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:-

“Now, in our view, this appeal lies on whether any person without the order or consent of the sheriff could undertake the sale of properties which are under attachment of the court. It would be necessary to make reference to some of the provisions of the Sheriffs and Civil Process Law.”

The Court of Appeal then considered extensively the provisions of the Sheriffs and Civil Process Law, Cap. 116 and in particular sections 3, 27, 28 and 29-37, and Order IV of the Judgments (Enforcement) Rules. The Court of Appeal concluded as follows:-

“The sum total of this, therefore, in our view, is that whether the sale is by public auction or by private sale the sheriff has an over-all control and no private individual including a judgment creditor could, without reference to the sheriff, undertake such sale. The law vests the whole process of execution and sale in the sheriff who must sell by public auction except where the law authorises him to sell by private treaty in which case he could either undertake the sale himself or appoint an auctioneer for the purpose.”

The Court of Appeal then dismissed the plaintiff’s appeal.

The plaintiff has now appealed to this Court against the dismissal of his appeal by the Western State Court of Appeal. Two grounds of appeal were filed and argued as follows:-

1. There was no evidence that the provisions of section 27 to 36 of the Sheriffs and Civil Process Law and Order 6, rules lea) and 3 of the Judgment (Enforcement) Rules were not complied with. The Court of Appeal erred by basing its judgment on the assumption that there was non-compliance with the aforesaid Law and Orders.
2. In the absence of:-

(a) a counter-claim from the respondent seeking any relief; and (b) evidence which brought the sale within the provision of section 30 Sheriffs and Civil Process Law, the Court of Appeal erred by confirming the finding of the High Court that the sale of the property was ‘void and of no effect.’ ”

In short, learned counsel for the plaintiff contends that the clear words of the statute and the rules do not import that any such sale must be conducted by the sheriff. On the other hand, learned counsel for the defendant in support of the judgments both of the High Court and the Court of Appeal submitted that any sale in execution of a judgment debt must be conducted by or on the instructions of the sheriff and that the sale herein not having been so conducted, should be held to be invalid.

It was common ground between the parties that on the 7th August, 1967, the High Court, Ibadan, pursuant to an application made in that respect made an order for leave to levy execution against the immovable property of the defendant, that is to say the property herein in dispute. By a motion filed on the 14th September, 1967 in the High Court, Ibadan, by the judgment creditors, an application was made for “an order for the sale by private treaty of the immovable property of the defendant judgment debtor situate at Ogunsina Village.” That motion paper was headed thus:-

“NOTICE OF APPLICATION FOR PRIVATE SALE

(MOTION ON NOTICE)

UNDER ORDER VI RULES 2 AND 3 CAP. 116

OF SHERIFFS AND CIVIL PROCESS LAW”

Pursuant to the motion filed on the 14th September, 1967, the court made an order as prayed on the 18th September, 1967. It was by virtue of this order of the 18th September, 1967 that, according to the evidence of the judgment creditors, they instructed their own solicitor to engage a licenced auctioneer and instruct him to sell the property in dispute. On appeal before us it was contended by learned counsel for the plaintiff, firstly, that it is not enjoined by any law that the sale of the property in execution must be conducted by the sheriff. For this submission reliance was placed by learned counsel on the provisions of the Sheriffs and Civil Process (Amendment) Law, 1964 and learned counsel also referred us to the provisions of Part 1A of that statute and in particular section 2 thereof. We do not think that the argument is well-founded. Section 2A(2)(d) of that Law states that it shall be the duty of the Sheriff-

“to exercise such other powers and perform such other duties as may be conferred or imposed upon him by this Law or any other law.”

If one then looks at the provisions of section 2H of the same legislation, one will see that a sheriff is expressed to have the powers to sell an immovable property seized by attachment.

Then it was argued for the plaintiff that the plain words of the relevant statute do not say that the sale of immovable property must be conducted by the sheriff. In the Sheriffs and Civil Process Law (Cap. 116 Laws of Western Nigeria, 1959) the sections relevant for consideration are 3 and 27-36. Section 3 authorises execution in case of failure to satisfy a judgment debt against immovable property and section 27 prescribes that a judgment creditor “may apply for execution against the immovable property of the judgment debtor.” Section 30 prescribes the time limit within which any sale of immovable property may be challenged and the onus of proof in such proceedings. Section 33 provides for the issue of a certificate of title to a person “who may have been declared the purchaser at such sale” after a sale of immovable property shall have become absolute in manner aforesaid. Sections 34 and 35 deal with the granting of possession to such a purchaser and section 36 makes provisions for sales at which the highest bidder is an alien.

