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30TH JUNE, 1967.

SUIT NO. SC 461/1965.

3PLR/1967/37  (SC)







Chief F.R.A Williams for the appellant.

Defendants absent and unrepresented.


LAND LAW – Mortgages – Mortgagee’s power of sale – whether affected by attachment and sale of mortgagor’s interest

PRACTICE AND PROCEDURE – Civil Action – Execution of judgments – Sale of land under writ of fifa – Purchaser of mortgagor’s interest takes subject to existing encumbrances – Sheriffs and Civil Process Act, s.50.


LEWIS, J.S.C. (Delivering the Judgment of the Court):  The appellant in this appeal was the plaintiff in the High Court of Lagos, when his writ read as follows:-

‘The plaintiff claims against the defendants jointly and severally possession of the premises known as 141 Brickfield Road, Ebute-Metta which the defendants are occupying and of which premises the plaintiff is the fee simple owner.


The defendants have denied and continue to deny the title of the plaintiff. There is no relationship of landlord and tenant between the plaintiff and the defendants.”


Crane Ag. J. on the 3rd of January, 1963, dismissed this claim with 25 guineas costs.


The plaintiff’s case was that the property in dispute vested in one G. O. Laja by a conveyance (exhibit A) on the 3rd of May, 1949 and this was admitted by all 4 defendants, the first, second and third defendants being subsequently tenants of G. O. Laja. On the 7th of April, 1960 G. O. Laja mortgaged the property for £7,500 to his sister-in-law, Maria Ade Peters by a deed (exhibit B) with a proviso for redemption. The fourth defendant alleged that this mortgage was in fraud of the creditors but the learned trial Judge said in regard to it:-

“I should here say, that the allegation of its being a disposition in fraud of creditors is inconclusive, more especially since Okupe became Laja’s judgment/creditor on March 16, 1961 that is to say, after the date of the mortgage to Peters. Before that date however, is must be made clear that Laja was Okupe’s judgment/creditor by virtue of the judgment in the High Court of Lagos, on December 7, 1959, which was reversed by the Federal Supreme Court, on March 16, 1961. Unless of course it could be said that Laja had anticipated the reversal of the judgment of the High Court, it cannot be said in all probability that the mortgage to Peters was in fraud of Okupe.”


In May 1961, as a result of obtaining judgment against G. O. Laja there were proceedings by the judgment/creditor in the High Court of Lagos against G. O. Laja in respect of the property now in dispute and in those proceedings Maria Ade Peters interpleaded, but de Lestang C.J. dismissing the application of Maria Ade Peters said:-

“In my view the applicant has no locus standi in this case. If she has a mort-gage on the property her rights will not be interfered with. As regards the action before the court it is for the plaintiff in that action to take steps to prevent the sale of the property If he so desires.”


As a result on the 26th July, 1961, the property in dispute was sold by order of the court by the Deputy Sheriff to the 4th defendant as the highest bidder. In August 1961, Maria Ade Peters by virtue of her powers as mortgagee advertised the property for sale and on the 5th of October, 1961 the property was sold to the plaintiff/appellant and in December, 1961, conveyed to him. On the 12th March, 1962, the fourth defendant obtained a certificate of title from the court which, apart from the description of the property, reads as follows:-

“I hereby certify that Samuel Adekunle Fisher of 23 Koseh Street, Lagos has been declared the purchaser of the right, title and interest of the above named defendant, G. O. Laja In the land, messuages, and tenements hereinafter mentioned.”


The issue before the learned trial Judge was, therefore, to determine what it was that the fourth defendant obtained when he bought the property by virtue of the order of the court on the 28th July, 1961. Counsel for the fourth defendant argued that the fourth defendant got an absolute interest in the property whilst Chief Williams for the plaintiff submitted that all that the fourth defendant could get, was the right, title and interest of G. O. Laja and that at the time of the sale the property was subject to the mortgage to Maria Ade Peters. The learned trial judge in his judgment said one point that arose was that:-

‘The purported sale between the plaintiff and Maria Peters is collusive and in-valid, and having considered the evidence with due care, I am of the opinion that this plea Is well founded, it being perfectly clear that both Peters and the plaintiff knew that 141 Brickfield Road was sold by order of court to the fourth defendant Fisher.

This fact did not elude Chief Williams who, in justification of the sale, argued that all Fisher could buy at the execution sale was the right, title and interest of Laja which was at the time of the judicial sale the equity of redemption in the property, the legal fee simple being resident at the time In Maria Peters which she was free to dispose of as she pleased.

