C. Anueyiagu & Anor V. Deputy Sheriff, Kano (1962)

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UNSWORTH, FJ

This is an appeal from a decision of the High Court of the Northern Region of Nigeria, awarding the respondent the sum of £700 under a bond, which was in the following terms:-

KNOW ALL MEN by these present that we C. Anueyiagu of 93 Church Road, Kano, and N. Nwofo of 18 Abeokuta Road, Kano, are jointly and severally held and firmly bound to THE DEPUTY SHERIFF in the sum of £700 to be paid to the said DEPUTY or his certain attorney, executors, administrators, or assigns, for which payments to be well and truely made we bind ourselves, and each and every one of us, in the whole, our and each of our heirs, executors, and administrators jointly and severally, firmly by these presents.

SEALED with our seals, and dated this 18th day of May, 1959.

WHEREAS A WRIT of a Fi-fa has been issued by the said judgment creditors upon which Bedford Lorry KB 1762 has been attached by the said Deputy Sheriff, AND WHEREAS O. C. Nwora has claimed as owner of the said property and enters into a bond with two Sureties to prosecute the said Claim. Now the condition of this obligation is such, that is the above bounden O. C. Nwora do successfully prosecute the claim then this obligation shall be void and of none effect, otherwise the same shall remain in fully force and virtue.

Counsel for the appellants filed and argued a number of grounds of appeal, but after considering the record, and the submissions of Counsel, I have reached the conclusion that there are only two points of substance for consideration, namely- (a) whether the claim for the enforcement of the bond must can be brought in the name of the Deputy Sheriff; (b) whether the bond be construed merely as a security against the loss or diminution in value of the property pending the decision of the court in the inerpleader proceedings.

The Deputy Sheriff entered into this bond in his official capacity as an officer of the Government and any claim to enforce the bond is therefore a Government claim to which the Petitions of Right Act (chapter 167 of the 1948 edition) applies. The title to that Act is misleading in that the Act deals not only with petitions of right, but also with claims by the government against private parties. Section 2 of the act provides:-

Claims by the Government of the Federation or a Regional Government or by any department of the Federation or of a Regional Government against any private person shall be brought by the Attorney-General of the Federation or of the Region as the case may be or by any officer authorised by law to prosecute such claims on behalf of the Government.

The question for decision on this first point is, therefore, whether the Deputy Sheriff in his official capacity, is an officer authorised by law to prosecute the claim on the bond. The office of Sheriff is created by the sheriffs and Civil Process Act (chapter 205 of the 1948 edition) and under the definitions in that act the sheriff includes a Deputy Sheriff. The Act clearly contemplates in Form 9 of the Schedule, that the Sheriff may be a party in his official capacity to legal proceedings, but it does not expressly provide that he may sue in that capacity. Section 32 of the Act, however, authorised the sheriff to take a bond in his official capacity, and it seems to me to follow that the legislature must be taken to have authorised him to sue on that bond. In these circumstances I think that the claim for the enforcement of this bond was properly brought in the name of the Deputy Sheriff.

The question whether the bond can be enforced as a security only, necessitates consideration of the circumstances in which the bond was given. The history of the matter is that on the 20th February, 1959 the Deputy Sheriff seized in execution a motor lorry presumed to belong to a judgment debtor named MODOZIE. A third party named NWORA claimed the lorry and, pending the result of the interpleader proceedings, the Deputy Sheriff released the lorry to the claimant after the two appellants had entered into the above-mentioned bond. The claimant lost the interpleader proceedings and thereupon returned the lorry to the Deputy Sheriff as the Court had held that it did not belong to him. The Deputy Sheriff refused to accept the lorry but sought to enforce the bond for the recovery of the full £700.

Counsel for the Deputy Sheriff argued that he was entitled to look to the strict terns of the bond. On the other hand, Counsel for the appellants submitted that the court must look to the law under which the bond was taken in order to ascertain whether it is security only. The bond was taken by the Deputy Sheriff under section 32 of the Sheriffs and Civil Process Act, which provides:-

(1) Where a claim is made to or in respect of any property attached in execution under process of a court, the claimant may-

(a) deposit with the Sheriff either-

(i) the amount of the value of the property claimed; or

(ii) the sum, if any, which the Sheriff is allowed to charge as costs for keeping possession of the property until the decision of the court can be obtained on the claim; or

(b) give the Sheriff in the prescribed manner security for the value of the property claimed.

(2) For the purpose of this section the amount of the value of the property claimed shall incase of dispute be fixed by appraisement and where that amount is deposited as aforesaid it shall be paid by the sheriff into court to abide the decision of the court upon the claim.

(3) In default of the claimant complying with the foregoing provisions of this section, the Sheriff shall sell the property as if no such claim had been made, and shall pay into court the proceeds of the sale to abide the decision of the court.

I agree with the submission of the appellants that the bond must be read subject to the provisions of section 32, as the Deputy Sheriff had no authority to take the bond except in accordance with the provisions of that section. It seems to me that the section is designed to protect the Sheriff against any loss or diminution in the value of the property, pending the result of the interpleader proceedings. Any other construction would mean that the assets of the judgment debtor would be gratuitously enhanced at the expense of the sureties. The decision in the interpleader proceeding was that the lorry belonged to the judgment debtor, and, if the security is then enforced in full, it would mean that the judgment debtor’s assets would include both the lorry and the value of the lorry. On the other hand, the claimant or his sureties would lose both the lorry and its value.

For the reasons mentioned above I am of the view that the bond in this case must be construed as a security against any loss or diminution in the value of the lorry. The lorry was properly returned to the Deputy Sheriff on the termination of the inter-pleader proceedings, and the Deputy Sheriff should then have sold the lorry and enforced his bond only to the extent that the amount recovered on the sale was less that the value of the lorry at the time he released it. In this respect I think that the value of the lorry at the time it was released must be assessed at £700, as this is the sum mentioned in the bond and this value was not disputed under subsection (2) of section 32.

For the reasons mentioned above, the appellants must succeed and the only remaining matter for consideration is the relief which should be granted by this Court. It was submitted on behalf of the appellants that the whole claim must fail, but I do not take this view. I think that the pleadings are wide enough to enable the court to enforce the bond as a security, and that is certainly the course that the justice of this case would dictate. I would accordingly set aside the decision of the High Court and award the Deputy Sheriff such sum as the High Court may assess as the difference between £700 and the sum which the motor lorry might reasonably have been expected to raise if it had been sold at the time it was returned to the Sheriff on the termination of the interpleader proceedings. The case should accordingly referred back to the High Court for this purpose. I appreciate that assessment will be difficult at this stage, but the Judge must make the best estimate that he can on the information available.

The appellants are entitled to costs in this Court which I would assess at 38 guineas.

I would not set aside the award of costs in the High Court, as the Deputy Sheriff would have been entitled to the costs if he had succeeded to the extent mentioned in this judgment. The costs of the further proceedings is a matter for the high Court.

Other Citation: (1962) LCN/0954(SC)