We have referred to section 27 of the Sheriffs and Civil Process Law. That section provides, inter alia, that “the judgment creditors may apply to the court for a writ of execution against the immovable property of the judgment debtor, and execution may issue from the court against the immovable property of the judgment debtor in accordance with the provisions of this Law and any Rules made thereunder …. ” It is pertinent to observe that Rules of Court have been made pursuant to this provision and Orders IV and VI of the Judgments (Enforcement) Rules are relevant. In the present case application for the sale of the defendant’s property was made under the provisions of Order VI, rules 2 and 3. These rules provide as follows:-

“2. Subject to the provisions of any Law or any rule, the sale of any property under writ of execution shall be conducted according to such orders as the court may make on the application of any person

concerned.

3. (1) Before filing any application for leave to effect the sale under a writ of execution of any property otherwise than by public auction, the registrar shall deliver to the applicant on demand a list containing the name and address of every person at whose instance any writ of execution against the debtor had been issued, of which the registrar has notice.

(2) Notice of the application in Form 36 shall be served on every person named on the list and on the sheriff.

(3) On the hearing of the application the applicant shall produce the list to the court.

(4) A copy of any order made on the application shall be sent to the sheriff.”

Rule 2 provides that the sale shall be conducted according to the order of court “on the application of any person concerned” and rule 3 states or describes the conditions precedent to be satisfied before filing an “application for leave to effect the sale of the property.” It was not contended before us that either of those provisions have been breached. In arriving at its decision the Western State Court of Appeal considered as well the provisions of Order VI, rules 6 and 7 of the Judgments (Enforcement) Rules. There was no complaint either before the Court of Appeal or the High Court that any of the provisions of Order VI, rule 6 had been infringed. Order VI, rule 7(1) provides as follows:-

“7. (1) The sale under a writ of execution of any immovable property shall be made by public auction, at which the property shall be knocked down to the highest bidder for ready money, and not by private contract, unless the court otherwise orders.”

Thus, again, unless the court otherwise directs, the sale is to be by public auction. In the case in hand it lies beyond dispute that the court did order a sale by private treaty. The Western State Court of Appeal reviewed extensively the provisions of the Law dealing with modes of attachment, the procedure involved and the steps to be taken by the sheriff in execution proceedings. The Court of Appeal then considered the provisions of Order VI, rule 6 of the Judgments (Enforcement) Rules and concluded as follows:-

“Now to pause for a moment, while rule 6(1) talks of property, paragraph (2) thereof deals with only moveable property. It seems to us therefore that paragraph (1) must refer to both movable and immovable property. The position so far therefore is that after attachment, property remains in the legal possession of the sheriff.”

Order VI, rule 6 of the Judgments (Enforcement) Rules reads as follows:-

“6. (1) No immovable property attached shall be sold for the purpose of satisfying the writ of execution until the expiration of at least fifteen days next following the day on which the property has been attached unless the person whose property has been attached so requests in writing:-

Provided that the sheriff may, if he is unable from want of time to complete the sale, adjourn the same for a period of not more than three days, and so on as often as may be necessary:-

And provided further that the court may, if it thinks fit, direct that the sale shall be postponed for any time not exceeding twenty-eight days after the attachment.

(2) The sale shall be made in the principal court house of the division in which the property is situated, or on the land attached, or at such other place as may be appointed by the sheriff or, in case of dispute, by the judge on the application of any person concerned.

(3) Notice of the day and hour of sale of any immovable property attached shall be published fourteen days at least before the day of such sale by being posted:-

(a) upon the door of the principal court of the division in which the property is situated; and also

(b) in a conspicuous place upon the land attached; and

(c) if the same is to take place elsewhere than at such court house or on the land attached, then at such other place also; and

(d) if the court so directs, in a newspaper published in Nigeria.

(4) Where any immovable property is to be sold under a writ of execution for a sum exceeding twenty pounds, including legal incidental expenses, the sale shall be publicly advertised by the sheriff on, and during three days next preceding, the day of sale.

(5) Every sale shall take place between the hours of seven o’clock in the morning and eight o ‘clock in the evening.”

With respect, we do not see how the consequence inferred by the Court of Appeal follows from the provisions and the clear wording of the statute which the court was construing. In his submissions before us, learned counsel for the plaintiff had submitted that the words of the statute and the rules should be given their clear and unambiguous meaning, that the judgments both of the High Court and the Court of Appeal could only be sustained on the grounds that we are reading into the statutes what they do not expressly contain and that this would be fundamentally wrong. Learned counsel then referred us to the case of Vickers, Sons & Maxim Limited v. Evans [1910] A.C. 444 where at page 446 Lord Loreburn, L.C. stated as follows:-

“The arguments urged seem to me quite insufficient to lead us to read these words into the Act of Parliament. The question is what would the workman probably have been earning. Those are the only provisions in the Act; and I think the conclusion arrived at by the Court of Appeal is perfectly sound.”

On the other hand, learned counsel for the defendant has urged that we should read the statute and the rules together and conclude that the plain intention and tendency of both the statute and the rules are that the sheriff should undertake the sale of all immovable properties seized in execution and that in this present case the whole exercise as performed by the judgment creditors was illegal and void. Learned counsel for the defendant also drew our attention to the case of Grant v. Bagge (1802) 102 E. R. 546 as well as the provisions of the Sheriffs and Civil Process (Amendment) Law, 1964 investing the sheriff with powers to sell immovable property seized in execution.

