O. W. J. Grozmann V. John Buada & Ors. (1938)

LawGlobal Hub Judgment Report – West African Court of Appeal

Application to set aside an Order made ex-parte to draw money out Divisional of Court.CourtSale under Fi Fa—Legal estate together with equity of redemption sold—irregularity in notice of sale.

Held: Whole property was intended to pass and did in fact pass and that sale was in order.

Appellant appealed against judgment to West African Court of Appea which dismissed appeal.

Appeal dismissed the Court being unable to set aside the Judge’s order authorising payment.

There is no need to set out the facts.

Frans Dove for Appellant.

J. TV . Mead for Respondent.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND YATES, J.

In previous proceedings between the same parties before the same Judge the appellant sought to set aside the sale of property taken in execution by the judgment-creditor on the ground that there were irregularities in the conduct of the sale.

One of the five irregularities relied on was that the notice of sale purported to sell the whole property whereas the judgment-debtor had only an equity of redemption the property having been mortgaged to Mary Joseph by a legal mortgage.

The point haVing been put in issue the Judge decided it. In his judgment dismissing the application the Judge held, inter alia_s that the whole interest in the property, free of the mortgage, was intended to be and was in fact sold.

Appellant appealed against that judgment. In the fourth of his grounds of appeal it will be seen that he alleged that the decision that the sale under the notice of sale was of the whole interest of the mortgagee Mary Joseph was erroneous in law.

This Court dismissed that appeal on the ground that it agreed with the trial Judge that there were no irregularities in the sale by which the appellant was damnified so as to entitle him to get the sale set aside. The judgment was silent as to what estate passed to the purchaser.

It is clear that the very point which the appellant wanted the Court below to decide in his favour in the proceedings the subject matter of this appeal, was one of those raised by his counsel on his previous application and decided against him.

In the 2nd Edition of Everest & Strode on Estoppel at page 56 it is stated that ” as regard judgments in persona* or inter partes, ” the general rule is, that an allegation upon record, upon which ” issue has been once taken and found, is, between the parties ” taking it and their privies, conclusive according to the finding ” thereof, so as to estop the parties from again litigating that fact ” once so tried and found “.

It having been held in the first proceedings that the whole of appellant’s property did in fact pass to the purchaser we are of the opinion that the appellant was estopped from alleging the contrary in the Court below notwithstanding the terms of the certificate of title of the 29th December, 1937.

It results from the finding of the Judge in the Court below that the legal estate in and equity of redemption of the property seized and sold realised £1,420, less auctioneer’s charges £99 7s. 11d., i.e., £1,320 12s. ld.

This sum was paid into Court by the Deputy Sheriff and out of it the trial Judge ordered the payment of £389 7s. 9d. to 0. W. J. Groszmann, the execution-creditor, in respect of the judgment debt and costs. We are not asked to set aside or vary that order.

Out of the balance of £931 4s. 4d. remaining the trial Judge authorised the payment of £825 and costs amounting to £19 4s. Od. to 0. W. J. Groszmann on his solicitor undertaking that these two sums would be paid to Mrs. Mary Joseph the mortgagee. It results from our conclusion that we are unable to set aside the Judge’s order authorising the payment of this sum of £844 4s. Od.

The appeal is dismissed with costs assessed at £23 19s. Od.