only explanation of this odd state of affairs given by the respondents, the executors of his estate, is that the property was sold to the bank and that the “Plaintiffs must have known about the sale”.

It follows that I would allow this appeal and set aside the judgment of the Court below.

The appellants are not, in my view, entitled to any form of declaration because the Shanu estate is not a party to this suit, but as against the executors of the estate of P. H. Williams they have a better right to possession of the property in dispute, and I would accordingly enter judgment for them for possession of the property, 57 Broad Street, as against the respondents.

The appellants are entitled to the costs of this appeal which we fix at £21 3s. 0d. and the costs in the Court below fixed at £67.

de Comarmond, Ag. J.A. I concur. Coussey. J.A. I concur.

Appeal allowed: judgment for possession.