But I am afraid that highly attractive as this argument sounds, it cannot altogether bear the light of examination; for whilst it is unimpeachable with regard to the interest which Fisher purchased, it is undefensible with regard to the alleged freedom of Peters to dispose of property under attachment by court order, the legal effect of attachment being to bind the property in the hands of whomsoever shall happen to be in possession of it, so that he is not free to deal with it.”


The learned trial Judge went on to refer to Order 5, Rule 7 of the Judgments (Enforcement) Rules, which in our view does not assist, and to the warning given at the sale to the plaintiff that the property had already been sold by order of the court and found that the “purported sale from Peters to Fisher being by law null and void concludes the matter.” Chief Williams has submitted before us the same arguments which he submitted to the learned trial judge, but which he rejected, that all that the fourth defendant got by virtue of the sale by order of the court was, as section 50 of the Sheriffs and Civil Process Act stated ‘the right, title and Interest of the judgment debtor’ and this was what was stated in the certificate of purchase from the court (exhibit G), to which we have already referred. He further submitted that this was supported by the judgment of de Lestang, C.J. in the inter-pleader summons which we have quoted earlier in this judgment. He submitted that it was clear from Ghana Commercial Bank v. Chandiram [1960] A. C. 732 that the purchaser of the right, title and Interest took subject to any existing en-cumbrance of the property as was shown by the judgment of the Privy Council delivered by Lord Jenkins when he said at page 743:-

“In the Ghana Court of Appeal Van Lare J. A. delivered a judgment with which the other two members of the court agreed. That judgment contains the following statement of the law relating to the position of a purchaser under the execution of a fifa, which appears to their Lordships to be wholly correct:

‘The law Is dear that a purchaser of a property under the execution of a fifa steps Into the shoes of the judgment debtor by purchasing no more than the ‘estate’ of the judgment debtor therein. In other words what is sold and what is bought at a sale in execution is the right, title and interest of the judgment debtor – Dadzie v. Kojo (1940) 6 W.A.C.A. 139. It follows therefore that If a certain property which is attached under execution by way of fifa turns out to be in any way encumbered the purchaser buys subject to that charge or encumbrance.’

The learned J. A. went on to say that the case would have taken a different turn had Barclays still remained at the date of the sale the party interested In the encumbrance, thereby, as it seems to their Lordships, indicating the view that, in accordance with his statement of the law as quoted above, Barclays, had they retained the equitable mortgage, could have enforced it against the property in the hands of the purchaser.”

and went on to say at page 744:

“In their Lordship’s opinion, it follows from their acceptance of Van Lare J. A.’s statement of the law as quoted above (to which may be added a reference to the observations of Lord Chelmsford 1n Wickham v. New Brunswick and Canada Railway Co. (1865) L. R. 1 P.C. 64, 75, 76 that the attachment of September 25th 1954, took effect subject to Barclays’ interest as equitable mortgagees……………..

It furthermore appears to their Lordships that, being outside the ambit of the attachment, the benefit of Barclays’ equitable mortgage continued after 25th September, 1954, to be capable of assignment or devolution, whether by express disposition or by operation of law or by the application of equitable principles, just as it would have been if the attachment had never taken place.”

and at page 745:-

‘Their Lordships accordingly hold that by paying the amount due to Barclays the Ghana Bank became entitled to the benefit of the equitable charge with the same priority for the amount thereby secured ’as had theretofore been enjoyed by Barclays.”


The West African Court of Appeal had earlier adopted the same approach in Dadzie v. Kojo 6 W.A.C.A. 139 when that court said:-

‘The main ground for his decision was that the first defendant bought the land under a sale and got a Certificate of Purchase. But actually all that the first defendant bought was Kweku Mensah’s right, title and interest in the land. What Kweku Mensah’s right, title and interest was is a question of fact and the Native Tribunal found as a fact that his right, title and interest were that of a tenant only.”

In our judgment, therefore, the submission of Chief Williams is correct and all that the fourth defendant took was the property subject to the mortgage, so that the power of sale under that mortgage having been effectively exercised the fourth defendant took subject to the tide of the plaintiff.


The limed trial Judge did also deal with a point raised under the Distress for Rent Act, 1737 and, though we find that he was in error in so doing, we do not consider it necessary to deal with it as In our view the matter is disposed of for the reasons we have given.


The appeal is accordingly allowed, the decision and order of the High Court is set aside and judgment is entered for the plaintiff in terms of his writ. The plain-tiff is entitled to his costs in this appeal which we assess at 50 guineas and to his costs in the High Court which we assess at 60 guineas.


Appeal allowed.


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