Jackie Phillips Photos Ltd. v. Far East Mercantile Co. Ltd (1974)
LawGlobal-Hub Lead Judgment Report
D. O. IBEKWE, J.S.C
This is an appeal from the decision of the Lagos High Court, Lambo J., as he then was, allowing the plaintiffs’ 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. L.D. 123/67) levied execution on, and places 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…d
(ii) Repairs to boat 212:15…d
(iii) Repairs to trailer 35…….d
(iv) Cost of Three chairs and one divan damaged 298….d
Cost of repairingdamaged T.V. Set
(vi) Cost of radiogramCompletely damaged 220: : d
General Damages 8,209: 9:5d
TOTAL 15,000: : d”
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:…:…d
(b) Repairs to Boat 212:15: d
(c) Cost of Radiogram
completely damaged 220: : d
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. Section145 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, 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 refeited. 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 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 until it is modified by statute. We are not aware that such statute has yet been made in this country.
We observe however, that under our law, by reason of Order II, rule 29(2) of the Judgment (Enforcement) Rules made under section 94 of the Sheriffs and Civil Process Act.Cap. 189, p.2309, Laws of the Federation of Nigeria and Lagos, the judgment creditor is liable for damage arising from any irregular or illegal proceedings taken at his instance. But that does not relieve the Sheriff and Bailiffs of any liability, which they would otherwise incur. For ease of reference Order II, rule 29(2), referred to above, is set out as follows:
“The party prosecuting the judgment shall be liable for any damage arising from any illegal or irregular proceeding taken at his instance.
It is evident that all that the above-mentioned rule does is to make the judgment creditor vicariously liable for any illegal or irregular proceeding taken on his behalf by the bailiff or any officer of the court. But the tortious liability of the Sheriff, Bailiff, or any other officer of the court at common law for wrongful execution still remains unchanged..
In the case before us, there is uncontradicted evidence that the [defendants] and their solicitor were, indeed, present at the scene of execution, and that they not only defied, but even prevailed upon the Bailiff to ignore the repeated warnings issued by the first plaintiff witness, Jackie Phillips, that the attached goods were not his personal property; and that they belonged to the plaintiffs. In the circumstances, we think that it was open to the learned trial judge to find as he did that the defendants/appellants were liable for wrongful and malicious execution.
It now remains for us to deal with the issue of special damages as awarded by the trial judge. For the purpose of accuracy, the special damages awarded by the lower court are, once again, set out as follows:
SPECIAL DAMAGES
(a) Loss of Commission 6,000: …:…d
(b) Repairs to boat 212:15:…d
(c) Cost of Radiogram
(completely damaged) 220: …:…d
Total 6,432: 15:…d
We shall now review them item by item:
As to item (a): loss of commission. We disallow this sub-head without hesitation. It is our view that this claim sounds too remote; in any case, it lacks strict proof which is what the law demands. According to the evidence led at the trial, the plaintiffs were to sell the view-cards to the Viewcards Ltd. And as we have stated earlier on in this judgment, Viewcards Ltd. is one of the inter-locking companies founded and registered by Jackie Phillips. The Viewcards Ltd., in turn, were to sell the cards to the A.G. Leventis Company on a speculative commission basis. It is important to stress here that there is no privity of contract between A.G. Leventis Company and Jackie Phillips Photos Ltd., the plaintiffs in this case. And as the Viewcards Ltd. are not parties to the present action, the claim by the plaintiffs under this sub-head does not seem to us to be tenable.
Now as to item (b): There is ample evidence in the record of appeal in support of this particular claim. The learned trial judge accepted that piece of evidence and, therefore, awarded the plaintiffs that amount. We consider the award just and equitable.
Finally, as to item (c): We doubt, without reaching a conclusion, whether the plaintiffs could recover the sum 0220:d, which represents the full value of the radiogram that was damaged. Curiously enough, no evidence was led in the court below as to the age of the radiogram at the material time; consequently, no account was ever taken of depreciation. Furthermore, the defendants never raised this issue at the time of trial; rather, they attacked this particular item of claim on an altogether different ground. And as the learned trial judge rejected the defence on this point, we, too, have reluctantly decided to allow the award under the sub-head to stand.
In consequence of the views which we have expressed the plaintiffs are entitled to 6,432: 15:0d less 6,000, the balance of which is 432: 15:0d. We accordingly award 432: 15:Od to the plaintiffs.
The appeal therefore fails on the substantive issue and it is dismissed. We however, amend the figure awarded from 6,432: 15:0d to 432:15:0d (N65.50). And this shall be the judgment of the court. In view of the turn, which the appeal has taken, we will make no order as to costs in this Court.
Other Citation: (1974) LCN/1858(SC)
