Bundu v Kamara (Civil Appeal No.2/76)  SLSC 1 (25 October 1977);
IN THE SUPREME COURT OF SIERRA LEONE
The Honourable Chief Justice C.O.E. Cole - Presiding
The Honourable Mr.Justice E.Livesey Luke - Justice of the Supreme Court
The Honourable Mr.Justice C.A. Harding - Justice of the Supreme Court
The Honourable Mr.Justice K.R.During - Justice of Appeal
The Honourable Mr. Justice C.S. Davies - Justice of Appeal
Civil Appeal No.2/76
Alie Bundu - Appellant )
VS for Judgement
Grant Sallu Bundu Kamara Respondent
JUDGEMENT 25th October, 1977.
T.M. Terry, Esq. Solicitor for the Appellant
T.S. Johnson Esq. Solicitor for the Respondent
C. A. Harding J.S.C.: The Respondent herein, Grant Salu Bundu Kamara, on 4th March, 1961, nortgaged his freehold property No.21D Elk Street, Freetown to the Development of Industries Board (D.I.B. for short) to secure the repayment of a loan of Le2,000 with interest at the rate of 4 per cent per annum payable on 4th March, 1965; the nortgage was effected by a conveyance of the said property to the Hortgage subject to a proviso for redemption. On 22nd July 1964, i.e. before the date fixed for redemption, one Allie Bundu (the Appellant herein) a judgment creditor of Grant Sallu Bundu Kamara (the Hortgagor) in execution of the judgement debt, purported to purchase the Respondent's equity of redemption in the mortgaged property at an auction sale by the Sheriff of Sierra Leone made under section 5 of the Excecution Against Real Property Act,Cap. 22.
On 18th November 1965,Allie Bundu as execution creditor took out an Originating supreme in which the Mortgaged (i.e. the D.I.B.) and the Sheriff for Defendants/Respondent,praying for an Order that the D.I.B. (the mortgage )do sign a Deed of Release of the mortgage premises in his favour upon payment by the Sheriff to the D.I.B of the balance of the mortgage debt and interest due and owing in respect thereof; this supreme was supported by an affidavit sworn to by the the applicant. The Mortgage i.e. the Respondent herein, was not made a party to those proceedings.
The matter case up before Debbs, J. on 21st January, 1966, and no objection having been made Solicity-General who at the time respresented both the D.I.B and the Sheriff, an Order,as was prayed, was made accordingly . On 2nd May, 1966, the D.I.B. in compliance with the said Order duly executed a Deed of the mortgaged premises in favour of the Appellant. In that same year the Respondent who had been in possession of the premises was evicted therefrom by the Appellant who thereupon entered into possession.
Subsequently in 1970, the Respondent instituted proceedings in the High Court against the D.I.B., and on 5th October 1977 Browne -Marke J. (as he then was)made in Order to follows:-
1.Release of mortgage dated 2nd May 1966 by the Defendant (i.e the D.I.B.) to one Allie Bundu of the Plaintiff's mortgage property situate at and known as 21D Elk Street Freetown is bad in law and null and void
2. The grant conveyance transfer of the legal fee simple of the plaintiff said mortgaged property by the defendant to one Allie Bundu by way of a purported Release of Mortgage dated 2nd May , 1966 is set aside .
3. The Defendant do recovered to the plaintiff the plaintiff said mortgaged property premises and land situate at ant know as 21D Elk street, Freetown.
XXXXX enoughs the Appellant was not made a party to those proceedings even thought Respondent was fully congnisant of the fact that the Appellant was then in possession of the premises.
It is therefore not surprising that the Respondent found it necessary , in 1973, The institute further proceedings against both the D.I.B. and the Appellant claming reconveyance to him of the mortgaged property and such further or other relief . The case was heard by Warne J. (as he then was) and he, on 25th January 1974, (gave judgment dismissing the Respondent's claim with cost . On appeal by the Respondent to the Court of Appeal (Coram Tejan J.S.C., Awner -Renner J.A. and S.B. Davies J...) the judgment of WARNE J. was set aside and an Order made for the Respondent (the Appellant therein) to have half the costs both in that Court and in the High Court. Against this decision the Appellant herein has appealed to this Court .
