Agency_Power to effect mortgage-Direction not to use power without instruc-
tions-Mortgage effected without instructions-Mortgage assigned by mort-
gagee to agent-Whether enforceable

Appeal and Revision-Issue of fact-Appeal to Court of Appeal on fact-When
court will interfere with finding

Civil Procedure-Litigant in person-Responsibility not transferred to court
Land Law-Fraudulent transfer-Land registered to another to defeat creditors
and fraudulently obtain housing loan-Illegality-Whether agreement en-
forceable

Mortgage and Charge-Interest-free mortgage-s-Subsequent agreement for in-
terest not stating date or rate-s-Unenjorceable=-Whether interest payments
made are recoverable

Public official-Personal business dealings-Government regulations

( 1) Litigants, although entitled to present their cases in person, do not
thereby put themselves in 'a better position than other litigants. They are
bound by the rules of evidence, and cannot seek to place on the judges the
task, which belongs not to them but to the parties and their advisers, of
sifting the elements of a case out of a welter of statements and documents,

(2) The purpose of sending an issue for trial is precisely to obtain the
decision of the judge who hears the evidence as a whole, and who is in a
position to estimate its credibility and worth. Appeal lies only when the
judge makes a finding for which there is no evidence whatever in support,
or when he has made a mistake to the effect of proper findings. The
Court of Appeal will not interfere merely because it would have come
to a different finding of fact from the judge who heard the evidence.

(3) Where interest was not payable under a mortgage, and it was es-
tablished that there had been a subsequent agreement to pay interest, but
neither the commencement date nor the rate of interest were proved, the
agreement was unenforceable under the Civil Justice Ordinance, section 7,
and an even £E.lOO remittance sent by the mortgagor for the mortgagee
must be taken to be in. reduction of capital. Payments of interest under
the subsequent agreement however, would be good payments,' and neither
recoverable nor attributable to capital.

(4) Where a mortgage was effected by an agent, but the agent had
separate instructions not to effect a mortgage without special direction, and
no such direction was given, the mortgage so effected was valid and en-
forceable against the mortgagor in the hands of anyone except the agent, or
another having knowledge of the limitation on the agent's authority. Upon

the agent obtaining an assignment of the mortgage to himself. it became un-
enforceable.

(5) A government employee who takes an assignment of a mortgage
contrary to administrative regulations may be subject to disciplinary action.
but the regulation does not afford a defence to the mortgagor in an action
upon the mortgage.

(6) Per Cumings D.J.: A man. who has procured the registration of
his own land in the name of another in order (0 facilitate the defeat of fu-
ture creditors and to permit the Government to be fraudulently induced to
grant a housing loan to that other, is disentitled by the illegality of the
transaction to enforce his title to the land.

SCOII v . Brown, Doering, McNab & Co. 11892J. 2 Q.B. 724.
Civil Justice Ordinance 1929. s. 7.

Appeal

Y ousef Saad, the defendant, appeaJed from a decree of the Khar-
toum High Court (Halford J.) dated June 3, 1934. The appeal came
before Gorman C.J., Harrison PJ. and Cumings DJ. on February 22,
1935, who delivered a preliminary judgement on the same day, framing
a new issue and referring it for trial by the High Court and to report
the result to the Court of Appeal, the appeal standing over mean-
while. Fleming-Sandes J. gave judgement on the issue so referred on
July 6, 1935, and Yousef Sa ad appealed against both decrees of the
High Court. The facts are set out in the judgemept of Gorman J.

Advocate: Labib Serial . . . for the respondent.

February 22, 1936. Gorman c.J.: In this case the plaintiff,
Philip Saad, is suing his brother, the defendant Joseph Saad, for the
sale or foreclosure of a property beionging to the defendant (referred
to throughout the proceedings as "plot 4") to recover the amount of
four mortgages totalling £E.950 charged on the property and for
£E.255.375 interest: £ E.1205.375 in all. Of these mortgages, three,
for the sums of £E.500, £E.50 and £E.50 respectively, were made
in 1924 in favour of one John Cutsurides, and transferred in 1931
to the plaintiff. The fourth, for £E.350, was made in 1930 in favour
of one Aristidi Cutsurides and transferred to the plaintiff in 1931.

