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At the close of the trial the learned Judge gave judgment non-suiting the plaintiff in regard to his action as against the first defendants. Against that judgment the plaintiff has appealed to this' Court. Counsel for the appellant before this Court made it clear that his client was not appealing against the judgment in so far as it affected the claim to set aside the sale or for redemption. His contention was solely that the learned Judge in the Court below was wrong ill not awarding damages to the plaintiff under his alternative claim.

In this Court, on the motion of the plaintiff-appellant, G. B. Ollivant, Ltd., as attorneys of the liquidators of L. C. Limited in voluntary liquidation were substituted for G. B. Ollivant & Compauy, Limited as defendants in this suit•• L. C. Limited" being the changed name of G. B. Ollivant & Company, Limited.

On the evidence before him the learned Judge found that the plaintiff had received the notice a copy of which was tendered in evidence and admitted without objection as Exhibit " C " in the case. It is clear from the record that the fact of the receipt of this notice was not contested by plaintiff's counsel in the Court below. He addressed himself to the Court below on the footing, and maintained only as matter of law, that the sale which took place was not a sale justified under the power of sale in the Deed of Mortgage by the particular terms and date of the notice given.

The date of the notice given was 21st April, 1927. The date of the actual sale by the auctioneer on behalf of the mortgagees does not appear specifically in the evidence but it appears that the Indenture giving effect to it was dated 4t,h. May, 19:.33-~.e. over six years after the notice given. It also appears from the evidence that between the date of the notice and the date of the sale about six years later certain payments were accepted by the mortgagees from the secured debtor on account of the amount due under the Deed of Mortgage.

It is relevant to note at this stage that the Deed of Mortgage was granted by the mortgagor to secure the fidelity guarantee given by him to G. B. Ollivant & Co., Ltd. in respect of his brothers' dealings with that firm. The Deed of Mortgage, which was an exhibit at the trial, was taken away afterwards by the second defendant, to whom it belonged, as a step in his title as purchaser from the mortgagee; and it has now apparently been lost. Fortunately, however, the learned Judge in his judgment quoted in extenso the relevant clause of the deed, and counsel agreed that the arguing of the appeal should proceed on that quotation.

Counsel for the appellant argued at length that by the receiving of payments on account of the mortgage debt after the notice had been given and I or by the mere lapse of six years a mortgagee in law waived the notice, and for that reason could not sell under the power of sale without a fresh notice j and that therefore a sale without fresh notice was a breach of the contract between mortgagor and mortgagee for which the mortgagee was liable in damages.

No authority really supporting that general argument was produced by appellant's counsel, and I know of none and can find none. The deed provided not for a notice of sale to be given but only for a demand notice being made by the mortgagees to the mortgagor for payment of the amount due by the mortgagor's brother to the mortgagees. Thereafter in default of payment for the space of one calendar month next after the giving of the notice the mortgagees could exercise their power of sale either by public auction or private contract. In fact, about six years after the demand notice the mortgagees, without any further notice to the mortgagor, instructed a licensed auctioneer to sell the property under the mortgage and he did so by private contract for £40. There was no notice given either to the public in general or to the mortgagor in particular of this proposed sale. I think that the most Important point of the appellant's case was not put forward by his counsel.

In my view it is a most important consideration in the application to this case of the principles of what is known as the equity of redemption that the mortgagor in this case is a Burety mortgagor. Before any Court of Equity would allow a mortgagee, by the exercise of his power of sale, to deprive a surety-mortgagor of his opportunity to redeem his property, the Court in my opinion must be satisfied that the mortgagee has given reasonable notice to the surety-mortgagor of the amount which, as a result of dealings between the mortgagee and the principal debtor, is actually due under the mortgage at the time of the exercise of the power of sale. On the evidence in this case it is clear that no such notice was in fact given. The notice upon which the sale proceeded was a six-year-old one in which the mortgagees notified the surety-mortgagor that the amount he had to pay in order to prevent the sale and redeem his mortgage was £75 14s. That notice at the date of the sale supposed to be made on it no longer represented the true position.

If before the sale the respondents had notified the appellant that the original notice no longer held good and that they proposed to exercise their power of sale unless they were paid the sum of £35 9s. 6d., or some such amount, being the balance reduced owing to subsequent transactions between them and the principal debtor, I think there is no doubt on the evidence that the appellant would have exercised his right to redeem at that amount. He ought to have been given the opportunity to do so.