In his statement of clam filed in the High Court , the Respondent averred not only the judgement of Browne-Marke J. (above-mentioned) but also the execution. be him of the mortgage deed of 4th March, 1961 in favour of the D.I.B (who were there the 1st Defendant in the action) and the subsequent release on 2nd May, 1966 of the said mortgage to the Appellant without his (Respondent's) consert. Re further alleged that the D.I.B did not at any time between the said 4th day of March 1961 and the said 2nd day of March 1960 exercise any of its rights under the said mortgage including the right to foreclose on the contrary, the D.I.B. continued to receive from him instalment repayment of the loan up to and including November, 1965. [Among the receipts tendered in support of such repayments was one dated 27th January ,1965.]
The C.I.B., in their Defence filed, merely admitted the execution of the said mortgage and the subsequent release thereof to the Appellant.
The Appellant (the 2nd defendant in the action) in his amended Defence denied that the Respondent was entitle either in law or in equity to a reconveyance of the premises and stated that the Respondent's "equity of redemption " was sold by public auction under due process of law to satisfy a judgment debt against the Respondent and that by such sale the Respondent lost his right to redeem the property and that the Appellant as xxxx for the therefore become subrogated to, or in
substitution of, the right of the Appellant to redeem the mortgaged property. He also pleaded the Order of Dobbs J. dated 21st January, 1966, ordering the D.I.B to sign a Deed of Release of the mortgage in hin favour on xxxx by the Sheriff to the D.I.B. of the mortgage debt and interest them due and owing . He further stated that in coup-liacco with the and order the D.I.B. duly executed the Deed of Release and that he was in possession of the property under a bona fide title and that he was legally entitled to remain in possession and that the Appellant's claim was unfounded and that the action was frivolous vexatious and an abuse of the process of the Court.
The learned trail Judge dismissing the action said into alia:--"Whether the Court presided over by the learned Judge Browne-Marke. J.S.C. had jurisdiction to review the Order of 21st January 1966 in doubtful; suffice it to say that one shell consider whether the 2nd Defendant has a good title to the property and if the plaintiff as a result of the purchase lost his "equity of redemption" of the said property.
The 2nd Defendant went into possession by the Deed of Release as cited in 1966 in pursuance to the Order referred to he xxxxx on the 21st January 1966 Counsel for 2nd Defendant contends that 2nd Defendant became an assigns of the plaintiff/nortgagor as a result of the operation of law - that in to say when he purchased the property in execution of the judgment debt herein before mentioned and therefore had a right to redeem the mortgaged property. I agree with counsel for the 2nd Defendant. 2nd Defendant became entitled to the property 2ID Elk Street Freetown under section 5 of Can. 22 of the Lawn of Sierra Leone.
"The plaintiff cannot be heard to say he had no notice of the sale ,because I find as fact that he had notice
of this sale. There was nothing at law preventing 2nd Defendant from purchasing the estate. His relation with the plaintiff was not the same as that of the trustee and cestum qui trust where the trustee is nr:prohitited from buying the trust property from the cestui qui trusts. By this sale the plaintiff lost the "equity of redemption". The plaintiff could have exercised his right in order before the sale. In my view, by his conduct he wared has right to redeem and indeed abandoned has right of redemption.
"To 21D Elk Street was in fact seized in satisfaction of the judgement debt and was sold by Public Auction. The 2nd Defendant having acquired the said property purchased at a public auction became entitled to the "equity of redemption " herefore vested in the plaintiff .
The 2nd Defendant obtained judgment for a debt owed to him by the plaintiff , there was due execution of this judgment. The Judgment having been fulfilled gave the 2nd Defendant a right to the "equity of redemption" of the Mortgage to the 1st Defendants. The 2nd Defendant has acquired a good title to the property situate at 21D Elk Street, Freetown both in law and in equity. The plaintiff, having lost him right to redeem in law there is no state to re-convey to him both by the 1st Defendants and the 2nd Defendant."
