3PLR – ALHAJI MUSTAFA ALLI V. MRS. A.A. ALLEN

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ALHAJI MUSTAFA ALLI

V.

MRS. A.A. ALLEN

SUPREME COURT OF NIGERIA

SC. 414/1964

22ND APRIL, 1966.

CWLR (1966) 3

OTHER CITATIONS

LN-e-LR/1966/27  (SC)

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CHILDREN AND WOMEN LAW: – Women and Justice Administration – Execution of judgment debt by way of court attachment of debtor’s property – Adverse claim by third party – How treated

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BEFORE THEIR LORDSHIPS:    

SIR LIONEL BRETT, J.S.C. (Presided and Read the Judgment of the Court)

MICHAEL OGUEJIOFO AJEGBO, J.S.C.

GEORGE BAPTIST AYODOLA COKER, J.S.C.

REPRESENTATION

A.G.O. AGBAJE – for the Appellant

J.O. AJIBOLA – for the Respondent

PRACTICE AREAS:-

Debtor Creditor Law, Real Estate Law, Women and Children

OTHER ISSUES

REAL ESTATE LAW:- Property under undischarged mortgage – When attached by court towards the satisfaction of a fresh debt to another party – Where prior undischarged mortgage cannot operate to stop execution of court attachment by virtue of limitation laws – Where court rejects plea that property be sold and undischarged mortgage paid in priority to those of the judgment creditor – Nature of legal encumbrances and interests over the property – Implication for buyer of property – Need to take advice

DEBTOR AND CREDITOR LAW: – Sheriff’s Interpleader Summons – Attachment of immovable property of judgment debtor by leave of the High Court towards the full satisfaction of judgment debt – Where execution on property is contested by third part asserting encumbrances by way of mortgages over the property

DEBTOR AND CREDITOR LAW – MONEY LENDER:- Enforcement of security by way of undischarged mortgage for unpaid loan – Time within which to com­mence action – S.30, Money Lenders Act, 1958 – Need to comply with same – Effect of failure thereto

DEBTOR AND CREDITOR LAW: – Judgment Debtor – Existence of multiple creditors – Priority of claims – Relevant considerations – Effect of limitation laws thereof

PRACTICE AND PROCEDURE – LIMITATION OF ACTION – Recovery of debt – Time to bring action – Sec­tion 30, Money Lenders Act, 1958 – Non compliance with – Effect

PRACTICE AND PROCEDURE: – Interpleader Actions – Third party asserting interest over property attached by court for satisfaction of judgment debt – Rules of court made under the Sheriffs and Civil Process Law – Whether contains provision requiring any further pleading by the judgment creditor, or the judgment debtor in such proceedings – Onus on third party claimant to furnish necessary evidence to sustain his claim – Where third party is a money lender – Need to show that his claim is not statute barred

PRACTICE AND PROCEDURE – APPEAL: – Raising fresh point on appeal not canvassed at trial court – Attitude of appellate court thereto

CASES REFERRED TO

Baba-Egbe v. Kasumu (1954) 14 W.A.C.A. 444

MAIN JUDGMENT

BRETT, J.S.C. (Delivering the Judgment of the Court):

The respondent to this appeal, Mrs. A.A. Allen, obtained judgment in the Magistrate’s Court, Ibadan, against one Karimu Alao, and as he could not satisfy the judgment in full she was granted leave by the High Court to attach his immovable property. A piece of land with a house on it at Ori Eru, Idikan, Ibadan, was attached by the Deputy Sheriff and the appellant laid claim to it, where­upon the Deputy Sheriff took out an interpleader summons.

In his statement of interest dated the 26th January, 1962, the appellant alleged that he was a registered moneylender, and that the property had been conveyed to him by two mortgages dated the 21st February, 1956, and the 20th July, 1957 to secure loans of 09) and £200. He concluded by saying that the judgment debtor had paid neither the loans nor the sum of £306-5s interest accrued up to the 31st December. 1961. There is no provision in the rules of court made under the Sheriffs and Civil Process Law for any further pleading by the judgment creditor, or the judgment debtor, and the matter went to trial on the statement of interest lodged by the appellant. The only person to give evidence was the appellant himself, and produced a number of documents including the mortgages. In the High Court the appellant asked that the property should be released from attachment. In this court we were invited to give a direction under Order 5, Rule 14 of the Judgment (En­forcement) Rules, that the property should be sold and that the claims of the appellant should be paid in priority to those of the judgment creditor.

The Judge held that the appellant had failed to prove compliance with sections 12 and 19 of the Money lenders Law, and dismissed the claim on this ground. Mr. A.G.O. Agbaje on behalf of the appellant has pointed out that the attention of the appellant was never drawn to any dispute as to whether these sections had been complied with, and has submitted that the claimant was entitled to rely on the right conferred by the mortgage and that the claim ought not to have been dismissed on a ground which had never been put clearly in issue. We need not enter into a consideration of where the burden of proof as to compliance with these sections of the Moneylenders Law lies on a claim by a mortgagee in interpleader proceedings, since it was put to the appellant in cross-examination that the loan of £300 had been repayable on the 21st February, 1959, and the loan of £2W on the 20th July, 1960, and he agreed. This being so, no proceedings would have lain at his instance in January, 1962. for the recovery of the loan or for the enforcement of the sec­urity, as the time prescribed by section 30 of the Law for bringing such pro­ceedings is one year from the date on which the cause of action accrued, and that time had expired.

Mr. Agbaje submitted that the appellant might have been able to show that the claim was taken out of the provisions of section 30 under one of the provisions to the section, but he had the opportunity of doing so at the trial, where he was represented by Counsel, and it is now too late to try to do so for the purpose of these proceedings.

The appellant cannot be allowed to enforce indirectly a security which he could not enforce directly. The legal title to the property is still vested in the appellant. but what will be sold is the judgment debtor’s right title and in­terest in the property, consisting of the equity of redemption, and the purchaser will no doubt take advice on whether it is open to him to claim such re­lief as was granted in Baba-Egbe v. Kasumu (1954) 14 W.A.C.A. 444. That question does not arise in the present proceedings and we express no opinion about it.

The appeal is dismissed with costs assessed at 27 guineas.

AJEGBO, J.S.C.:

I concur.

COKER, J.S.C.:

I concur.

Appeal dismissed.