The evidence of the auctioneer who sold the property on the instructions of the defendants reveals what I think is a most significant-not to say sinister-aspect of the transaction. He says that he received instructions from Khoury (originally the second defendant in this suit) to sell the appellant's brother's property at Nsawam. That property was the front part of the house, the bedrooms and offices of which constitute the property in question in this suit. On getting these instructions from Khoury to sell the front part of the house under a mortgage held by Khoury, the auctioneer naturally realised that no decent price could be got for the front door and entrance hall of a house without the other part of the house. He therefore approached G. B. Ollivant & Co., Ltd., apparently knowing of the mortgage held by them over the other part of the house. It was in the interests of his client Khoury that he so approached Messrs. G. B. Ollivant & Co., Ltd., and as a result he obtained from them instructions to dell the back part of the house. He then proceeded, without any advertisement to test the market value and without notifying the mortgagor, to sell on behalf of the respondents the back part of the house to his own client at £40. This was less than one-third of the market value of the property according to the defendant's own expert witness Isaac Akwei. Isaac Akwei was specially instructed by the defendants to examine the property and report on its market value, and, in his report and in his sworn evidence, he says that the market value of tlH~ property was £140. I regard that evidence as conclusive against the defendants, and in the absence of any satisfactory evidence for the plaintiff to the contrary I accept that evidence as to the market value of the property as at the date of the sale. I am somewhat amazed at the calm, naive, and unashamed way in which a licensed auctioneer disclosed to the Court what I can only describe as an utterly discreditable transaction.

I am clearly of opinion that in all the circumstances disclosed by the evidence the sale in question was a wrongful sale in respect of which the appellant is entitled to recover damages in this Court from the respondents.

The measure of damages to which the appellant is entitled is, I think, the difference between ·£140 and the actual sum due by the principal debtor to the respondents at the date of the sale. The exact amount of the latter sum does not appear definitely in the evidence, and I am of opinion that this Court should make an order allowing this appeal so far only as the non-suit of the alternative claim for damages is concerned and remitting the case to the Court below to ascertain, either by consent of parties or by evidence, what was the amount due to the respondents by the secured debtor at the date of the sale; and thereafter to enter judgment for the appellant against the respondents for the difference between £140 and that amount. Any costs involved in the ascertainment of the amount due by the secured debtor should, in my opinion, be borne by the respondents, but the proper course for this Court is, I think, to leave the question of such costs to the discretion of the Court below.

KINGDON, C.J., NIGERIA.

While I agree with every word of the judgment which has just been delivered I desire to add that I go further and am prepared to base the decision to allow the appeal on the broad ground of equity.

Equity has always aimed at protecting a mortgagor from unreasonable treatment at the hands of a mortgagee at a time when his necessities may have placed him at the mercy of the mortgager; and has looked with jealousy upon any attempt to counteract or oppose its interference in behalf of the mortgagor. This attitude is exemplified by such cases as Brightly v. Norton (3 B & S 305; English Reports Vol. 122 p. 116) in which it was held that where there was a power of immediate entry and sale on default of payment it was unreasonable to give only half-an-hour's notice to pay; Tours v. Wilson (4 B & S 442; English Report Vol. 122 p. 524) in which seizure upon a covenant to pay " immediately upon demand" was held to be premature when it was made immediately after a demand for immediate payment was made by delivering such demand to the plaintiff at his house but without communicating to him that payment was to be made to the bearer of the demand; Moore v. Shelley (8 Appeal Cases 285) in which substantial damages were awarded against a mortgagee who seized the mortgaged property, after notice given by an agent, without allowing the mortgagor an opportunity to verify the agency.

N one of these cases are on all fours with the' present, they merely exemplify the principle that in seizing or selling the mortgagor's property the mortgagee must ad reasonably, and allow the mortgagor a reasonable opportunity of saving' his property by payment.

The action of the mortgagee in the present case appears to me to be wholly unreasonable. After giving notice to the mortgagor, which he was perfectly entitled to do, he accepts further payments on account and completely lulls to rest any idea that the mortgagor might have that his property was in danger by taking no action for six years, then suddenly without any notice to the mortgagor, and without any public notification, sells the property by private treaty. I think the Courts would be failing in their duty if they failed to invoke their equitable jurisdiction to protect a mortgagor from such harsh and arbitrary action on the part of the mortgagee.

There is one further point; it is that it appears from the judgment of the Court below that the learned Judge misunderstood the plaintiff's case in regard to waiver. He records in his judgment that "Counsel for plaintiff contends that .

" such conduct on the part of the mortgagees amounted in 'law " to a waiver of their rig-hts under the mortgage deed". Such a contention was never put forward by the plaintiff's counsel and obviously could not be supported; but what he did submit was that there was "a waiver of the notice to sell" and "a "waiver of their rights under the notice of lu27 "-a very different thing. But the Judge devoted his attention only to the point as he misunderstood it, and, holding that there was not " an implied waiver of the mortgagees' rights under the mortgage " deed", made that finding the ratio decidendi of the case.

For these reasons, in addition to those already set forth by my learned brother Graham Paul, I concur that this appeal should be allowed, and that the plaintiff ought to be awarded damages as indicated.

I concur with the judgment of Graham Paul, J. and also with, the subsidiary judgment delivered by the President of the Court. .