As has been stated this judgment was set aside on appeal to the Court of Appeal, The main grounds of the appeal were:-"1. The Learned trial Judge erred in law whom he stated that by the purchase of the
mortgaged property by the 2nd Defendant, at the time when the legal estate thereof was vested in 1st Defendant, the 2nd Defendant thereby became an assigned of the plaintiff mortgager
1. The Learned Trail Judge erred in Law when he concluded that by the sale of the Mortgaged property by the Sheriff the plaintiff lost the ". equity of redemption".
5. With valid subsisting and enforceable judgment and Order of the high Court against the 1st Defendant/Respondent in favour of the plaintiff/ appellant in respect of the same transaction, the learned trail judge erred in law in delivering and opposite or contradiction judgment as between the Plaintiff /Appellant ant the 1st respondent."
The Court xxx (1) "that since the 2nd Respondent (i.e.Allie Bundu) had paid the mortage bebt to the 1st Respondent (i,e. the D.I.B.) the Appellant's (i.e Grant Sallu Bundu Kamara) obligations to redeem his, property singly to pay what he own to the 2nd Respondent" and (2) "that the mortgage is still subsisting notwithstanding that it was paid of without the knowledge of the Appellant i.e., the Mortgagor Grant Sallu Bundu Kamara)".
The cases relied upon by the Court for so holding included:-(i) Parker Another vs. Jackson &. Another (1936) 2A.E.R 281
(ii) Monks vs. Whiteley (1911) 2 Ch.D. 461 (iii) Butler vs. Rice (1910) 2 Ch. D. 277 (iv) Chetwynd vs.Allen (1899) 1 Ch. 353 (v) Ghann Commercial Bank vs. D.T. Chandiran & Anor.(1960) 3 WLR 328 (1960 G.L.R. 178
The Court of Appeal in the course of its judgment stated:-"Whether the judgement of Browne-Marke J. as he then was, was in accordance with legal procedure in the absence of an Appeal, this court is not prepared to inquire xxxx but the amazing situation in this case is that after the judgement of Browne-Marke. J. and instead of adopting the various step to execute or enforce the judgement , the Appellant instituted proceedings praying for a Order for reconveyance of his Mortgaged property to him. In my view, this is the substance of the case before Warne J., as he than was.
I think that the pith and narrow of the case is whether a Court can be called upon to execute A judgment this being the case before Warne J.(as he then was)
Warne .J..by setting aside the judgment of Browne-Marke. J. and giving judgment for the 2nd Respondents, constituted himself without the slightest justification and contrary to all legal judicial and statutory authorities an appell to Judge, and this being the case his Judgment is set aside for lack of jurisdiction." After dwelling for a while on the difficulties of of effecting execution and enforcement of Browne-Marke's J. Orders as they stood the Judgment continued:-
"Surely the Orders made by Browne-Marke J. do not truly represent the decision which he intended to make. It is the view of this Court that a Judgment should bo made clear and easy of enforcement, and in this case it is not only sufficient to declare the release of the mortgage null and void and to set aside the transfer of the mortgage property to the 2nd Respondent. Wo think that a further Order to the effect that the deed of conveyance to the 2nd Respondent be expunged from the Registrar of Conveyance ,and that failure of the 2nd Registrar to recobvey the property to the Appellant within
a specified time , the Master and Registrar was to convoy would have made the, Judgment capable of casy enforcement."
The grounds of appeal now before us are as follows:-"(l) That the Court of Appeal was wrong in law when it hold that release of a mortgage can only be effected by the mortgager himself to the mortgagee.
(2) That the Court of Appeal was wrong in law when it held that because the Mortgagor was not a party to the action for the release of the Mortgage to the 5rd party, the latter could only take subject to the "right which the Mortgager had against the Mortgagee".
