Alh . Labaran Nakyaute v. Alh . Ibrahim Makima & Anor. (1977)

LawGlobal-Hub Lead Judgment Report

SIR UDO UDOMA, J.S.C. 

The appellant in the High Court of Kano State, claimed against the respondents as defendants therein, the following:

“(a) a declaration that the purported sale of the plaintiff’s landed property at No. 30A Airport Road, Kano, by the first defendant to the second defendant is irregular, improper, invalid, null and void and of no effect.
(b)136,713pounds special and general damages for unlawful execution on the said plaintiffs property.
(c) an order that the Register at the Lands Registry Kano be rectified by the deletion of the registration of the 2nd defendant as the owner of the said Plaintiffs landed property.”

In terms of the pleadings filed and delivered and the evidence in support thereof, the case of the plaintiff was that, as a transporter and general contractor, he was the owner/occupier in possession of the landed property known as No. 30A Airport Road, Kano, by virtue of a Certificate of Occupancy No. 10466 dated 12th October, 1961, Exhibit 7, whereby the property was granted to him, which Certificate of Occupancy was duly registered on 17th February, 1972 as No. 31 at page 31 in Vol 66 in the Registry of Lands at Kaduna; that he was at all times material in possession of the said landed property, exercising thereon maximum acts of ownership and possession within the limits prescribed in the certificate aforesaid to the knowledge of the defendants; that in 1969, he collected a lot of building materials and stacked them together on the land aforesaid preparatory to erecting thereon a hotel, that being the only purpose for which the land was originally granted to him, which purpose was stated as a covenant in the Certificate of Occupancy.

It was the case of the plaintiff that during his absence in Benin in Bendel State, the first defendant, as a licensed auctioneer, purported to sell and deliver possession of the property aforesaid to the second defendant, a trader, by public auction, in purported satisfaction of a judgment/debt in suit No. K/38/64, of which the Northern Buying and Shipping Association Limited, a limited liability company, was the judgment/debtor; that he the plaintiff was not a party to the said suit and judgment; and that the first defendant sold the landed property aforesaid to the second defendant, and the second defendant bought the same well knowing that the property did not belong to the judgement/debtor, or recklessly without caring to know to whom the property belonged in that no proper enquiries or investigations were carried out as to the occupancy, ownership and title of the property aforesaid; and that consequently, the sale was irregular, improper, invalid and of no effect, in that the landed property sold to, and which the second defendant bought, was not the property of the judgement/debtor.
The plaintiff thereupon complained that he has been wrongfully deprived of his landed property and made to suffer loss and damage; and that the second defendant to whom a certificate of purchase was wrongfully issued has caused the same to be wrongfully registered in the Lands Registry at Kaduna to his loss and detriment.

In their defence in terms of their pleadings and evidence, the defendants admitted that the property aforesaid was sold by public auction on the instructions of the High Court, Kano, pursuant to a writ of attachment issued from the said court in satisfaction of the judgement/debtor in suit No. K/38/64 – Martin Gutman vs. Northern Buying and Shipping Association Limited – wherein judgement was obtained against the Northern Buying and Shipping Association Limited; that as a result of the said sale, the second defendant as the highest bidder, was issued with a Certificate of Purchase by the High Court; and that by reason of the said certificate of purchase, the name of the second defendant was, with the approval of the Permanent Secretary, Ministry of Lands and Survey, duly registered in the Register at the Lands Office, Kaduna, as the owner of the property, the subject matter of the sale.
It was the case of the defendants that before the public auction, the proposed sale was widely advertised and statutory public notices also duly published with the result that a large number of members of the public was attracted to and attended the said auction sale; and that since, the conclusion of the sale, on 4th October, 1969, the plaintiff had never filed an interpleader summons in court as a means of vindicating and protecting his right.
After having given consideration to the evidence and the submission addressed to him by counsel, the learned trial judge dismissed the plaintiffs claim on the ground that it was misconceived. Hence, this appeal to this court by the plaintiff.
In arguing the appeal for the plaintiff Mr Kehinde Sofola submitted that the learned trial judge erred in law in holding that the averment in the statement of claim contained to the effect that the plaintiff was the owner and occupier of the land in dispute, the subject matter of the purported auction sale, was irrelevant to the action. He contended that on the facts established by the evidence before the High Court, the learned trial judge ought to have held that the so-called sale was irregular, improper, invalid and void, and of no effect in that the property actually sold was not the property of the judgement/debtor.

