S. O. Akinsete V Emmanuel Akindutire (1966)
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The appellant was the judgment creditor in a suit for debt commenced in the Magistrate’s Court at Ibadan. The respondent who was the judgment debtor appealed to the High Court at Akure and applied for a stay of execution of the judgment of the magistrate pending determination of the appeal in the High Court: he was unable to fulfil the conditions on which a stay was ordered and the appellant eventually obtained an order in the High Court to attach and sell by way of execution of the judgment of the magistrate the immovable property of the respondent.
Pursuant to this order a bailiff of the court attached and sold a storey house with two stores at Fagbo, Ondo, and a storey house at 24 Odojomu Street, Ondo, belonging to the respondent on the 14th of December, 1963; the two houses which were about fourteen miles apart were sold to the same purchaser, one Gbakaba, and each was sold for £145 although it was said to be worth about £2,000.
The respondent moved the High Court for an order setting aside the sales on the ground of irregularities in the conduct of the sales: these irregularities were said to be:
(a) That the judgment creditor’s son kept bidders away by threatening to shoot any one who came to bid with a double-barelled shot gun which he carried.
(b) That the two houses were sold at a gross under-value.
(c) That the bailiff did not allow people to bid for the property he was selling.
There were a number of affidavits filed in the High Court deposing to facts on which the allegations of irregularities were based; these affidavits were sworn by a number of deponents who claimed to be occupiers of the houses and by the judgment debtor and his landlord. On the other hand, the bailiff and the judgment creditor’s son swore to affidavits denying in detail the allegations made against them relating to the conduct of the sales.
The learned trial judge considered the affidavits and heard arguments of counsel: he was impressed by the facts that houses worth £2,000 each were sold for £145 each and that “two houses, situated about fourteen miles apart, were sold on the SAME day, bought by the SAME person, and each for the SAME amount” and accepted the allegation that bidders were scared away at the time of the sale.
In the face of the direct conflict of affidavits on crucial facts, the learned judge, we think, should have heard oral evidence from the deponents or such other witnesses as the parties may be advised to call. The judgment of Bannerman, J., on appeal which the West African Court of Appeal upheld in Government of Ashanti v. Adjuah Korkor, etc. 4 WA.C.A. 83 is authority for this.
It is, of course, open to the court to act on affidavit evidence in cases in which the facts are not disputed or in which the parties agree that this should be done; and it is only fair to say that in the present case neither side asked to be allowed to cross-examine any of the deponents or to call any witness. We do not however think that this omission by the parties can be taken to amount to consent that affidavit evidence be used in this case in which the facts in issue were irreconcilably in conflict.
For these reasons we allow the appeal. It is ordered that the order of the High Court at Akure (Fatayi Williams, J.) dated the 20th March, 1964, in Suit M/5/63 between S. O. Akinsete and Emmanuel Akindutire including the order for costs be and is hereby set aside, and that the application of Emmanuel Akindutire be reheard by another judge.
The respondent Emmanuel Akindutire will pay to the appellant S. O. Akinsete the costs of the appeal assessed at 52 guineas; the costs of the hearing in the High Court will abide the result of the rehearing.
Other Citation: (1966) LCN/1324(SC)