(3) That the Court of Appeal was wrong in law to Order that a motion could be taken before the High Court to perfect Browne-Marko's J. judgment as the effect of such an Order if carried out would be to affect the Defendant/Appellant (Allie Bundu) who was not a party to the proceedings before Brown-Marke J.
(4) That consideration was never given to the following submission of Counsel:-
(i) That by sale by the Sheriff by public auction of the Respondent's equitable interest in the property No.21D Elk Street, Freetown for the payment of the Respondent's debt at which the said sale the appellant bought subject to the mortgage, the Respondent thereby lost the right to redeem the mortgage. (ii) That by the sale as forsaid the Appellant as the Purchaser for value thereof become subrogated to, or in sustitution of, the rights of the Respondent to redeen the said Mortgage, and by operation of law become the Assignee of the Equity of redemption.
under the Mortgage Deed and a person entitled to redeem the mortgage. (iii) That on the sale of the said premises at No.21D
Elk Street, by the Sheriff to the Appellant a Conveyance of the same was iesued to him, that Section 8 of Cap.22 provides that even if the Judgment under which execution was levied is reversed (which is not the case here) such reversal shall not effect the purchaser.
(iv) That at the time the release of mortgage was executed by the D.I.B. in compliance with the Order of the Court the Respondent had not fully repaid the mortgage debt and had lost the right to redeem by lapse of time and also by breach of the conditions of his contract loan." Counsel-for the appellant contended that there were two separate transactions in issue, vis; the first involving a loan granted by the D.I.B. to the Respondent in resect of which ho executed a legal mortgage of his property situate at 21D Elk Street, Freetown, and the second, the subsequent purchase of the said property by the appellant in execution of a judgment debt.
With regard to the second transaction the learned trial Judge made the following findings:-
(i) That the Appellant was a Judgment Creditor of the Respondent;
(ii) That 21D Elk Street was seized in satisfaction of the judgment debt and sold by Public Auction;
(iii) That the Respondent had notice of this sale;
(iv) That the Appellant became entitled to the property 21D Elk Street, Freetown under Section 5 of Cap.22 of the Laws of Sierra Leone;
(v) That Appellant had acquired a good title to the property situate at 21D Elk Street, Freetown both in law and in equity.
With regard to (1) and
(iii) there-scam be no quarrel with the learned trial Judge who also hold that there was nothing to prevent the Appellant from purchasing the property i.e the Respondent's equity of redemption.
Where there is no fiduciary relationship as in the present instance - between the parties, there is nothing to preclude the Judgment Creditor from purchasing the Judgment Debtor's property under a writ of fieri facins, and, provided that there is no conflict of interest, no collusion, no fraud, the Courts will not interfere. This is a long established principle.
In Stratford vs. Twyn in (1822) 37 Ch./908 where the contention was that upon a sale under an execution, the creditor suing it out ought not to become the purchaser, Sir 'Thomas Plunor
M.R. said (at page 909) :-
"The point , therefor to be contended for must be, that if the creditor world at law be submitted to purchase , get that in Court of Equity it cannot be permitted. But on what principle is that, to rest? The case of trustees is quite different; with respect to them the principle 13, that the same person shall not be buyer and seller. But here the Sheriff is the seller. In the case of a trustee there is a conflict of duty and interest, and the Court therefore says that he shall not be trusted to purchase unless no has divested himself in his character of trustee. The case of mortgager and mortgage alluded to stand again on a different principle, that the Court will not allow one nan to take advantage of the necessities of ,another. But here the party proceedings adversly agains his debtor not by any private dealing, but by the public process of the law; and he in not the person who is to sell; that is the duty of" the Sheriff; and what injury can arise from the creditor attending at the sale and bidding? I cannot find any principle for saying that he cannot purchase."
Again, in Ex parte Villars In re Rogers (1074) 9 Ch.- Ap.432, Hellish, L.J. hold that there was nothing to restrain the Sheriff from Bulling to the creditor, who cannot be in a worse position than any other purchaser.
