Far East Mercantile Co. Ltd V. Jackie Phillips Photos Ltd (1974)

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D. IBEKWE, JSC.

This is an appeal from the decision of the Lagos High Court, Lambo J., as he then was, allowing the plaintiff’s claim for damages for wrongful execution against the defendants. The facts of this case are interesting. As is sometimes the case in the business world, one Jackie Phillips, who is the principal actor in this case is reputed to be the founder of the following inter-locking companies:-  

(1) J. P. Investment Ltd., (2) Jackie Ltd. (3) Viewcards Ltd., and (4) Jackie Phillips Photos Ltd. As a matter of fact, the last-named company, Jackie Phillips Photos Ltd., is virtually owned by him. In the words of Jackie Phillips himself:- “In the Plaintiff/Company I hold 99%, the remaining share is owned by my sister – Lydia Oyedele.”

It happened that Jackie Phillips was a defendant in Suit L.D. 123/67 in which the Far East Mercantile Co. Ltd., the present defendants were the plaintiffs. Judgment was given in favour of the plaintiffs in that case against Jackie Phillips personally. When however, the judgment debtor (Jackie Phillips) failed to satisfy the judgment debt, the present defendants in their capacity as the judgment creditors in the former suit, took out a writ of fieri facias against him.

It is relevant to observe here that at the time the writ of execution was issued, Jackie Phillips, the judgment debtor – was also the Managing Director of Jackie Phillips Photos Ltd., a limited liability company who are the plaintiffs in the present case. Incidentally, the plaintiffs’ principal witness at the trial of the present action was this same Jackie Phillips. Part of the evidence given by him, and which was accepted by the learned trial Judge, was to the effect that nearly all the goods in the premises which he then occupied belonged to the plaintiffs, Jackie Phillips Photos Ltd., and not to him personally.  

On the 26th September, 1967, the bailiff, acting on behalf of the Far East Mercantile Co. Ltd., the present Defendants, who as we have already remarked, were the judgment creditors in the former case (suit No. LD.123/67) levied execution on, and placed under seizure, several articles found at the premises of Jackie Phillips, the Managing Director of Jackie Phillips Photos Ltd., (the plaintiffs in the present case).

It was stated in evidence by the plaintiffs that, throughout the operation, both the bailiff and the defendants were repeatedly warned that the properties upon which they were levying execution belonged not to Jackie Phillips personally, but to the company; but that the defendants were adamant. The plaintiffs’ story on this point was accepted by the learned trial Judge.   On the 24th day of January, 1968 the plaintiffs, Jackie Phillips Photos Ltd., commenced this action against the defendants, the Far East Mercantile Co. Ltd., claiming “fifteen thousand pounds (£15,000) being special and general damages for wrongful and malicious execution levied on attachment of, or trespass to, the plaintiffs’ goods on the 26th September, 1967.” The plaintiffs also set out the particulars of special damages suffered by them as follows:- 1     Special Damages: (i)     Loss of Commission    £6,000 (ii)     Repairs to boat     212 : 15 (iii)     Repairs to trailer    35 (iv)     Cost of Three Chairs and one divan damaged     298 (v)     Cost of repairing damaged T. V. Set     24: 15: 7 (vi)     Cost of radiogramCompletely damaged     220: 5 2.    General Damages      £8,209: 9 : 5d      TOTAL     £15,000

Pleadings were ordered and filed, and the case then proceeded to trial. Suffice it to say that it was in respect of the ownership of the goods seized by the bailiff that the decision in this case was given. In a reserved judgment, the learned trial Judge, Lambo J., decided the issue of liability in favour of the plaintiffs, and after a careful review of the evidence before him, stated as follows:-  

“I am clearly of the opinion that the goods itemised under the claim for special damages are the property of the Plaintiff Company against which the defendants had committed acts of trespass by reason of their unlawful attachment of those goods.” Finally, the learned trial Judge then dealt with the items of special damages as pleaded and, after a careful consideration, awarded damages against the defendants as follows:- Special Damages (a)    Loss of Commission    —–     £6,000 (b)    Repairs to boat    —–     212: 15 (c)    Cost of Radiogram completely damaged    —–     220

It is from this decision of Lambo, J., in the Lagos High Court that the defendants have now appealed to this court. Arguing the appeal before us, Mr. Fola Sasegbon launched a formidable attack on the judgment of the learned trial Judge. Learned Counsel first drew our attention to a certain passage of the judgment, and then submitted that the trial Judge erred in law in applying the provisions of Section 145 of the Evidence Act Cap. 62 as he did, without in any way adverting his mind to the peculiar circumstances of the case before him. The portion of the judgment complained of reads as follows:-  

“It is clear to me that at the material time the Plaintiffs were in possession of the attached goods and this raised in their favour the presumption of ownership; the attitude of the Defendants and their agents on the other hand, was that they were not the owners and so must prove that the goods did not belong to them.

However, under Section 145 of the Evidence Act. Cap. 62, the burden of proving this fact is on the Defendants, and not on the Plaintiffs. Section 145 reads as follows: “When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.”

In my opinion the Defendants have failed to prove that the Plaintiffs are not the owners of those goods unlawfully attached by them.” Mr. Sasegbon’s main contention is that, as there are extenuating circumstances surrounding the present case, whereby Jackie Phillips appears, so to say, to enjoy “dual personality,” it would be unreasonable to base the determination of ownership of the attached goods on a presumption rather than on positive evidence.

According to learned counsel, it is almost impossible to draw any hard and fast line between the identity of Jackie Phillips as the Managing Director of Jackie Phillips Photos Ltd., and Jackie Phillips the judgment debtor simpliciter; for, there seems to be two persons in one.  

We agree with learned counsel for the appellants that, in so far as ownership of the attached goods is concerned, the unique nature of this case does not seem to warrant a mere presumption in favour of either party, because of the ‘dual personality’ of Jackie Phillips to which, we have already referred. We think that the question of ownership of the goods attached in the present case calls for proof and not presumption. It seems to us that there is substance in the complaint made by Mr. Sasegbon in this regard.

We have therefore, come to the conclusion that the learned trial Judge erred when he presumed that the onus was on the defendants to prove that the plaintiffs are not the owners of the attached goods. In our view, the burden lay squarely on the plaintiffs to prove that they are the owners of the goods which they claim were unlawfully attached by the defendants, since ostensibly they were in the possession of Jackie Phillips.

Be that as it may, we are satisfied that no mis-carriage of justice has thereby been occasioned as a result of this particular error into which the learned trial Judge has fallen. Clearly, the course adopted by him in this regard was uncalled for, more especially as there was before him ample evidence adduced by the plaintiffs in support of their claim to ownership of the attached goods; and we consider that that evidence was enough to justify the learned trial Judge’s finding that the attached goods were the properties of the plaintiffs/respondents.  

We see no reason, therefore, to disturb the decision of the learned trial Judge on this ground of appeal. As we have stated, counsel for the appellants placed great reliance upon this error committed by the trial Judge, and it seems to us only fair that we should deal with it at some length, although we think that it does not at all stand in the way of our decision. On the whole, we are satisfied that the issue of liability was properly decided by the court below.

It is good law to say that under a writ of fieri facias the bailiff or any other officer of the court is permitted only to seize the goods of the judgment debtor, and that if he seizes any goods of a third party, he does so at his peril. Under the common law rule, a Sheriff who seizes and sells goods not belonging to the judgment debtor makes himself liable in conversion to the true owner. The Sheriff’s liability under the common law seems to be absolute; it operates, unless, and un

Other Citation: (1974) LCN/1858(SC)