The action carne on before Halford J. The plaintiff appeared
by advocate Labib Sorial. The defendant appeared. as he has ap-
peared throughout, in person. This fact is mentioned at the outset,
for it is the reason for the very confused way in which the defendant's

. -s been presented, resulting in a waste of the time of the courts.

Litigants are entitled to present their cases in person, but they must
not expect thereby to put themselves in a better position than other
litigants. They are bound by the rules of evidence and cannot seek
to place on the judges the task, which belongs not to them, but to
the parties and their advisers, of sifting the elements of a case out
of a confused welter of statements and documents proved and not
proved, relevant and irrelevant, admissable and inadmissable. The
present defendant has been given a great deal of latitude, but this
latitude has not been utilized to bring his case to proof.

Pleadings were ordered. The plaintiff's statement of claim setting
out the mortgages and assignments above mentioned was filed on
April 11, 1933 and later, in November 1933, was amended in a minor
particular. On April 29, 1933 the defendant filed his defence. Re-
duced to its essentials: (1) be admitted the first two mortgages for
£E.500 and £E.50 respectively; (2) he denied the third and fourth
mortgages for £E.50 and £ E.350 respectively; (3) he denied that
any interest was payable; (4) against the sum of £E.550 due on the
first two mortgages he sought to set off the sum of £E.304, alleged
to have been paid by him; (5) he alleged that the transfer of the
first three mortgages to the plaintiff was void by reason of an agreement
between himself and the plaintiff in 1932 that the plaintiff would not
effect the transfer.

The plaintif" applied for particulars of the sum of £E.304 and
tf the alleged agreement between plaintiff and defendant not to effect
transfer of the mortgages, and the judge made an order for such
particulars on May 29, 1933. This order produced a fifteen page
document from the defendant. It is diffuse and garrulous, mostly
irrelevant, and interspersed with charges of fraud and references to
documents ar 1 other evidence. Anything less Eke a pleading and less
calculated to clear the air and define the issue is hard to imagine, and
it ought never to have been received as particulars of a pleading.
From a careful perusal of this document it would appear that the
defendant's case as regards the £E.304 was that he had given the
plaintiff £E.100 to pay to the mortgagee in reduction of capital, and
further that the plaintiff was his agent to collect rents and pay them
to the mortgagee also in reduction of capital. that the plaintiff did so
act, but no particulars were given by the defendant. As regards the
alleged agreement, this was stated to be verbal: but in this matter
the defendant proceeded further and alleged that a certain property.
called plot 3, registered in the plaintiffs name, was really his, the

defendant's. Now the creation of a charge on this plot 3 by the
plaintiff in favour of John Cutsurides was the consideration for the
transfer to the plaintiff of the three mortgages held by John Cutsurides
on plot 4, and it would appear that the defendant in his patriculars
was groping after a further defence, not specifically raised in the state-
ment ol--defence, that if plot 3 was the defendant's, the three mortgages
assigned were held by the plaintiff on trust on the defendant's behalf.
It is doubtful however if the judge ever appreciated what the defendant
was driving at, fur the judge proceeded to settle the issue on June 19,
1933 in such form that in no one of them was the defendant's point
about plot 3 specifically raised. The issues as originally settled and
later expanded were as follows:

(1) Was there an agreement to cancel the three charges for
£E.600?

(2) Was there a breach of this agreement so as to render the
assignment to the plaintiff void?

(3) Is the fourth charge void?

( 4) (a.) Did the defendant receive £ E.5 50 and not £ E.600
in respect of the Cutsurides mortgages, i.e., is the 3rd charge
void?

(b.) Was Cutsurides entitled to interest?

(c.) Has defendant repaid Cutsurides £E.304?

Finally the judge on June 3, 1934 decided the above mentioned
issues as follows:

(1) and (2) He found that there was no agreement to cancel
the three charges for £E.600, and consequently no breach of such an
agreement. There can be no doubt that on the evidence the judge
was right in coming to this finding. Unfortunately this issue, as I
have sought to show, failed to raise the essential point on which the
defendant's case in this matter was based, i.e., the ownership of plot 3.

(3) He found the fourth charge void and ordered it to be ex-
punged from the register. There has been no appeal from this by
the plaintiff, so that in the Court of Appeal we arc Concerned only
with the three 1924 mortgages.

