Electrical & Mechanical Construction Co. Ltd. v. Total Nig. Ltd. & Anor. (1972)
LawGlobal-Hub Lead Judgment Report
O. ELIAS, C.J.N.
This is an appeal against the judgment of Bello J. at the High Court, Kaduna, on 30th March, 1971, in which he refused to set aside the sale of the property, 7 Sokoto Road, Kaduna, which belongs to the judgment debtor, to the purchaser of the property at an auction held by the Deputy-Sheriff on 13th August, 1970.
The case originated in Suit No. Z/33/1968 which the plaintiffs brought in the High Court at Kaduna by writ of summons dated 17th September, 1968, in which the plaintiffs’ claim was for the sum of ‘a336605 being the value of petroleum products delivered by them to the defendants on credit at the latter’s request and for which the defendants had failed to pay despite demand.
The facts of the case, which are not is dispute, may be summarized as follows: that the appellant obtained judgment against the respondent for the sum of ‘a336605 on 26th October, 1968; that the judgment creditor issued a writ of fifa on 16th November, 1968, for the attachment of the movable property of the respondent in satisfaction of the Judgment debt but that the writ was returned for the reason that the respondent had no movable property on which to levy execution within the jurisdiction of the High Court; that upon the application of the judgment creditor, the High Court at Kaduna, on 19th April, 1969, granted leave for the sale of the immovable property of the respondent, namely, 7 Sokoto Road, Kaduna, in satisfaction of the judgment debt; and that, in compliance with this order of the Kaduna High Court, the Deputy Sheriff sold 7 Sokoto Road, Kaduna, for ‘a3313,000 to Alhaji Sanni Bakori as purchaser at a public auction held on 13th August, 1970.
By his affidavit, Mr. G. A. Obayan, counsel for the applicant in the lower court, averred that on 14th August, 1970, he reported the sale of the property in question to his senior partners, Messrs Irving & Bonnar at Kano, that he was then informed that the judgment debtor had settled the judgment debt and costs, but that no notice of the said settlement of the debt was given in time to the solicitors to revoke the order for sale. Mr. Obayan further averred that he returned from Kano on 15th August 1970, and thereafter wrote to the Registrar to stop making the sale absolute; and that he filed an ex parte motion on 20th August, 1970, to set aside the sale.
In his counter-affidavit, Mr. V. T. Ekuere, a Manager of the respondent, averred that on 15th April, 1969, the applicant/judgment creditor registered in the Lagos High Court a certificate of the judgment he had obtained in the Kaduna High Court; and that, in consequence of the writ of execution issued out of the Lagos High Court, the respondent paid to the applicant/judgment creditor the judgment debt together with costs. The purchaser who was not represented by counsel but who had been put on notice regarding these proceedings on 10th March, 1971, argued that he bought the property at a public auction and that he was not aware of any defect in the sale. He further stated that he paid the purchase price and obtained a Certificate of Occupancy from the Governor.
The learned trial judge noted that counsel for the applicant/judgment creditor drew his attention to the correspondence file of the Kaduna High Court Registrar in respect of a notice from the Registrar of the Lagos High Court to the effect that a writ of execution had been issued against the movable property of the respondent in Lagos on 16th April, 1969. He nevertheless proceeded thereafter to hold as follows:-
“From the foregoing I find that the sale of the property, 7 Sokoto Road, Kaduna, took place after the judgment debt had been liquidated; that neither the applicant/judgment creditor nor the respondent judgment debtor who were both aware of the settlement of the debt before the sale took any step to stop the sale.
I also find that the Deputy Sheriff and the purchaser were not aware of the fact that the judgment debt had been settled at the time of the sale. I find that the purchaser purchased in good faith.”
Both Mr. Razaq for the judgment debtor and Mr. Obayan for the judgment creditor contended that the sale was void and should be set aside because, the judgment debt having been fully paid before the sale, the execution was wrongful; and Mr. Obayan also argued that as the sale had not been made absolute at the time he filed his ex parte motion within 21 days of the sale, the provision of section 47 of the Sheriffs and Civil Process Law of the Northern States had been complied with. This section provides as follows:-
“At any time within twenty-one days from the date of the sale of any immovable property, application may be made to the court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the court that he has sustained substantial injury by reason of such irregularity.”
The learned trial judge cited Bate J.’s judgment in Attorney-General (North) v. Nigerian Embel Tin Smelting Ltd. and 3 ors., Suit No. JD/8/63 delivered on 23rd June, 1967 (unreported) to show that two irregularities were found in the execution proceedings which led to the sale being set aside. He observed that the irregularities were that the goods were unlawfully attached by the Deputy-Sheriff and that the latter had notice of a claim to the goods attached on the part of a third party before the sale and nevertheless failed to take interpleader proceedings to determine the claim to that third party. The learned trial judge, however, observed:-
“I find no evidence of any irregularity in the conduct of the sale. The order for sale was made before the liquidation of the judgment debt in Lagos. Neither the Registrar of this court nor the Deputy-Sheriff was notified of its liquidation. If there is any irregularity whatever, it was the negligence of the applicant/judgment creditor, who employed the process of the court to sell the property and the respondent/judgment debtor, who sold over their attached property in failing to apply to the court to revoke the order for the sale. Both parties are estopped from relying upon their negligence to deprieve a bona fide purchaser for value of the property.”