The argument based on the case of Grant v. Bagge, supra, clearly overlooks the provisions of our own Law which must be interpreted and applied. Learned counsel for the defendant had also drawn our attention to the statement of the law as recorded in Halsbury’s Law of England, Third Edition, Volume 16 at paragraph 23 as to the legal position with respect to immovable properties under attachment. This argument also partakes of the same shortcoming. The statement in Halsbury’s Laws of England was based on English law and/or practice whereas for the case in hand what we have to consider is the express or implied provision of our law. A court of law must refuse to be let into construing a legislation clear in its words and language by reference to extraneous matters of inference or supposed tendencies. See Ex parte Welchman in re Hare (1879) 11 Ch. D. 44 (especially per Brett, L.J. at page 56).

We must and do conclude that the decisions at which both the High Court of the Western State and the Court of Appeal had arrived are not supported by the plain words of the statute and the rules which they were asked to construe and interpret. There was no complaint before us and indeed before them that any of the conditions precedent to obtaining an order for the attachment and sale of the immovable property of the judgment debtor was not complied with and the case must be decided on those premises. Section 30 of the Sheriffs and Civil Process Law provides the remedy by which a sale affected by irregularities may be attacked and, if possible, set aside. This case is not an application under that section and in all the circumstances we cannot see the grounds for reading into the statute and the rules the necessity for the sale to have been conducted by the sheriff.

We now advert to the claims of the plaintiff as set out in his writ of summons. He has asked for a declaration of title to the premises which he had bought pursuant to the order of court. A declaration of title is a remedy which lies in the discretion of the court and clearly the High Court Ibadan has refused to award the plaintiff in this case the declaration of title which he claims especially in the form in which he had so claimed. Section 33 of the Sheriffs and Civil Process Law reads as follows:-

“33. After a sale of immovable property shall have become absolute in manner aforesaid, the court shall grant a certificate to the person who may have been declared the purchaser at such sale, to the effect that he had purchased the right title and interest of the judgment debtor in the property sold, and such certificate shall be taken and deemed to be a valid transfer of such right title and interest.”

It is therefore obvious that after the period prescribed by section 31 shall have elapsed or expired, the sale of immovable property under the Sheriffs and Civil Process Law becomes absolute and “the court shall grant a certificate to the person who may have been declared the purchaser at such sale” and by virtue of the same section “such certificate shall be taken and deemed to be a valid transfer of such right title and interest.” So, what the plaintiff should have claimed is a certificate of title under section 33 and we think that in the circumstances of this case he is entitled to such a certificate. The plaintiff has also asked for possession of the said premises. Section 34 of the Sheriffs and Civil Process Law provides for this and on the application of the purchaser of any immovable property “the court shall … order delivery thereof to be made by putting the party to whom the house, land or other immovable property may have been sold … in possession thereof and if need be by removing any person who may refuse to vacate the same.” Here again the plaintiff is clearly entitled to the relief by way of possession and it is the duty of the court to put him in possession and if need be for the purpose of doing this to eject any other person from the premises. The claims for money had and received and mesne profits are not disputed. The amounts represent rents collected by the defendants whilst he unlawfully remained in possession of the premises. The plaintiff is also entitled to the payment over to him of these amounts and the court should have ordered the payments to the plaintiff of the amounts.

In the event, the appeal succeeds and it is allowed and we make the following orders:-

(i) The judgment of the Western State Court of Appeal in Appeal No. CA W/16/70, including the order for costs, is set aside.

(ii) The judgment of the High Court, Ibadan, in Suit No. I/108/68, including the order for costs, is also set aside.

(iii) Judgment is hereby entered for the plaintiff/appellant in the following terms:-

(a) A declaration that he is entitled to a certificate of title to be issued to him by the High Court, Ibadan, and that such certificate should be issued to him forthwith.

(b) Possession of the premises in question, i.e. situate at Ogunsina Village near Jericho Reservation, Ibadan, and more particularly described on a plan attached to a deed of conveyance dated the 15th January, 1960, registered as No. 58 at page 58 in Volume 353 of the Register of Deeds kept in the Lands Registry Office at Ibadan.

(c) For 370p against the defendant being money had and received by him to the use of the plaintiff in respect of rent on the premises in question for the period 16th October, 1967 to the 30th April,

1968, and

(d) For mesne profits at the rate of 700p per annum payable by the defendant to the plaintiff from the 1st May, 1968, until the date that possession is given.

(iv) The foregoing shall be the judgment of the court.

(v) The plaintiff-appellant is entitled to his costs as follows:(i) In the High Court, Ibadan, fixed at 80 guineas;

(ii) In the Court of Appeal fixed at 50 guineas; and

(iii) In this Court fixed at 60 guineas.

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Other Citation: (1972) LCN/1404(SC)