With regard to the seizure and sale of the mortgaged property, Section 2 of the Execution Against Real Property Act, Cap.22 states as follows:-
"The houses, lands and other hereditaments and real estate situate or being within any part of the Colony, belonging to any person whatsoever indebted, shall be liable to, and chargeable with, all just debts,dues and demands, of what nature or kind soever, owing by, or duo from any such person to Her Majesty, or any,of her subjects, and shall be and are hereby made chattels for the satisfaction thereof, in like manner as personal estates within the Colony are siezed, extended, sold or disposed of for the satisfaction of debts".
Under this provision the words "houses lands and other hereditaments and real estate" have boon construed to include "the equity of redemption " which by the same Section "shall be and are hereby made chattels for the satisfaction" of a Judgment Debtor's debts, "in like manner as pesonal estates are seized, extended, sold or disposed of for the satisfaction of debts".
It should be pointed out that the affect of this section is not to make the mortgaged premises i.e., 21D Elk Street a "chattel" but to make the Respondent's (i.e. the Mortgager's) equity of redemption of that property a "chattel" for the purposes of execution,
(Sec Forter vs. Khoury A.L.R., S.L. Series 1937-49 p.126).
Section 5 of the Act provides for the sale by Sheriff under a writ of fieri facias of the premises and for the execution and registration of the deed of conveyance to the |urchr.scr after which "the purchaser shall be, and is hereby declared to bo, vested in/as good and perfect on estate as the owner of such houses, lands, hereditaments or other real estate was seized of, or entitled unto at or before the sale thereof as aforesaid, and
as fully to nil intents and purposes as if the person, against whon such writ of execution shell be granted, had sold such lands and premises to ouch purchaser and signed, sealed and delivered a good deed for the sane and received the consideration money himself". How wh\t estate the Respondent (i.e.the Mortgagor) seised of or entiled to at the tine the Sheriff sold"7 On the execution of the mortage the legal estate had been conveyed ot the Mortgagre (i.e., the D.I.B).) .and the only right, interest or estate which the Mortgagor had left was the equity of redemption which undoubtedly must be an equitable estate . Thus at the time the Sheriff purported to sell the premises the legal estate was vested in the D.I.B. and the aquitable estite i,e. the equity of rcdemption (which was the only interest that could have been sold under the Act) was vested in the Respondent herein. The writ of ferri facians could not have attached the legal estate of the mortgaged premises which was then vested in the D.I.B. Hence Whatever price was paid by the Appellant was only for the equity of redenption (which in itself is a valuable asset which can be dispersed of by the Mortgager either by sale, by gift inter vivos, or by was) and not for the whole xx simple eastate By utilising the proceeds of sale to pay not only himself on his execution debt but also to obtain for himself a release or conveyance of the legal estate which at the time was vested in the D.I.3. (and as such could never have been levied u, on in in execution against the Mortgagor) the Appellant purported to purchase both the equitable as well as the legal estate in the mortgaged premises.
In the affidavit in xxxxx of the Originating Summons praying for an Order that the D.I.B. do sign a Deed of Release of the mortgaged promises upon payment by the Sheriff of the balance of the mortgage debt and interest the appellant deposed inter alia:-
"1. I an the Puchaser of the premises situate at and known as 21D Elk Street, Freetown. 2. The said premises were on the 22nd day of July,
1964 sold by Public notion by the Sheriff of Sierra Leone (2nd Defendant herein) under duo process of law executed against the Property of Grant Salu Bundu.
7. At the sale of the paid mortgaged premises (subject , to the mortage aforesaid) the 2nd Defendant herein obtained the price of Le3,560.00 sufficient to pay off the balance of the mortage debt and interest and also the Judgment debt.
8. The 2nd defendant herein has by Deed conveyed to no this deponent the said premises No.21D Blk: Street, Freetown subject to the nortgage aforesaid.
9. There is now sufficient amount in the hands of the 2nd defendant herein to pay off in full the balance of the mortgage debt and interest now duo and owing to the 1st defendant heroin.
