Appeal Court, 30th May, 1940.

Claim by a mortgagor calling upon the mortgagee to render an account operation of Real Property Limitation Act 1833- Claim statute barred and appeal dismissed.

Held: (1) The claim being based on Appellant's right and title as mortgagor and the Respondent being sued as mortgagee in possession the suit must fail. The Appellant's right and title are completely extinguished by the operation 0 R.P.L. Act. 1833.

(2) The provisions of Sch. II O. 19 R.l of the Supreme Court Ordinance we!1 complied with, and the Court below was right in hearing argument and giving judgment which it did. -

Sanders v. Sanders (19 Ch. D.373) considered and followed.

There is no need to set out the facts.

D. M. Abadoo (with him ]. W. de Graft Appellantt.

F. Awoonor Williams for H.espondent.

The following joint judgment was delivered :--

KINGDON, C.J.. NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.j, SIERRA LEONE.

The Appellant sued Peter Awoonor Renner, his claim being as' follows :-" To call upon' Defendant as Mortgagee in possession t render an account of rents collected or received by the Defendant from Plaintiff's house ... at Cape Coast ... which said house was handed over by Plaintiff to Defendant in the year, 1905 in order that Defendant might collect rents accruing wherefrom in payment of a retainer of £52 10s. charged by Defendant form defending Plaintiff in a criminal action, the same being subsequently conveyed by Plaintiff to Defendant under a Deed of Mortgage date the 22nd September, 1901), and for payment by Defendant of any amount found due and payable to Plaintiff; also interest on the, said amount. The Plaintiff further claims redemption of the said premises as comprised in the said Deed of Mortgage from the Defendant; and for such other order or relief in the premises as to the Court may seem fit."

Pleadings were ordered and filed, but before trial the Defendant Peter Awoonor Renner died and Franklin Beatrice Awoonor Renner by her Attorney was substituted as Defendant in the suit by order of Court dated 15th April, 1939.

On the suit coming on for trial, after the conclusion of the evidence of the Plaintiff himself and before the close of his case, the Defendant's Counsel raised a legal point which he contended could have been raised on the Plaintiff's pleadings by way of demurrer without any evidence being taken. The legal point was shortly that the Defendant had pleaded that the claims is statute-barred and that this plea could be maintained on the facts as stated in the Plaintiff's Statement of Claim. On this point being raised. the Court below heard argument') of Counsel upon it, and upon the arguments gave judgment in favour of the Defendant, upholding the plea that the claim was statute-barred.

Against that judgment the Appellant has appealed to this Court; his first ground of appeal is that the trial was irregular :-

(a) In that the provision of Schedule II Order 19 Rule 1 of the Supreme Court Ordinance was not followed; and

(b) the Appellant had not called all his witnesses and closed his case when the Court heard submissions of Counsel for Respondent.

The Rule founded upon is as follows :--

" Where a defendant conceives that he has a good legal or equitable defence to the suit, so that even if the allegations of the plaintiff were admitted or established, yet the plaintiff would not be entitled to any decree against the defendant, he may raise this defence by a motion that the suit be dismissed without any answer upon questions of fact being required from him."

That Rule makes it possible for a party to move the Court at any time to have a point of law, raised upon the pleadings, disposed of. But it in no way restricts the inherent power of the Court­ either of its own motion or on application of a party-to hear and determine at any time a question of law raised on the pleadings. It would be manifestly absurd to suggest that a Court was bound to proceed with the taking of lengthy evidence of the parties to a suit where it appeared that the whole suit could be decided upon the pleadings without any evidence being called. There can be 110 doubt that the Court below was quite right to hear Counsel on the point of law as and when it did, and to decide that point of law as it did on the Statement of Claim and arguments of Counsel. That disposes of the Appellant's first ground of appeal.

The Appellant's other grounds of appeal and the judgment of the Court below must be considered on the basis that the facts are correctly stated in the Plaintiff's Statement of Claim taken along with the Exhibits admitted by consent. From the facts so stated it is clear that the late Peter Awoonor Renner was a Mortgagee in possession under the Mortgage Exhibit" A " and that he had been so in possession from 1905 without giving any account of the rents collected; that he was still in possession at the date of the writ in this suit; that on 23rd May, 1934, he caused to be served on the Appellant a Notice of Foreclosure and Sale of the said house under the said Mortgage, and calling for payment forthwith by the Appellant of £374 Is. alleged to be due and owing from the Appellant under the 8aid. Mortgage.