(4) (a.) He found that the defendant was liable on all three
p~ •. , gages and not on the first two only, on the ground that the power

of attorney given to the plaintiff by the defendant under which the
plaintiff created the third charge empowered him so to do, and the
defendant has not shown he did not receive the money.

( 4) (b.) & (c.) As regards interest the judge held that although
interest was definitely not payable under the original mortgage deed,
there was a subsequent agreement to pay interest as from .the date of
maturity, i.e., 1925 until 1929. As regards payment of this interest
he found payment had been made by the plaintiff in respect of interest,
but inasmuch as the plaintiff said these payments were from his own
pocket and he made no claim in respect of them, the judge took the
view it was immaterial to decide who paid the interest. In the result
therefore he made an order for sale to secure payment by the defendant
to the plaintiff of £E.600.

The defendant appealed. At an early stage it became apparent
that if the defendant's case had been properly pleaded and presented,
at least one further issue would have been framed in the court below.
That it was not is entirely the defendant's own fault, and it would
have been within the competence of and indeed it would have been
the usual procedure of the Court of Appeal to have refused to enlarge
the case. The court however took the view that in this family dispute,
even though it meant giving greater indulgence to the defendant that
he had any right' to expect, it was undesirable on public grounds to
leave unventilated any issue which could properly have been tried
out in thepresent action, provided it was one which, as a result of
the present action having been heard and determined, might be held
to be res judicata and as such not capable of being raised in the
future. There is one such issue, namely whether the defendant, as he
alleged, is the true owner of plot 3, and not the plaintiff as shown on
the register, and the Court of Appeal therefore decided that this one
further issue should be remitted to the High Court for trial. This
further issue was tried by Fleming-Sandes J. in Judge Halford's ab-
sence, and the judge found the defendant had failed to discharge the
burden on him. Against the judgement of Fleming-Sandes J. the de-
fendant has also appealed.

I will now deal with the points raised by the defendant on appeal
both in respect of the issues tried by Halford J. and that tried by
Fleming-Sandes J. They were as follows:

(a) As regards the new issue, he asked for a new trial on the
ground firstly that Fleming-Sandes J. had not given him sufficient

opportunity to cross-examine the plaintiff as to his means, the object
being to show that the plaintiff had at the date of the purchase of
plot 3 nothing beyond his pay, and that that did not suffice for his
needs. We were satisfied, however, that the defendant had ample
opportunity to raise this point in cross-examination and did raise it.
The judge certainly stopped him at one stage, but a judge has every
right to prevent the time of his court being wasted by litigants or
advocates who persist in going over old ground again and again and
do not proceed. Moreover, on the matter of finance the plaintiff
gave a detailed story of bow he raised. the money, and it was to this
that the defendant should have addressed his attack.

(b) He asked for a new trial of this issue, secondly, on the ground
that the court had refused to summon a certain witness, Hamad, who.
the court was told, would speak to the defendant having received
rent arising from plot 3. This evidence however would not be in-
consistent with the ownership being in the plaintiff. Moreover, the
defendant had already called a witness who admitted paying the
defendant rent arising from plot 3, but who stated that the receipts,
some of which were produced, were always in the plaintiff's name.
The judge in the circumstances was within his rights in refusing to
summon Hamad. In the Court of Appeal the defendant stated that
Hamad would also speak. to an admission by the plaintiff, but no
mention of this alleged admission was made to the judge below.

(c) The defendant also asked that the decision of Fleming-Sandes
J. on this issue should be reversed on the ground that insufficient
weight was given to the defendant's documents, and in particular to a
letter written by the plaintiff to the defendant, of which the original
was produced, and which contained an admission by the plaintiff that
the defendant was the owner of the property. This is of course no
ground of appeal at all, The purpose of sending an issue for trial is
precisely to obtain the decision of the judge who hears the evidence
as a whole and who is in a position to estimate its credibility and
worth. Appeal lies only where the judge makes a finding for which
there is no evidence whatever in support, or where, on proper findings,
he has made a mistake in law as to their effect, but this court will'
not interfere merely because we, who have not heard the evidence
as a whole, would on the record have come to a different finding of
fact from the judge who did hear ali the evidence and had the witnesses
before him. In this case the judge described the defendant's case as
based on reading into certain documents and correspondence, some of

