C. Anueyiagu & Anor V. Deputy Sheriff, Kano (1962)

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UNSWORTH, FJ

This is an appeal from a decision of the High Court of the Northern Region of Nigeria, awarding the respondent the sum of £700 under a bond, which was in the following terms:-

KNOW ALL MEN by these present that we C. Anueyiagu of 93 Church Road, Kano, and N. Nwofo of 18 Abeokuta Road, Kano, are jointly and severally held and firmly bound to THE DEPUTY SHERIFF in the sum of £700 to be paid to the said DEPUTY or his certain attorney, executors, administrators, or assigns, for which payments to be well and truely made we bind ourselves, and each and every one of us, in the whole, our and each of our heirs, executors, and administrators jointly and severally, firmly by these presents.

SEALED with our seals, and dated this 18th day of May, 1959.

WHEREAS A WRIT of a Fi-fa has been issued by the said judgment creditors upon which Bedford Lorry KB 1762 has been attached by the said Deputy Sheriff, AND WHEREAS O. C. Nwora has claimed as owner of the said property and enters into a bond with two Sureties to prosecute the said Claim. Now the condition of this obligation is such, that is the above bounden O. C. Nwora do successfully prosecute the claim then this obligation shall be void and of none effect, otherwise the same shall remain in fully force and virtue.

Counsel for the appellants filed and argued a number of grounds of appeal, but after considering the record, and the submissions of Counsel, I have reached the conclusion that there are only two points of substance for consideration, namely- (a) whether the claim for the enforcement of the bond must can be brought in the name of the Deputy Sheriff; (b) whether the bond be construed merely as a security against the loss or diminution in value of the property pending the decision of the court in the inerpleader proceedings.

The Deputy Sheriff entered into this bond in his official capacity as an officer of the Government and any claim to enforce the bond is therefore a Government claim to which the Petitions of Right Act (chapter 167 of the 1948 edition) applies. The title to that Act is misleading in that the Act deals not only with petitions of right, but also with claims by the government against private parties. Section 2 of the act provides:-

Claims by the Government of the Federation or a Regional Government or by any department of the Federation or of a Regional Government against any private person shall be brought by the Attorney-General of the Federation or of the Region as the case may be or by any officer authorised by law to prosecute such claims on behalf of the Government.

The question for decision on this first point is, therefore, whether the Deputy Sheriff in his official capacity, is an officer authorised by law to prosecute the claim on the bond. The office of Sheriff is created by the sheriffs and Civil Process Act (chapter 205 of the 1948 edition) and under the definitions in that act the sheriff includes a Deputy Sheriff. The Act clearly contemplates in Form 9 of the Schedule, that the Sheriff may be a party in his official capacity to legal proceedings, but it does not expressly provide that he may sue in that capacity. Section 32 of the Act, however, authorised the sheriff to take a bond in his official capacity, and it seems to me to follow that the legislature must be taken to have authorised him to sue on that bond. In these circumstances I think that the claim for the enforcement of this bond was properly brought in the name of the Deputy Sheriff.

The question whether the bond can be enforced as a security only, necessitates consideration of the circumstances in which the bond was given. The history of the matter is that on the 20th February, 1959 the Deputy Sheriff seized in execution a motor lorry presumed to belong to a judgment debtor named MODOZIE. A third party named NWORA claimed the lorry and, pending the result of the interpleader proceedings, the Deputy Sheriff released the lorry to the claimant after the two appellants had entered into the above-mentioned bond. The claimant lost the interpleader proceedings and thereupon returned the lorry to the Deputy Sheriff as the Court had held that it did not belong to him. The Deputy Sheriff refused to accept the lorry but sought to enforce the bond for the recovery of the full £700.

Counsel for the Deputy Sheriff argued that he was entitled to look to the strict terns of the bond. On the other hand, Counsel for the appellants submitted that the court must look to the law under which the bond was taken in order to ascertain whether it is security only. The bond was taken by the Deputy Sheriff under section 32 of the Sheriffs and Civil Process Act, which provides:-

(1) Where a claim is made to or in respect of any property attached in execution under process of a court, the claimant may-

(a) deposit with the Sheriff either-

(i) the amount of the value of the property claimed; or