Willaims I. A. And Anor V Karimu Sanusi (1961)

LawGlobal-Hub Lead Judgment Report

BRETT, AG. C.J.F

The appellant is one of the six Registered Trustees of the Enitonna High School, Port Harcourt, who have received a certificate of incorporation under the Land (Perpetual Succession) Ordinance and may thus be sued in their corporate name. In 1957 the respondent brought an action in the Eastern Region High Court against the appellant and one of the other trustees, heading his claim.

The claim was for damages for breach of contract and the refund of the sum of £5,500 paid as the purchase price of a piece of property at 12 Bonny Street, Port Harcourt, which the defendants had agreed to sell to the plaintiff. No issue was raised as to the capacity in which the defendants were sued, and the judgment given in the plaintiffs favour contains no reference to it. The judgment was unsatisfied, or at least not satisfied in full, and the respondent, as judgment creditor, secured the attachment of the landed property of the appellant situate at No. 98/100 Bende Street, Port Harcourt. The appellant’s claim that he is not personally liable on the judgment, and that his property cannot be attached and sold in satisfaction of the judgment, was rejected by the High Court of the Region and the present appeal is against the decision rejecting that claim.

When the appeal first came up for consideration it appeared that the interests of the Registered Trustees might be affected and since the trust seemed prima facie to be a charitable one. we invited the Attorney-General of the Eastern Region to arrange for the Registered Trustees to be rep-resented. At the hearing, Mr.s Egwuatu, Crown Counsel, appeared on their behalf, but it is now clear, and is common ground between the parties, that whatever rights of indemnity the appellant may have against the Registered Trustees the corporate body is not liable under the judgment obtained against the appellant and Mr. Wilson.

In the High Court it was held that the conditions attached to the Certificate of Incorporation empowered the Trustees to accept and acquire land and hold it in trust, but not to sell it, and that the appellant must be held personally liable on the judgment because he acted ultra vires in agreeing to sell the land. This point had not been argued and I am unable to agree with the view which the learned judge formed. Section 2 (3) of the Land (Perpetual Succession) Ordinance provides that on the grant of a Certificate of Incorporation the trustees “shall have … power … subject to the conditions and directions contained in the said certificate to hold and acquire and by instruments under such common seal to convey, assign and demise any land or any interest therein …” In my view only an express prohibition in the conditions could take away the statutory power of conveying land and I think it was a mistake to hold that the agreement to sell was ultra vires.

Even if I shared the view of the learned Judge as to the powers of the Trustees, I should feel obliged to hold that he was wrong in basing his decision on that view, not only because the issue had not been argued before him but because the issue was irrelevant to the question which he had to determine, which was the effect of the judgment which it was sought to enforce, and nothing more. In the proceedings leading up to that judgment, questions of law relating to the personal liability of trustees, or of members of corporate bodies, would have been highly relevant, but the sole question in the present proceedings is whether the judgment as recorded does in fact hold the appellant personally liable, not whether it ought to have done so. In my opinion it does. No appeal having been brought against it, it is unquestionably a valid and subsisting judgment in which the appellant is named as one of the persons against whom it is given, and whatever effect the inclusion of the words “For and on behalf of Trustees of Enitonna High School” may have it is agreed that they do not make the trust property or the other trustees liable. No authority has been cited to us for the proposition that the use of such words relieves the named defendant of liability, while not imposing liability on any other person, and I would treat the words used as mere surplusage. What the appellant says is that there has been an unsuccessful attempt to make him and Mr. Wilson liable in a representative capacity, and that the omission of the words “for themselves” from the description of the defendants prevents the judgment from being enforceable against them personally, and makes it, in the result, enforceable against no-one. It is for the appellant to establish that the judgment is not enforceable against him personally, and once again I think the argument comes too late. If the point had been raised during the trial of the substantive issue it could have been ascertained whether the reference to the Trustees was intended to mean the Registered Trustees as a corporate body or the six individual trustees, who may, for all that now appears to the contrary, have incurred a personal liability, and an appropriate amendment could have been applied for if necessary, or the action against the defendants could have been withdrawn.