In order to emphasize this view that he took of the matter, the learned trial judge further observed:-
“I have also considered the notice of the issue of the writ of attachment from the High Court of Lagos to the Registrar of this court. The notice was received by the Registrar on 29th April, 1969, after this court had made the order for the sale of the property on 19th April, 1969. The notice did not indicate that the judgment debt had been liquidated. In fact it was not liquidated until 16th June, 1969. The notice therefore was not sufficient to supersede the order made by this court on 19th April, 1969, for the sale of the property as provided by section 22(2) of the Law: …”
The learned trial judge accordingly confirmed the sale of 7 Sokoto Road, Kaduna, to the purchaser, Alhaji Sanni Bakori.
Against this judgment the present appeal has been brought by both the judgment debtor and the judgment creditor who are ad idem in seeking to set aside the sale in order to have the property restored to its original owner. Chief F. R. A. Williams appeared for the defendant/appellant, while Chief H. O. Davies appeared for the plaintiff/applicant. Chief Davies applied for and was granted extension oftime within which to file an appeal and also leave to appeal on the ground that his client had found it convenient to appear in the case as an appellant, although his client was respondent in the court below. Chief Davies submitted that, if his request were granted, it would facilitate the subsequent proceedings on this appeal since he was ready to adopt the arguments of Chief Williams on behalf of his client on this appeal. After careful consideration, we granted Chief Davies’s request, and over-ruled the objection of Mr. M. Akanbi, learned counsel for the respondent/ purchaser. Chief Williams thereafter sought and was granted leave to file and argue certain additional grounds of appeal in partial substitution for the original grounds. For convenience, we set out the six agreed grounds of appeal:-
(i) that the learned trial judge erred in law and/or in fact by holding that the purchaser has a valid title of the house sold under a writ of execution for sale which was void ab initio and wrongful and illegal and of no effect whatsoever;
(ii) that the learned trial judge erred in law by holding that the High Court of justice, Kaduna, and the Registrar of the same court can lawfully issue out a writ of execution for the sale of immovable property in this suit when the High Court of Lagos State had been seized of all processes in the matter and that the Kaduna High Court had no more jurisdiction over the matter until a return is submitted to it from the High Court of Lagos State;
(iii) that the learned trial judge erred in law and/or in fact by holding that the appellant was estopped from complaining about the sale of his house at No. 7 Sokoto Road, Kaduna, under a writ of execution when there was abundant evidence before the court that at all material times of the sale of the house the appellant was not aware of the sale and neither was it put on notice until the 8th January, 1971, when the court joined it as a party to the application dated 20th August, 1970;
(iv) that the learned trial judge erred in law in taking and regarding the oral statement of the purchaser of the house during the proceedings of the application when no leave was granted to him by the court and in the absence of any affidavit from the said purchaser;
(v) that the learned trial judge erred in law in failing to observe that it was the duty of the Registrar of the High Court of Lagos State to notify the Kaduna High Court that the judgment debt had been satisfied not when he forwarded the notice which the learned trial judge said was received by the Registrar of the Kaduna High Court on 19th April, 1969 but forthwith upon satisfaction of the judgment by the appellant in June 1969;
(vi) that the learned trial judge exercised his discretion wrongly or failed to exercise the same judicially in setting aside the execution complained of having regard to the circumstances of the case and the
facts estabished before him.
Chief Williams chose to argue all the six grounds together, and his main arguments may be summarized under two main heads:-
(a) that the learned trial judge’s statement of the law in reference to the decision in the Attorney-General (North) case was correct but that its application to the facts of the present case was wrong; and
(b) that the learned trial judge’s decision should be regarded as having been given per incuriam since the relevant law which he should have applied is the Sheriffs and Civil Process Act, Cap. 189 (Vol 6, Laws of the Federation and of Lagos) which alone governs the execution of one State’s High Court judgment in another State, and not a particular State’s High Court’s Sheriffs and Civil Process Law, Vol. 3, 1963 Edition of the Laws of the Northern States as was wrongly done by the learned trial judge.
Chief Williams referred to the provisions of sections 104 and 105 of the Sheriffs and Civil Process Act (cap. 189) to support his argument that the registration of the judgment of the Kaduna High Court in the High Court of Lagos gave jurisdiction and control to the Lagos High Court over the matter of the execution of the judgment in question. It may be convenient to set out the provisions of sections 104 and 105 which are
as follows:-
“104. Any person in whose favour a judgment is given or made in a court of any State or part of the Federation may obtain from the registrar or other proper officer of such court a certificate of such judgment in the form and containing the particulars set forth in the Second Schedule or as near thereto as the circumstances will permit, which certificate such officer is hereby required to grant under his hand and the seal of such court.
