Bafunke Braithwaite & Anor V. A. Folarin (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Interpleader Proceedings—Collusive dispositions of property in Appealfraud of the grantor’s creditors void under 13 Ells: Cap. 5, afromStatute of General Application under section 14 of the SupremejudgmentCourt Ordinance.

Held: Appeal allowed and case remitted to trial Court for Judge

Court.thereof to make findings of fact on the issue of fraud.

There is no need to set out the fade.

E. J. Alex Taylor (with him A. Latunde Johnson) for Appellant.

0. Alakija for Respondent.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, J.

The appellant in this matter is the defendant in Interpleader proceedings which were converted into a suit with the claimants as plaintiffs and the executing judgment creditor as defendant.

The Court below gave judgment in favour of the plaintiffs ordering the release of the attachment and against that judgment the defendant has appealed to this Court.

The grounds of appeal are as follows :—

1. The learned trial Judge was wrong in ordering the ” release of the property attached as he appeared to have been ” satisfied that the disposition of it to the plaintiffs was ” fraudulent.
2. The evidence does not support the findings of the ” learned trial Judge.”

The judgment of the Court below is quite short and as its

precise terms are important its full text is quoted as follows :—

” Notwithstanding the suspicion with which one must ” necessarily regard family disposition of property ” made or alleged at or near a time of financial ” embarrassment of the person disposing of the ” property to the disadvantage of his creditors, there

” being in this country no law invalidating such die- Bafunke ” positions, I feel obliged on the evidence to order ta_iteith_i ” the release of the attachment herein, which I hereby

ano.

” do.V.

” That there is no such law is, I venture to think, a v. B.

” hardship to which creditors are unnecessarily F_oi_ari_n. ” exposed.

” The question of costs, however, being in my discretion, Kingdom, ” I allow the plaintiffs none. Each party will bear ^Petrides ” its own.” C.JJ.

& rah

It is clear from the terms of the judgment of the Court below Paul, J.

.

that the Court below was under the impression that the law as to invalidating dispositions of property in fraud of the creditors of the grantor was in Nigeria different from the law of England, to the effect’ that there was no law in Nigeria invalidating such dispositions.

With respect to the learned Judge in the Court below we consider that he misdirected himself on this point. In our opinion the Statute 13 Elizabeth Cap. 5, which from its date until it was repealed in 1925 represented the law of England on the subject of -‘ollusive dispositions of property in fraud of the grantor’s creditors, s applicable to Nigeria under section 14 of the Supreme Court Ordinance.

The Statute in question is in our view a Statute of general application, applying as it does quite generally to ordinary affairs and dealings of men without any qualification or speciality restricting its application. The Statute was simply declaratory )f the common law at the time. And the Statute was in force in England on let January, 1900. The repeal in 1925 does not affect Nigeria as the repealing act was subsequent to 1st January, 1900.

The Statute being in force in Nigeria it is then necessary to onsider in the light of its provisions the evidence in this case. in considering whether a particular case comes within the Statute ^–he Court must look at the whole of the circumstances and see whether the transaction was in fact carried out with the intent ‘) defeat creditors (Re Holland 1902, 2 Ch. 360).

With these observations we think that the judgment of the :ourt below should be set aside and the suit remitted to the learned ; udge who tried the suit for him to make findings of fact looking

the whole circumstances of the case in the light of the ruling .1-1 the case of Re Holland (supra) and to give judgment thereon. ^–:Le judgment is set aside and the suit remitted accordingly.

The appellant has been successful in the appeal and is entitled costs in this Court which we assess at twenty-eight guineas; :Tts in the Court below will abide the ultimate issue.