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SC.22/1964; NO.I/188/62

3PLR/1965/45  (SC)








Chief F. R. A. Williams for the appellant.

  1. O. Onalaja for the respondent.


CONSTITUTIONAL LAW – Legislation-Western Nigeria: Sheriffs and Civil Process Law (cap. 116) s.15 Judgments (Enforcement) Rules, 0.4, r7, (printed following cap. 116).

REAL ESTATE – Execution-Land sold twice under orders of two courts.

WORDS AND PHRASES -’court’ (?) in s.15 of the Sheriffs etc. Law.


BRETT, J.S.C. (delivering the judgment of the Court): This appeal raises the question of the title to certain immovable property which has ostensibly been sold to the appellant under an order of the Customary Court of Ibadan No. 1 and to the respondent under an order of the High Court of Western Nigeria. The case was argued and determined in the court below entirely on the basis of English decisions but we agree with Chief Williams, who appeared for the appellant, that the proper law to be applied is to be found in the Sheriffs and Civil Process Law (Cap. 116, Laws of Western Nigeria), the Customary Courts Law (Cap. 31) and the subsidiary legislation made under those Laws.


The sequence of events was as follows-


1960  26 September        High Court ordered attachment.

24 October  Sale advertised (later postponed when interpleader         proceedings brought).

1961  13 February Customary Court ordered sale.

18 May                  Sale advertised under Customary Court order.

31 May                  Sold under Customary Court order.

3 July          Customary Court issued certificate of purchase.

25 November         Sold under High Court order.

1962  30 April        High   Court issued certificate of title.


For the purpose of the argument in the High Court the facts stated in the pleadings were taken as admitted and since the plaintiff pleaded in paragraph 4 of the Statement of Claim that the property was attached by the Deputy Sheriff in accordance with the order of the High Court we are of the view that all formalities required for a valid attachment must be taken to have been carried out. It must equally be taken as admitted that all necessary formalities for a valid sale under the Customary Courts Law were carried out, and the question we have to determine is what effect 0.4 rule 7 of the Judgments (Enforcement) Rules, made under the Sheriffs and Civil Process Law, had on the powers of the Customary Court after the property had been attached by order of the High Court. The rule reads as follows-


“After an attachment shall have been made by actual seizure, or by order or notice as aforesaid, and, in case of an attachment by order or notice, after it shall have been duly intimated and made known in manner aforesaid, any alienation without leave of the court of the property attached, whether by sale, gift or otherwise, and any payment of the dividends or shares to the judgment debtor during the continuance of the attachment, shall be null and void, and the person making such alienation or payment shall be deemed to have committed a contempt of court.”


There is nothing to cut down the generality of the wording of this rule, and in our view it preserves the priority of the attachment by order of the High Court and renders the sale by order of the Customary Court null and void. Chief Williams has pointed to the reference to contempt of court and submitted that it cannot have been intended that compliance with an order of the Customary Court should be punishable as a contempt, but we are satisfied that the Customary Court and its officers would have a defence if they acted in good faith and we do not accept the argument that this provision indicates that the rule does not apply in the present circum-stances.


We regard this rule as sufficient to enable us to determine the appeal. We observe that section 15 of the Sheriffs and Civil Process Law provides as follows-


“When writs against the property of any person have been issued from more than one court, the right to the property attached shall be determined according to the order of priority of the respective times of application to the registrars for the issue of the writs.”


But the facts admitted in this case do not show the respective times of application to the registrars for the issue of the writs and counsel have not addressed us on whether in this section of the Law the word “court” includes a Customary Court. For these reasons we do not base our decision on this section, but if a similar dispute arises in future counsel may like to consider whether it can usefully be invoked.


In the result we uphold the decision of the court below, though on different grounds from those relied on by that court. The appeal is dismissed, with costs assessed at 27 guineas


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