I t is upon these facts that the Respondent argued and the Court below held that the Appellant's whole claim was statute-barred, The whole claim was dismissed by the Court below.

The statute relied upon is the Real Property Limitation Act 1833. That statute clearly applied to this Colony under section 1 of the Supreme Court Ordinance which was in force in this Colon at the material times in this suit and it is still in force under section~ 70 of the present Courts Ordinance.

The relevant sections of the statute are as follows (omitting ) the words which are unnecessary or have no application to the issue in this suit) :-

S. 2/1 .•• 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 ... shall not bring a suit to redeem the Mortgage but within twenty years next after the time at which the Mortgagee obtained such possession or receipt unless in the meantime an acknowledgment of the title 0' the Mortgagor or of his right of redemption shall have been give~ to the Mortgagor •.. in writing signed by the Mortgagee."

And S. 34 .•• At the determination of the period limited by this Act to any person: for ... bringing any •. ; action or suit the right and title of such person to the land, rent, or, for the recover whereof such. , . action or suit respectively might hay, been raised or brought within such period, shall be extinguished,"

On 18th May, 1934, the late Peter Awoonor Renner signed and caused to be delivered to the Appellant a Notice of FOre closure (Exhibit " E "), That notice certainly amounted to an " acknowledgment of the title of the Mortgagor." It was " give~ to the Mortgagor" and it is " in writing signed by the Mortgagee." It would therefore be a sufficient acknowledgment to stop the running of the Limitation period against the Appellant if it had been given before the expiry of the twenty years next after the time at! which the Respondent as Mortgagee obtained possession of the mortgaged property; but the case of Sanders v. Sanders (19 Ch.D., 373) decided quite definitely that an acknowledgment given after, the expiry of the twenty years next after the time the Mortgage obtained possession did not restore the Mortgagor's right or title which by operation of time had been extinguished under sections 2g and 34 of the Act. It follows therefore that the Foreclosure Notice given on 18th May, 1934-29 years after the Mortgagee had obtained possession-was not effectual to prevent the operation of the statute against the Appellant.

The Appellant has sought to get round the statute by raisin several points :-

(1) The relationship of solicitor and client between the parties and that the agreement embodied in the Mortgage infringed the provision of Schedule I Order Rule 12 of the Supreme Court Ordinance, 1876,

   (2) The fact alleged in the Statement of Claim that all sums of money due or owing under the Mortgage had long been discharged or paid off with rents collected from the said house of the Appellant.

     (3) That there was no settled account between the parties.

    (4) That on the face of the Mortgage it appears that items were added to the Schedule of the Mortgage after execution.

None of these points assists the Appellant to maintain the present action for the reasons (1) that the whole of the claim is based on the Appellant's right and title as Mortgagor and that he sued the Respondent as Mortgagee in possession under Exhibit " A "~ and (2). that his right and title as Mortgagor have been completely extinguished by the operation of sections 28 and 34 of the Act. (See Chapman v. Corpe, 41 L.T.R. 22).

Be it noted that section 28 is perfectly general in its terms; it bars any suit to redeem the mortgage on whatever grounds such suit may be taken, so that it in no way helps the Appellant to put forward that he has even the best and most compelling of grounds for his suit.

The terms of section 24 of the Act are also relevant to explain the sweeping general purpose of the Act. Again, omitting unnecessary or inapplicable words, that section is as follows :-

•... ,No person claiming any land or rent in equity shall bring any suit to recover the same but within the period during which by virtue of ,the provisions hereinbefore contained he might have ... brought

        an action to recover the same if he had been entitled at law to

such estate, interest, or right in or to the same as he shall claim therein in equity."

Sections 25 and 26 of the Act contain safe-guarding provisions in cases of express trust or fraud but these have no application to the present case where there is no ., express trust" and no allegation of fraud ..

For these reasons we consider that the Court below was right in holding that the Appellant's whole claim was barred by the Real Property Limitation Act, 1833, and the appeal is dismissed with costs assessed at £42 19s.