- (1) Upon production of such certificate to the registrar or other proper officer of any court of like jurisdiction in any other State or part of the Federation such officer shall forthwith register the same by entering the particulars thereof in a book to be kept by such officer and to be called ‘The Nigerian Register of Judgments.’
(2) From the date of registration the certificate shall be a record of the court in which it is registered, and shall have the same force and effect in all respects as a judgment of that court, and the like proceedings may be taken upon the certificate as if the judgment had been a judgment of that court.
(3) For the purposes of this section-
(a) the High Courts (including any court deemed to be a High Court) of the several States and parts of the Federation are courts of like jurisdiction to one another;
(b) the magistrates’ courts exercising jurisdiction in the several States and parts of the Federation are of like jurisdiction to one another. ”
But Chief Williams’s main contention concerns section 110 of the Act which provides as follows:-
“110. (1) When:-
(a) a certificate of judgment is registered in any court; or
(b) any process is issued in any court upon such certificate; or (c) satisfaction of the judgment either in whole or in part is entered in any court upon any such certificate,
the registrar or other proper officer of that court shall forthwith notify the same in writing under the seal of the court to the registrar or other proper officer of the court in which the judgment was given or made.
(2) When any judgment whereof a certificate has been registered in any court has been satisfied in whole or in part, the registrar or other proper officer of the court in which the judgment was given or made shall forthwith, upon such satisfaction being made or notified as the case may be, enter such satisfaction upon the judgment and notify such satisfaction in writing under the seal of the court to the registrar or other proper officer of every other court in which a certificate of the judgment has been registered and such satisfaction shall thereupon be entered upon every such certificate.”
Chief Williams’s argument was that the Lagos High Court satisfied (a) and (b) of the said section, by notifying the Kaduna High Court on 25th April, 1969 (the learned trial judge’s reference to 29th April was in error).
We observe that section 110(a), (b) and (c) are in the alternative and are not cumulative. Chief Williams contended, rightly in our view, that it was for the Registrar of the Lagos High Court to notify the Kaduna High Court that the judgment has been satisfied and that the learned trial judge was wrong in blaming the appellants for this dereliction of duty on the part of the Lagos High Court Registrar. Chief Williams also contended that Order 4, r18 of the Sheriffs and Civil Process Rules of the Northern States provides that, after the issues of the writ of execution but before the sale, payment may be made to a number of court officials, including the bailiff and that the bailiff is an agent of the judgment creditor and acts only on the latter’s instructions: Order 2, r. 29(1) of the Rules of the Northern States.
Mr. Akanbi, learned counsel for the purchaser, was not unnaturally concerned mainly to protect the interest of his client. He submitted that the learned trial judge was correct in his view that neither the judgment creditor nor the judgment debtor had informed the Kaduna High Court that the purchaser had acquired a good title to No.7 Sokoto Road, Kaduna. We think that this submission is untenable. His client, the innocent purchaser, is not left without a remedy if the sale is set aside. Section 49 of the Sheriffs and Civil Process Act, cap. 189, contains the following provision for the return of the purchase’s money in such a case:-
“Wherever a sale of immovable property is set aside the purchaser shall be entitled to receive back any money deposited or paid by him on account of such sale, with or without interest, to be paid by such parties and in such manner as it may appear proper to the court to direct in each instance.”
On behalf of the appellants, Chief Williams submitted and we agree, that the payment of the debt by the judgment debtor rendered the issue of the writ of excution of 15th July, 1970 void ab initio and that the purported sale following the execution was irregular and should be set aside ex debito justitiae.
Finally, we think that the learned trial judge reached his conclusion per incuriam in that the provisions of section 110 of the Sheriffs and Civil Process Act which in the nature of things has no parallel in the Sheriffs and Civil Process Law of the Northern States were never brought to his notice.
In the result, we allow this appeal and make the following orders:(a) that the judgment of the Kaduna High Court of 30th March, 1971, be and is hereby set aside;
(b) that the writ of execution dated 15th July, 1970, together with all processes issued thereunder be and is hereby declared irregular, wrongful and null and void ab initio;
(c) that the purported sale of No.7 Sokoto Road, Kaduna, to Alhaji Sanni Bakori under the said writ, be and is hereby set aside;
(d) that the said house at No.7 Sokoto Road, Kaduna, be restored to its true owner, the appellant/judgment debtor;
(e) that the order dated 19th April, 1969, made by the High Court of Justice, Kaduna, be and is hereby declared null and void and of no effect;
(J) that the Certificate of Occupancy issued by the Governor to the purchaser/respondent as a result of the irregular sale be and is hereby revoked;
(g) that the purchaser/respondent should receive back the money paid by him on account of the void sale from the Deputy-Sheriff of the Kaduna High Court; and
(h) that the foregoing shall be the orders of this court.
We hereby order Alhaji Sanni Bakori, the purchaser/respondent, to pay 52 guineas cost to the appellants.
SC.247/1971
