T. B. Ogunmade Vs Chief E. A. A. Fadayiro (1972)

LawGlobal-Hub Lead Judgment Report

B. A. COKER, J.S.C.

The appellant was the plaintiff in an action which he had instituted against the present respondent, as defendant, in the High Court, Ibadan and in which he had asked for a declaration of title to and possession of property in Ibadan situate at “Ogunsina Village near Jericho Reservation, Ibadan, in the Western State of Nigeria purchased by the plaintiff under and by virtue of a conveyance dated the 16th October, 1967.”

The plaintiff also asked for mesne profits at the rate of 700p per annum from the 1st May, 1968 until the date of possession and an amount of 370p being “money had and received by the defendant to the use of the plaintiff paid to the defendant by the United States Agency for International Development.”

The gravamen of the plaintiff’s case both on his statement of claim and the evidence given at the trial was that pursuant to an order of court the property in dispute originally belonging to the defendant was sold in execution in satisfaction of a judgment debt and purchased by the plaintiff but that the defendant would not give up possession of the house.

On the other hand, the statement of defence filed by the defendant whilst not denying the fact of the judgment debt and the failure to satisfy same contends in paragraphs 8-13 thereof as follows:

“8. The defendant will contend at the trial that the house (‘the property’) has not been sold or in the alternative that the sale of the house is illegal ultra vires void and of no effect.

9. The defendant will contend at the trial that the instrument purported registered as No. 32 at page 32 in volume 1029 in the Lands Registry in Ibadan is not a registrable instrument both at law and in equity.
10. The defendant will contend that the sale of the house for the sum of 2,500pounds is not a fair price having regard to the circumstances of the case.
11. That the house was knowingly sold for much less than its value.
12. That the defendant will contend at the trial that the purported sale by the vendors of ‘the property’ is irregular, fraudulent, collusive and should be set aside.
13. The defendant will contend at the trial that having regard to all the circumstances of this case it is inequitable to allow the sale of the house to stand.”

At the trial the plaintiff called evidence to prove the judgment debt, the failure to satisfy it and the sale of the property to himself by private treaty conducted by a licensed auctioneer. He also produced, and this was admitted in evidence as exhibit A, the order of court in pursuance of which the defendant’s property was sold as well as the conveyance executed in his favour by the judgment creditors. The conveyance was admitted in evidence as exhibit B. In his own evidence, the defendant admitted the judgment debt and his failure to pay even the instalment agreed upon by the parties, but denied knowledge of any further steps being taken in the case. In a reserved judgment, the learned trial judge, Ayoola J. summarised the whole case and the issue raised thereby as follows:-

“This case can be decided on a narrow compass, namely whether subsequent to the order permitting the property to be sold by private treaty instead of by public auction, the sale could be carried out by ANYONE OTHER than the DEPUTY SHERIFF or anyone acting directly under his instructions. The evidence in this case is that the judgment creditor carried out the sale. After the order permitting sale by private treaty, he did not leave it to the sheriff or bailiff to carry out the order of the court, he took it upon himself-instructed his lawyer, Mr. Okubadejo, to ‘execute the order.’ Mr. Okubadejo instructed auctioneers on the judgment creditor’s behalf.”

The Learned trial Judge then made some references to the history of writs of execution generally and observed thus:-

“The sale of any immovable property, as enjoined in Order VI, rule 7(1) of the Sheriffs and Civil Process Rules must be by public auction ‘unless the Court otherwise orders.’ But in every case, whether the sale is by private treaty or by public auction, it is my considered view, that the sale must be carried out by the sheriff or bailiffs acting by his directives. If the services of auctioneers are needed, it is for the sheriff or bailiff to instruct them, not the judgment creditor or his solicitors. The sheriff takes an oath and his duties, powers and obligations are carefully laid down by statute so as to ensure fair play and justice. He is also given statutory protection whilst discharging his duties.”

The Learned trial Judge eventually concluded his judgment by which he dismissed the plaintiff’s case as follows:-

“In the final analysis therefore, I hold that there had been no ‘execution’ of the court’s order of 18th September, 1967 permitting the sale by private treaty. Neither the registrar nor anyone can validate an invalidity-and consequently everyone who took part in furthering the purported sale by the judgment creditor of the property in dispute was on journeys of his own, and not in due service of the order of court nor of the provisions of the Sheriffs and Civil Process Law.

The purported title of the plaintiff in this case suffers a fundamental defect: it is void and of no effect. He is therefore entitled to none of the reliefs he claims. His action is accordingly dismissed with costs which I shall now assess in the defendant’s favour.”

The plaintiff appealed against this judgment to the Western State Court of Appeal where a number of grounds of appeal were filed and argued. In the course of its judgment, the Court of Appeal directed itself thus:-