10. This affidavit in made in support of an application to the Court for an Order that the 1st defendant herein do sign a Deed of release of the said mortgage heroin in my favour upon payment of the balance of the mortgage debt and interest now duo and owing to him.
11. The application to the Court became necessary because
the 1st defendant herein has refused to accept payment of the balance of mortgage debt and also to sign a Deed of Release in my favour."
As has been stated previously the Respondent (i.e., the mortgager) was not made a party to the proceedings and it is recorded that the Solicitor-General who represented both the D.I.B. and the Sheriff at the hearing, had no-objection to the application.
It is the duty of the Sheriff after seizure and sale of the debtor's goods to satisfy the Judgement debt and his own expenses after which to pay over the residue to the Judgment debtor. This procedure was not followed hero and instead we find the Sheriff holding on to the residue for well over a year when application was made to the Court by the Judgement creditor (i.e. to Appellant herein) for payment out thereof by the Sheriff to the D.I.B. (the nortgaged) who was then to sign a Deed of Release of a Mortgage held by then and to which the Appellant was a complete stranger. Ia it any wonder than, that the D.I.B. at first "refused to accept payment of the balance of the mortgage debt and also to 3ign a Deed of Release" in his (i.e., Judgement creditor's) favour
The Sheriff could not have conveyed the legal fee siale in the promises to the Judgement creditor - only the "equity of redemption" which is virtue of Section 2 of Cap.22 of the Laws of Sierra Leone has been made a "Chattel".
The only interest which the Appellant could have purchased was the equitable estate which was retained by the Respondent. What the Appellant purported to have purchased, as could clearly be evinced from his conduct, was both the equitable and legal estate It is pertinent to state that the Respondent did not receive any of the proceeds of sale which he was legally entitled to receive Moreover, it was not proved that the conditions precedent to sale as contained in Section 7, 9 and 10 of the Execution against Real Property Act, Cap.22, were complied with by the Sheriff before he purported to sell the property in question. In such circumstances 1 an not satisfied that the sale was bona fides. In my view the sale should be set aside. This also affects the role which was improperly obtained and which also should be set aside. In consequence of this the legal estate reverts ho the D.I.B. What in effect the transaction has amounted to is that the Appellant has utilised money he paid for acquiring the equitable estate only to ay for the legal estate as well and to depriving the Respondent of the residue of the proceeds of the sale legally duo him.
The , Learned trial Judge was clearly wrong when he held that "2nd Defendent (i.e. the Appellant herein) became entitled to the property 21D Elk Street Freetown under Section 5 of Cap.22" and also that "2nd Defendant has acquired a good title to the property........ both in law and in eguity".
Having held that the sale by the Sheriff as well as the Release should be set aside it follows that the Respondent's right to redeem the mortgage had never been extinguished or lost. The Respondent is entitled to a reconveyance of the mortgaged property.
The Appellants is bound to account to the Respondent for all rents and profits received by which him or which might or ought to have been received in respect of the mortgaged property since he has been in possession thereof, i.e., since the date of the Release ,less of course, all out-goings such as rates, insurance, repairs and reasonable improvements.
Taking all the circumstances of this case into consideration I would make the following Orders :-
1. The appeal is dismissed
2.The Order of the Court of Appeal is hereby varied as follows: -
(a) The D.I.B. within one month from date hereof or within one month after being so requested by the Respondent execute a reconveyance to the Respondent, at the expense of the Respondent, of property No.21D Elk Street,Freetown .
(b) The Registrar of the Supreme Court do take an account of the rents and profits received by the Appellant or which might have been so received in respect of property No.21D Elk Street. Freetown since the date of the Release, i.e. since 2nd May, 1966, as well as all reasonable outgoing and file same in this Courts with three month from date hereof for necessary action by this Court .