As it is, the appellant is himself one of the trustees and since the words used are just as capable of referring to the individual trustees as to the corporate body he is one of the persons “for and on behalf of” whom judgment was given against him. For this reason, even if I am wrong in regarding the qualifying words as mere surplusage, I would hold that the judgment is enforceable against the appellant personally. On these grounds I would dismiss the appeal, with costs to the respondent assessed at 21 guineas.

UNSWORTH: F.J

I concur.

TAYLOR, F.J. (Dissenting):

I have had the benefit of reading the majority judgment of my Lords Brett, F.J. and Unsworth, F.J., and regret that after full consideration of the issues involved in this appeal, I find myself unable to agree with the views expressed in the majority judgment on what I consider the two main issues, for the reasons contained in this judgment.

This is an appeal from the judgment of Egbuna Ag. J., in an interpleader suit, which arose as a result of an attachment of the property of the present appellant, consequent upon a judgment obtained against the defendants in suit P/22/1957. The defendants in that suit were described as “I. A. Williams, G. C. Wilson (For and on behalf of Trustees of the Enitonna High School, Port Harcourt)”. The judgment in that suit was exhibited as exhibit “2„ and was delivered on the 12th December, 1957. It opens with the following words:–

The facts of this case are not really in dispute. The plaintiff agreed with the defendants to purchase from them a property used as a school of which they were Trustees.

and in the penultimate paragraph the learned Judge held that:–

In the result therefore I assess damages at £40 per month with effect from 1st June, 1956 until the date on which the sum of £5,500 is repaid. If part payment is made, then damages will be pro rata from the date of part payment. From the damages thus assessed must be deducted the sum of £300 already paid by the defendants as advance rent, but the sum of £55 stamp duty paid on the agreement will be added.

There has already been interim judgment for the sum of £5,500 and it only remains to assess Costs.

It is clear from this judgment that the final sum awarded was liquidated at a later stage, which, from the writ of attachment, would seem to have been the 20th February, 1958. Such writ reads as follows:–

WHEREAS on the 20th day of February, 1958, this Court gave judgment to the plaintiff in the sum of £3,402-1s-5d being judgment debt, costs, and interest awarded to plaintiff up to 29–11-58.

AND WHEREAS default has been made in payment according to the said judgment/order and upon the application of the plaintiff it was on the 2nd day of December, 1958 ordered that execution should issue for the sum of £3,402-1s-5d being part of the sum remaining unpaid:

It then goes on to order the distress and sale of the goods and chattels of the defendants who are said to be I. A. Williams and G. C. Wilson. The writ was accordingly executed, and, after certain disbursements were made, the sum of £122-18s-Oil was paid into Court on the 4th July, 1959. It is of course clear that this sum was insufficient to cover the judgment debt. The next step appearing on the record, was the notice by the appellant that he claims the property attached, situate at 98/100 Bende Street, Port Harcourt. The writ of attachment of the property, which presumably was issued, was not made an exhibit in the Interpleader suit, nor was a copy of the judgment of the 20th February, 1958 exhibited. At the hearing of the Interpleader summons on the 18th March, 1960, Counsel for the appellant contended that the property sought to be attached was the personal property of Mr.. I. A. Williams, and that it could not be levied upon for a judgment obtained against Mr. I. A. Williams and another, defending for and on behalf of the Trustees of the Enitonna High School. The learned trial Judge held that:-

The point is whether the judgment debtor, who was one of the Trustees of the Enitonna High School, is personally liable in view of the fact that he obtained this money (£5,500) in his capacity as a Trustee of this school? The principle is that being a Trustee of the school and acting in that capacity he is not personally liable if he did

Other Citation: (1961) LCN/0907(SC)