Learned counsel then pointed out that on the evidence, the property taken in execution of the judgement/debt was not the property towards which the writ of attachment had been directed or had aimed. The sale was of the property of the plaintiff, who was neither a party to the suit nor a judgement/debtor as a result thereof, and for the satisfaction of which execution was ordered to be levied. It was the contention of learned counsel that the sale by the auctioneer, the first defendant, that is, had missed its proper target. The auctioneer had sold the wrong property.
It was the submission of learned counsel that in those circumstances, the first defendant was a trespasser and clearly liable in trespass in that he purported to pass legal title to a purchaser of property he had no right to sell; that the second defendant had bought nothing since the property sold to him was not that of the judgement/debtor, and therefore, neither legal title nor interest in the property had been passed to him by the sale. The whole transaction, submitted learned counsel, was mischievous and malicious because, according to the plaintiff, the defendants knew that the property did not belong to the judgement/debtor.
It was also the contention of learned counsel that the complaint of the plaintiff in the High Court was not directed to the actual conduct of the auction sale as such, although that submission needed qualification because there was some evidence that the first defendant knew at the material time, that the property he was selling was not the property of the judgement/ debtor, but that of the plaintiff, a person not a party to the suit and resultant judgement/debtor.
Learned counsel then submitted that the first item of the claim of the plaintiff was not to set aside the sale on the ground of ordinary irregularity in the conduct of the sale which would fall within Section 47 of the Sheriffs and Civil Process Law. The claim was, and is based on the premises that the sale such as it was, was so highly improper and fundamentally irregular as to amount to an illegality. The impropriety and the irregularity were such as to go to the very root of the whole transaction and to render it null and void and completely invalid in law; and that the transaction being so palpably bad in law was incapable of being supported by any reasonable court of law or of being justified on any legal ground whatsoever.
In support of these submissions on this aspect of the case, learned counsel cited and relied on Abiodun, Bailiff and Others vs. Chief Kogun Ogunyemi (1962) 1 All N.L.R. (Part IV) 550; and Baker vs. Furlong (1891) 2 Ch.D.172.
On the second and third items of the claim by the plaintiff, learned counsel submitted that the plaintiff was entitled to damages for an unlawful execution carried out by the first defendant in the same way as a trespasser would be guilty for breaking and entering into the land of the plaintiff; and that since the second defendant had pleaded and had sought to rely on his having been registered as owner/occupier of the land purportedly sold to him and for which he was issued with a certificate of purchase, then the register ought to be rectified to reflect the true position as regards ownership.
We now proceed to deal with those submissions.
There is no doubt on the evidence, that the plaintiff was not a party to suit No. K/38/64 – Martin Gutman vs. The Northern Buying and Shipping Association Limited – judgement wherein was entered against the Northern Buying and Shipping Association Limited. In order to satisfy that judgement, by an order of court the property of the judgement/debtor was directed to be attached. Notice of Attachment – Judgement Form 41, Exhibit 6A, was issued on 22nd August, 1969, addressed to the Judgement/ Debtor – Northern Buying and Shipping Association Limited, No.8, Katsina Road, Kano.
The Notice reads in part as follows:
“TAKE NOTICE that a Writ has been issued for the attachment and sale of your Immovable Property in Execution of the Judgement/Order obtained against you in this Action/Matter and the amount for which it has been issued is stated below.
AND TAKE NOTICE that your Immovable Property is hereby attached and you are prohibited from selling the same or any right or interest therein.”
It is significant to note that the Notice of Attachment, Exhibit 6A, does not contain the particulars or description of the immovable property to be taken in execution or the location or the address of the said immovable property. The position is the same as regards the Writ of Attachment and Sale Against land dated 19th August, 1969, Judgement Form 38, Exhibit 6E, in which are to be found the following words:
“These are therefore to require you forthwith to make and levy the said sum of 13,222.10pounds together with the cost of executing the summons, by entering upon and attaching the immovable property of the  debtor wheresoever it may be found within the Kano Judicial Division and by selling the same etc. etc”

It is quite plain from the writ of attachment, Exhibit 6E, and the notice thereof, Exhibit 6A, that the attachment was not directed to No. 30A Airport Road, Kano at all which, on the evidence, in any case, was not the property of the judgement/debtor.

In order, therefore, to ascertain how it came about that No. 30A Airport Road, Kano, was attached, it is necessary to go to the evidence on record; and we start with the testimony of the first defendant, Alhaji Ibrahim Maikima who said in part as follows:
“I am auctioneer for 38 years. A policeman invited me to Mr Ayo. I went and some police officers came out of Mrs Ayo’s office, and told me to auction a plot. I did not know the plot before this. I printed  posters and pasted on High Court Building. I took them to Mr Ayo who asked me to paste them on the house to be sold, but I told him I did not know the house. He sent Ibrahim Mahmoud, Assistant Superintendent of Police, Sgt. Bakar Kuruminbi, Uba Obande, Police constable and another police constable with him to show me the plot. They took me to a plot along Airport Road. I did not know the owner  etc.”
Under cross-examination, this was what he said:
“I did not receive any order of the court to act as licensed auctioneer in that sale. I did not know Alhaji Isa Abdullahi personally, before the sale, but I know of his Company. I did not bargain to sell to him. I did not know No. 30A Airport Road was not the property of the Northern Buying and Shipping Association Limited and was property of Alhaji Nakyauta. I did not advertise it as Nakyauta’s property  ……………………………………… I sold on court’s order, as I was directed by Deputy Sheriff.”