(c) The Respondent payable to the Appellant the purchase price that Appellant paid to the Sheriff plus interest at the rate of 4 per centum per annum as from date of sale to the date of ouch payment less the costs of Execution and as any balance in the hands of the Sheriff.
(d)The Sheriff pays to the Appellant any balance remaining in his hands out of the proceeds of sale.
3.Costs of this Appeal and costs in the Court of Appeal and in the High Court to the Respondent.
4.Liberty to apply.
Ken During J.A.:
I have had the opportunity of reading the separate Judgments of my brothers Harding J.S.C. and Luke J.S.C. respectively and have come to the conclusion that this Appeal should be dismissed.
The facts of this case have substantially been stated in the separate Judgments of my Learned brothers.
Reference has been made to the Execution against Heal Property Act Cap.22. The Appellant in his pleadings averred that the sale to him of the said property was valid and in my view the burden was on him to prove the same and the presumption of regularity could not be invoked in this connection by him. The conditions precedent to the sale must be complied with where property is put up for sale under the provisions of Cap.22. The question as to whether the sale was bona fide or mala fide will only arise when conditions precedent have been complied with and as I have already stated the burden of proof was on the Appellant. Indeed, it was squarly on the Appellant. 1 agree with my brother Harding J.S.C that there has not been sufficient proof that conditions imposed by the Act were complied with and in my view therefore the purported sale of the said property could not be regarded as a bona fide sale under the provision of the Execution against Real Property Act. Cap.22.
What the Appellant could have bought was the Equity of Redemption. It is pertiment to note that before the date fixed for redemption, the Appellant purported to purchase the Respondents Equity of Redemption; repayment of the loan of Le. 2,000 with interest at the rate of 4 per cent per annum was payable on the 4th of March, 1965.
The Order of Dobbs J. on the 21st of January, 1966 that the Development of Industry Board do execute a Deed of Release in favour of the Appellant in my view ought not to stand in that the basis on which the Trial Judge made the order was that the sale by the Sheriff was bona fide one under the Execution against Real Property Act. In my view also the Order of Dobbs J. was not binding on the Respondent
in that he was not a party to the proceedings before the Learned Judge, Justice surely demands that before such an Order was made, considering that the 3oard at first refused to execute a Release, that the Respondent should have been made a party so that ho could be in a position to at least state whether or not he was then indebted to the Board.
My Learned brother Luke J.S.C. in his judgment, considered the Legal position when it is clear from the evidence that the Respondent's money was in fact used to pay off Mortgage debt as a result of which the Development Industries Board executed the Release to the Appellant. I agree with my Learned brother that the surplus in the hands of the Sheriff belongs to the Respondent and that neither the Board nor the Appellant was entitled to it. Luke J.S.C. went further to consider the equitable doctrine of Tracing and is of the opinion that the Respondent could follow the money in its converted form in the hands of the Appellant and that the Appellant hold the legal estate as constructive trustee of the Respondent. I do agree with him. It will be iniquitous, unfair, unjust for the Appellant to hold on to the beneficial interest in the legal estate when the Respondent's money was the consideration for which the release was made to him. This Court certainly will not allow the Appellant to hold such interest and I agree that the Deed of Release should bo sot aside. Even if sale Of the Equity of Redemption was one which could be upheld as bona fide
under the Execution against the Real Property Act, I, 'for reasons I have stated above and those in the Judgment of Luke J.S.C. will set aside the Deed of Release and apply the equitable doctrine of Tracing.
My Learned brother Luke J.S.C. dealt with cases on Constructive Trust in his Judgment, He referred to what was siad by Edmund L.J. (as he then was) on the subject, Constructive Trust in Carl Zeiss Stifting vs. Herbert Smith & Co. No.2 (1969) 2 L. Ch. 276 at p.300 & 301 respectively.
On the question as to whether or not the Appellant was a Constructive Trustee in coming to a conclusion I have applied the principle laid down by the Learned Lord Justice in that case.
I would make the Orders Mentioned in the Judgment of my brother Marding J.S.C. and dismiss this appeal.
Ken O. During J.A.