which I may add were wholly inadmissible as evidence. a construction
which they were quite unable to bear. With this view we do 110t
dissent. Moreover, the issue did not turn solely on the defendant's
documents. The plaintiff was called lipan and g2\ c an account of the
transaction which the judge appears to have accepted. There was
ample evidence before the judge which justified his finding, and this
court will not interfere in such circumstances. I will add a few words
about the particular document against the judge's rejection of which
the defendant specifically complains. When the original of this letter
was produced by the defendant it was found that toe space occupied
by the Arabic word for "your property," on which the whole value of
the document to the defendant rested, had been tampered with at some
time. An erasure had taken pJace and there were grounds for sup-
posing that not only was the original word not "your property," but
it might well have been "my property." Who can deny that the judge
was fully justified in not giving the slightest weight to such a document?
The defendant sought before us to call as a witness the person who
made the erasure to explain the original state. Not only will the Court
of AppeaJ in such circumstances not call a witness not called below,
but it is fantastic to suppose that oral evidence as to the original state
of a tampered document could of itself suffice to swing the whole
case over to the side of the defendant. The decision of Fleming-
Sandcs J. is affirmed.

(d) The defendant next proceeded to deal with the judgement
of Halford J. The first POL'lt he took was that the judge was wrong
in not deducting from the capital liability under the mortgages such
sums as the plaintiff bad paid to the mortgages by way of interest.
In dealing with this point a distinction has to be drawn between a

. sum of £E.100 forwarded by the defendant to the plaintiff in ]926
at the plaintiff's request for transmission to the mortgage, and such
other sums as the plaintiff may have paid to the mortgagee. The
sum of £ E.1 00 was sent by the defendant on the receipt by him
of' a letter from the plaintiff. The plaintiff, according to the letter,
undertook on receipt of this sum, "at once to pay to Cutsurides,
and I shall then arrange to let him allow a few days time. If you
don't remit then you should be sure that i\1r. Francoudi will raise
an action at once."

Halford 1. found this £ E.l 00 had been paid as interest. in
spite of the fact that the plaintiff admitted he remitted only £ E.50
to Cutsuridcs and kept the balance himself in payment of an alleged

indebtedness. The judge based his decision (1) on the terms of the
letter; but the letter does not mention the word "interest" and reads
to me more compatible with a payment on account of capital; and
(2) on his finding of fact that, although the mortgages specifically
say interest is not payable, the defendant and the mortgagees came
to a subsequent agreement to pay interest from 1925 to 1929. Now
'it is true that letters written by the defendant in 1948 indicated that
then he regarded himself as under some obligation to pay interest,
but as from what date and at what rate there is nothing in the
evidence to show. The testimony of Mr. Cutsurides Junior, who
arrived in Khartoum only about 1930, as to the contents of his father's
books at an earlier date is certainly not evidence on these matters.
In the circumstances, I think there was no evidence on which Halfort1
J. could find that this money was paid by the plaintiff by way of
interest, and as he obtained it specifically to pay over to Cutsurides
he must be deemed to have paid it in reduction of capital. I there-
fore think that credit must be given to the defendant for £ E.! 00.

As regards the other payments alleged, however, different con-
siderations apply. These payments are alleged by the defendant to
be payments by the plaintiff out of moneys received by him as the
defendant's agent. This the plaintiff denies. No particulars are
given by the defendant, who says he has never had an account from
the plaintiff and is unable to supply particulars. The sums he seeks
to set off he arrives at by a calculation of what the plaintiff may be
deemed to have expended by Y!_'!-y of interest and then appropriating

        this to the reduction of capital.                                                               .

Now it is clear as has already been said, from the defendant's
letters in 1928, that he regarded himself then as under obligation to
pay interest. When this agreement was made or what its terms were
we do not know, but some agreement can be assumed. It is an
agreement which by reason of section 7 of the Civil Justice Ordinance!
could not be sued upon, but payments made thereunder would be
good payments of interest and neither recoverable nor attributable
to capital, and the only sums which the defendant would be entitled

1 Civil Ju~tice Ordinance 1929, s. 7: "Where in any suit there is a claim to
interest from a date antecedent to the date of the institution of the suit, such
interest shall not be recoverable unless one of the following conditions is satis-
fied: (a) the claim is of such a nature that interest is payable in accordance
with the provisions of any enactment for the time being in force; or (b) at
the time when the debt was incurred there was made between the parties an
express or implied agreement for the payment of interest."

