Alhaji Mustafa Ali Vs Mrs. A. A Allen (1966)

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BRETT J.S.C.

The respondent to this appeal, Mrs A. A. Allen, obtained judgement in the Magistrates Court, Ibadan, against one Kasumu Alao, and as he could not satisfy the judgement in full she was granted leave by the High Court to attach his immovable property. A piece of land with a house on it at Ori Eru, Idikan, Ibadan, was attached by the Deputy Sheriff, and the appellant laid claim to it, whereupon the Deputy Sheriff took out an interpleader summons.

In his statement of interest dated the 26th January, 1962, the appellant alleged that he was a registered moneylender, and that the property had been conveyed to him by two mortgages dated the 21st February, 1956, and the 20th July, 1957, to secure loans of £300 and £200. He concluded by saying that the judgement debtor had paid neither the loans nor the sum of £306.5s. interest accrued up to the 31st December, 1961. There is no provision in the rules of court made under the Sherrifs and Civil Process Law for any further pleading by the judgement creditor, or the judgement debtor, and the matter went to trial on the statement of interest lodged by the appellant. The only person to give evidence was the appellant himself, and he produced a number of documents including the mortgages. In the High Court the appellant asked that the property should be released from attachment. In this Court we were invited to give a direction under Order 5 rule 14 of the Judgements (Enforcement) Rules, that the property should be sold and that the claims of the appellant should be paid in priority to those of the judgement creditor.

The judge held that the appellant had failed to prove compliance with sections 12 and 19 of the Moneylenders Law, and dismissed the claim on this ground. Mr. A. G.O. Agbaje on behalf of the appellant has pointed out that the attention of the appellant was never drawn to any dispute as to whether these sections had been complied with, and has submitted that the claimant was entitled to rely on the rights conferred by the mortgage and that the claim ought not to have been dismissed on a ground which had never been put dearly in issue. We need not enter into a consideration of where the burden of proof as to compliance with these sections of the Moneylenders Law lies on a claim by a mortgagee in interpleader proceedings, since it was put to the appellant in cross-examination that the loan of £300 had been repayable on the 21st February, 1959, and the loan of £200 on the 20th July, 1960, and he agreed. This being so, no proceedings would have lain at his instance in January, 1962, for the recovery of the loan or for the enforcement of the security, as the time prescribed by section 30 of the Law for bringing such proceedings is one year from the date on which the cause of action accrued, and that time had expired..

Mr Agbaje submitted that the appellant might have been able to show that the claim was taken out of the provisions of section 30 under one of the provisos to the section, but he had the opportunity of doing so at the trial, where he was represented by counsel, and it is now too late to try to do so for the purpose of these proceedings. The appellant cannot be allowed to enforce indirectly a security which he could not enforce directly. The legal title to the property is still vested in the appellant, but what will be sold is the judgement debtors right title and interest in the property, consisting of the equity of redemption, and the purchaser will no doubt take advice on whether it is open to him to claim such relief as was granted in Baba-Egbe v. Kasumu (1954) 14 W.A.C.A. 444. That question does not arise in the present proceedings and we express no opinion about it.

The appeal is dismissed with costs assessed at 27 guineas.

Other Citation: (1966) LCN/1332(SC)