E. Buhler & Company & Ors V. Caroline Johnson (1935)
LawGlobal Hub Judgment Report – West African Court of Appeal
Garnishee-Respondent.Payment out of Court by Chief Registrar of moneys realised by sale of Defendant’s realty—Attempt to garnish.
Held : Moneys could not be garnished.
The facts are sufficiently set out in the judgments.
A. L. Johnson for Plaintiffs-Appellants. A. R. 117. Sayle for Garnishee-Respondent.
The following judgments were delivered :—
According to Mr. A. L. Johnson, who is counsel for the appellants in each of these cases, the second of them is exactly similar to the first. I think we must assume that Mr. Johnson’s statement in that respect is quite correct, since no one has contradicted it or questioned it in any way before us. At the same time it appears to be necessary to mention the fact that we know next to nothing about Messrs. Sick & Co.’s ease, and we have to decide the appeal in that case on the assumption that it is so exactly similar to Messrs. E. Buhler & Co.’s case as learned counsel on both sides have led us to believe. I shall, therefore, in this judgment deal with the facts in Messrs. Buhler’s case only, and it will be convenient to deal with them in chronological order.
On the 18th of May, 1932, Caroline Johnson mortgaged her premises known as No. 10 Victoria Street, Lagos to the Bank of British West Africa, Limited, apparently to secure whatever sum might become due to them from her • on her current account.
On the 9th day of January, 1933, Messrs. Buhler & Co. ,btained judgment against Caroline Johnson for the sum of 5s. Od. and £12 12s. Od. costs.
On the 8th of June, 1933, Caroline Johnson conveyed the same premises known as No. 10 Victoria Street, Lagos, to Messrs. Coates & Co. by way of second mortgage, apparently to secure whatever sum might be or become due to them from her for goods supplied on credit.
On the 28th of August, 1933, the Bank obtained judgment against Caroline Johnson for the sum of £927 5s. Od. and £34 13s. Od. costs, such judgment debt and (apparently) costs to bear interest at the rate of five per cent per annum until payment.
On the same 28th of August, 1933, Messrs. Coates & Co. obtained judgment against Caroline Johnson for the sum of £1,614 8s. ld. due in respect of goods sold and delivered and £39 18s. Od. costs. They also obtained an order for the sale of Caroline Johnson’s premises known as No. 10 Victoria Street, Lagos, although they were not suing in their capacity of mortgagees under their second mortgage of the 8th of June, 1933. A good deal of criticism has been directed to that order, and when one reads the Writ of Summons in that case and the record of the proceedings in Court, it does seem a little difficult to understand on what grounds that order was made. On the other hand it cannot be denied that the Court has jurisdiction to make such an order in a proper case, and since no appeal was made against the order in question, it seems to me that we must assume that the learned Judge considered the circumstances justified the order and that the defendant Caroline Johnson raised no objection thereto. For these reasons I am clearly of opinion that that order was not the nullity Mr. Johnson proclaims it to have been.
On the 4th of September, 1933, the Bank sued out a Writ of Fi Fa for the purpose of levying their judgment debt, costs and interest due thereon from the movable or immovable property of their judgment debtor Caroline Johnson, and under that Writ of Fi Fa Caroline Johnson’s premises known as No. 10 Victoria Street, Lagos, were attached by the Sheriff.
On the 4th of September, 1933, it is said that the Bank obtained an order appointing a Mr. S. Thomas, licensed Auctioneer, to sell No. 10 Victoria Street on behalf of the Sheriff. The Record of Appeal contains no copy of any such order, but as there are several references to it in the proceedings before the learned Chief Justice, it seems only reasonable to conclude that such an order must have been made.
On the 14th of September, 1933, Messrs. Coates & Co. obtained an order appointing the same Mr. S. Thomas to sell the same premises known as No. 10 Victoria Street by private treaty or public auction ” subject to a judgment under a first mortgage of the same premises obtained by the Bank of British West Africa.” Mr. Johnson criticised this order at some length on the ground that the motion on wnich it was made was unsupported by
any affidavit, but it seems repsonably clear that there was an affidavit in support which has not been included in the rec3rd, and I do not think it necessary to say anything more on that point.
On some date or other between the 14th of September, 1933 and the 2nd of March, 1934, Mr. S. Thomas, operating under these two last mentioned orders of the 4th and 14th of September, 1933, was successful in selling No. 10 Victoria Street by private treaty:
After payment of his commission and, apparently, certain other expenses, he handed over the net proceeds of sale amounting to £1,342 to the Deputy Sheriff who paid that sum of money into the Treasury at Lagos in two separate amounts viz. :—
£965 ” being part payment of net proceeds of sale in the action The Bank of British West Africa v. Caroline Johnson, and
£477 ” being balance of net proceeds of sale ” in the same action.
The Treasury receipts for these amounts are both dated the 2nd of March, 1934, and on the same date the Deputy Sheriff made his return under Rule 19 of Schedule VI to the Supreme Court Ordinance from which it appears that No. 10 Victoria Street, Lagos, had been sold not only under the Writ of Fi Fa issued on the 4th of September, 1933, in the Bank case, but also under the Order of Sale made on the 28th of August, 1933, in Messrs. Coates’ case.
On the same 2nd of March, 1934, the following note was made by Mr. Justice Butler-Lloyd in the Court Record Book:—
” Q. B. Coates v. C. Johnson
Mr. Oddie on behalf of plaintiff informs the Court that the property referre4 to in the order of 14 September has been sold and that he hid arranged with the first mortgagees that the whole of the proceeds be handed to them and their receipt shall be a good discharge for the purchase money.”
(Sgd.) W. B. Lloyd.”
I have set this note out in full because it has been contended that it amounts to an order for payment out, though nothing even faintly resembling an imperative can be found anywhere within its four corners.
The next date of importance is the 5th of March, 1934, when the sum of £967 Os. 6d. was paid out to the Bank in satisfaction of their judgment of the 28th of August, 1933, apparently in pursuance of Rule 20 in the sixth Schedule to the Supreme Court Ordinance, and that payment left the sum of £474 19s. 6d. still in Court.
On the 6th of March, 1935, both Messrs. Buhler & Co. and Messrs. Coates & Co. applied to the Supreme Court for a Garnishee Summons to issue in respect of this sum, Messrs. Buhler & Co.‘s application being received in the forenoon of that day and Messrs. Coates & Co.’s application being received several hours later.