Then we must turn to the evidence of Abdukadiri Danjiyaji, (PW.5) who in addition said:
“I know first defendant. I attended an auction sale in 1969. First defendant was advertising auction of plot and materials. He told me the properties belonged to Alhaji Labaran Nakyauta. I attended the  auction. I was surprised that such an auction should take place because I knew he was a rich man    ”

Under cross-examination, he said:
“1st defendant did tell me the property was Alhaji Nakyauta. I asked him personally. He did not say it was Alhaji’s Company’s property.”………………..

Now, the vital issue for determination by this court is as to whether or not on such evidence, considered along with the evidence of Ibrahim Mahmoud (PW.1), A.S.P., who testified that he was attached to the Bailiff’s Section of the Police Force in 1969, and worked under Mr Ayo, A.S.P. who served then as the Deputy Sheriff and that No. 30A Airport Road, Kano, which he could then not locate was pointed to him by one Mr Lewis Thomas (who, incidentally, did not testify before the Court) that the auction sale as a result of which the plaintiff was said to have been deprived of his landed property was such that this court could declare to be regular, proper and valid; and that particularly, as the property purportedly sold was the property of a third party who had nothing, on the evidence, to do with the judgement/debt nor chargeable with the judgement/debt in any way.
It seems clear that the first defendant as an auctioneer in selling the property in question was not in fact and in law executing the writ of attachment issued to him by the Court for three reasons. Firstly, because the Writ of Attachment was destined to a specific property, that is, the immovable property of the judgement/debtor, whereas the property taken in execution was not such property. Secondly, because, on the evidence, the auctioneer knew that the property purportedly sold did not belong to the judgement/debtor. Thirdly, because as sworn to by the auctioneer, he did not himself trouble to inquire or investigate into the title and ownership of the property, even though the said property was regularly and duly registered in the Lands Registry at Kaduna.

On those grounds, there could be no doubt whatsoever, that the first defendant was a trespasser. He was reckless in carrying out his assignment; and by selling No. 30A Airport Road, Kano, as well as the goods in the form of building materials packed together on the said land in the manner in which he did, he would without doubt, have been liable in damages in trespass in a properly constituted action.
In Baker vs. Furlong cited to us by learned counsel, it was held that where an auctioneer receives goods into his custody and on selling them, hands them over to the purchaser with a view to passing the property in them, he is to be treated as having converted the goods, and he is liable to an action accordingly; his case differing from that of packing agents or carriers in that the latter merely purport to change the position of the goods and not to transfer the property in them.
In dealing with this issue in the above cited case, Romer J. said at pages 181-182:
“Now, I agree that if an auctioneer or broker does anything more than settle the price as between a vendor and a purchaser of goods and takes his commission, he is not liable as for a conversion should it   turn out that the vendor was not entitled to sell. That is the case put by Lord Bramwell in Cochrane vs. Rymill 27 W. R. 777, as one where the auctioneer would act merely as a conduit pipe, and here, the auctioneer receives them, hands over the goods to the purchaser with a view to passing the property in them, then I think the auctioneer has converted the goods, and is liable accordingly, and for this, the case of Cochrane vs. Rymill is an authority, and I may also refer to Featherstonhaugh vs. Johnston 3 Taunt 237, and Anderson vs. Jarvis 4 Bing 66. The general rule is that where an agent takes part in transferring the property in a chattel and it turns out that his principal has no title, his ignorance of this fact affords him no protection. ”

In Lovick vs. Crowder (1828) Band C 132 (108 E.R. 992) mentioned in English and Empire Digest, A in March fraudulently and for the mere purpose of protecting the goods sued out a fifa against B under which C, the then Sheriff seized. In September, D, a new Sheriff came into office to whom a fifa sued out by E against B was delivered. D did not seize, but offered to sell under the first fifa and returned nulla bona to the second. It was held:
(1) that D was liable to E for false return;
(2) that the sheriff must see, at his own peril, that the party who sets him in motion is acting bona fide. He is entitled to apply to the court for an indemnity from one of two conflicting claimants. Generally speaking, the sheriff is liable; and it is highly just and proper that he should be so liable. If it were otherwise, a wide door would be opened for fraud and the officers of the sheriff, and the debtors against whose goods process issued would be colluding together for the purpose of making one process the means of defeating another; and
(3) that a creditor who sues out execution against the goods of his debtor must be both prompt and honest in the steps he takes to enforce it.