to set off would be such sums as he could show had been paid in
excess of the agreed interest. But whether any such sums, and if so,
what sums, were paid by the plaintiff there is not a particule of evi-
dence to show, and the defendant's claim to set off any sum in excess
of the £E.I00 above mentioned fails. But as Halford J. points out,

( 1) it is the plaintiff's case that all sums paid by him by way of
interest to Cutsurides came, not out of any money collected by him as
the defendant's agent, but wholly from his own pocket; and (2) he
makes no claim for these sums. One can have one's own opinion
of the veracity of (1) in the light of (2), but at least the defendant
is not prejudiced thereby, for if he still has any right to an account
against the plaintiff as agent, he can if so advised still pursue it,
with the assurance that the plaintiff will be unable to go back on
his case as presented and seek to account for any monies he may
have collected by alleging they were paid to Cutsurides by way of ;
interest. -

(e) Next, the defendant appealed against that part of the
judgement of Halford J. which held him liable on the third mortgage.
That mortgage was for the sum of £E.50, and was raised by the
plaintiff by virtue of a power of attorney given to hlm by the
defendant. Halford J. stated that the power given was wide enough
to cover this mortgage, and doubtless in the hands of Cutsurides, the
original mortgagee, the mortgage was a good one. But that power
of attorney was sent to the plaintiff with a covering letter directing
him not to use it until a certain further communication was received
from the defendant. The defendant has denied he ever sent such
further authority, and thle plaintiff is unable to produce any such.
But, says the plaintiff, the defendant ratified the mortgage by accept-
ing the money, and also, by acknowledging the existence of the
mortgage in the recital to the fourth mortgage. TIle latter point is
a bad one: the third mortgage is a good mortgage in the hands of
anyone save the plaintiff or someone with knowledge of the flaw
in the plaintiff's authority. The defendant could not get it removed
from the register. In these circumstances the mere recital of its exist-
ence cannot be read as acquiescence in or ratification of the plaintiff's
act. There remains the ratification by receipt of the money. As to
this Halford J. has said that the defendant has failed to satisfy him
he did not receive the money. But the burden as to this is on the
plaintiff, and save his uncorroborated statement that he remitted the
money, though even as to this he is vague; there is no evidence he
sent the money, and there is none whatever that the defendant

received it. In these circumstances I think the decision of Halford
J. as regards the third mortgage must be reversed and an order made
to expunge it from the register.

(f) A final point raised by the defendant is one that admits
of being disposed of shortly. It was a point not raised in any
pleading or any issue, but one persisted in by the defendant in the
face of every discouragement both here and below. It was that
inasmuch as the plaintiff was a Government servant and as such
required, under administrative regulations, to have the Government's
consent to the assignment to him of a mortgage, and as the consent
was got after the assignment and, when got, was subject to conditions,
that therefore he cannot sue the defendant. Administrative regula-
tions however are not part of the ordinary law. Breach or non-
observance of then may give rise to disciplinary punishment, but they
do not afford a defence to an action raised in the courts between
subject and subject.

The result of the appeal therefore is that the order of Halford
J. will be varied by reducing the sum charged on the property from
£E.600 to£E.450 and by adding a direction that the third mortgage
for £E.50 be expunged from the register. The terms of payment
will be as in the judge's judgement, save that they will take effect as
from January 25, 1936.

As regards costs the plaintiff will have the costs of the additional
issue in the High Court which the judge left to us to allocate. The
costs in the Court of Appeal will be taxed on both sides, the plaintiff
will pay one quarter of the defendant's taxed costs and the defendant
will pay three quarters of the plaintiff's taxed costs, the said amounts
to be set off and the balance paid by the party liable.

Harrison J.: I concur.

Cumings J.: I agree, and have the following additional observa-
tion to make.

The issue remitted for hearing by Fleming-Sandes J. as to the
ownership of plot No. 3 turned on questions of pure fact, and the
appellant is therefore taking upon himself a heavy burden in his
attempt to get the finding of the learned judge disturbed. A court
of appeal starts with a presumption that the decision - of the judge
below is right, and that presumption must be displaced by the appel-
lant. If he satisfactorily makes out that the judge below was wrong,
the decision will be reversed: if the matter is left in doubt, a court
of appeal will not alter the decision below. This is to state the burden