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In re: JOEL BAJEPADE RECEIVER/RESPONDENT
Receivership-Order for payment-Default-Contempt-Committal-W;N. Sheriffs and Civil Process Rules, (W.N. Cap. 116), O.VIII r. 13-W.N. Sheriffs and Civil Process Law, (W.N. Cap. 116),
sec. 54-Debtors Act, 1869 (32 and 33 Vict. c. 52).
[Sam Eleanya, Agboola Omolola Oluwafolakemi, Vincent Eleanya Kalu, Eleanya Ugochi Vine]
Omisade for the Defendant/Applicant.
Okunu for the Receiver/Respondent.
This is a motion brought by the defendant asking for an order of Court to commit the Receiver to prison for failure to comply with the order of this Court made on 1st February, 1962. That order is as follows:-
“It is hereby ordered that the sum of £2,154-14s-8d found due from the Receiver be paid to the defendant on or before the 15th February 1962 and failure to pay, the defendant is at liberty to apply to Court for the committal of the Receiver for contempt of Court.”
The background of this case is sufficiently set out in the ruling I gave on 1-2-62; it may be briefly pointed out that on an appeal to the Federal Supreme Court concerning the appointment of the Receiver, the Federal Supreme Court ordered on 21-6-60 that the Receiver Joel Bajepade should continue to act as Receiver under the supervisor of the Senior Registrar of the Western Region High Court and through whom he will pay into Court to the credit of this action, any monies which he receives.
On 8-11-61 this Court ordered that the Receiver, should file a detailed statement of account of what he collected and also his expenses. On 7-12-61 he deposited the sum of£996-15s-4d in court and filed a statement of account showing dates, names of payers and the amounts collected totalling £996-15s-4d. No expenses were claimed. On the 15th January 1962 the defendant filed a motion asking for an order (1) that the Receiver appointed do verify his account by affidavit (2) that leave be given to the defendant to falsify and surcharge the said account. The motion came on for hearing on 26-1-62. The Receiver did not file any other account and leave was granted to the defendant to call tenants as witnesses from whom the Receiver collected moneys and issued receipts. Various receipts were tendered in evidence and the Receiver did not deny issuing them. The amounts shown on the receipts totalled £3,151-0s-0d out of which the Receiver had deposited in court the sum of£996-5s-4d leaving a balance of£2,154-14s-9d. The Receiver gave no explanation as regards the amount of £2, 154-14s-8d outstanding. The order quoted above was therefore made.
I have found the Receiver to be most uncooperative since 8-11-61 and his failure to account for the whole money collected by him cannot pass for innocent mistake: his acts border on criminal breach of trust the receipts tendered in Court were got only through the efforts of the defendant otherwise the amounts discovered might never see the light of the day.
It is noteworthy that the Receiver filed a statement of account on 16-2-62 using the figures got from the receipts tendered in court as the basis of his account and his claims. Why has he failed to do this earlier? He has also claimed a total of £1,747-10s-0d as his expenses which I regard as most unreasonable and fantastic; if he spent so much he must have established a comfortable and luxurious secretariat to issue the 36 odd receipts tendered in evidence.
In support of the motion the learned counsel for the defendant/ applicant has referred to Halsbury’s Laws of England (3rd edition) Volume 32, page 448, dealing with the penalties for default in accounting by a Receiver; part of paragraph 760 referred to reads:
Furthermore a receiver who fails to pay his balances into court after being ordered by the court to do so is liable to committal for contempt as a person acting in a fiduciary capacity within the meaning of the Debtors Act, 1869, to attachment or sequestration and also to pay the costs of any application made to the court for committal, attachment or sequestration. On failure to comply with a summary order, the security may be ordered to be enforced. A receiver who fails to carry out any order for payment to a particular person of a sum of money for costs or otherwise is liable to committal.
The footnote (b) on the same page 448 reads:
Where a receiver had been ordered to pay his balance direct to the persons entitled and had made default in doing so, it was held that a summary order and not a writ of fieri facias was the proper process to compel payment (Whitehead v. Lynes (1864) 34 Beav. 161J.
Reference is also made to the notes on Debtors Act 1869 and definition of ‘Trustee or person acting in a fiduciary capacity’-See Annual Practice 1960 pages 995, 996.
The learned counsel for the Receiver argues that the order of this court made on 1-2-62 was a conditional order and therefore bad in law.
I cannot see what is conditional in the order; the payment of the amount due is not conditional on any event. He also stated that a certain sum of money was paid into court on 25-2-62. That is a sum of £407-4s-8d as shown on the Receiver’s statement of account; the order of the court is that the money should be paid to the defendant.
Learned counsel for the Receiver has also argued that the proper procedure for committal is as laid down in Order 8 rule 13 of the Sheriffs and Civil Process Rules Cap. 116. The rule reads:
(2) If the judgment debtor fails to obey, the Registrar on the application of the judgment creditor shall issue a notice in Form 41 not less than two clear days after service of the endorsed copy of the order and the notice shall be served on the judgment debtor in like manner as a judgment summons.
(3) On the day named in the notice the court, on being satisfied that the judgment debtor has failed to obey and, if the judgment debtor does not appear
(a) that the notice has been served on him, and
(b) if the order was made in his absence, that the endorsed copy thereof has also been served on him may order that he be committed to prison and that warrant of commitment may issue.
Section 54 of Sheriffs and Civil Process Law Cap. 116 reads:
‘If any person refuses or neglects to comply with an order made against him, other than for payment of money, the court, instead of dealing with him as a judgment debtor guilty of the misconduct defined in paragraph (f) of Section 48, may order that he be committed to prison and detailed in custody until he has obeyed the order in all things that are to be immediately performed and given such security as the court thinks fit to obey the other parts of the order, if any, at the future times thereby appointed, or in case of his no longer having the power to obey the order then until he has been imprisoned for such time or until he has paid such fine as the court directs.
It will be seen that the rule and section of the Law quoted are not applicable in this case because the order was made in the presence of the Receiver and concerns payment of money.
The case of Omepena v. Adelaja, 129 N.L.R. 71 also quoted by learned counsel for the Receiver, deals with the grant of an Injunction and therefore has no application to the present case. I have not had the opportunity of reading the other cases referred to as they were not reported or produced by learned counsel. The Receiver in this case was appointed by the court and he is therefore an officer of the court but by his conduct he has woefully failed in the discharge of his duties and has defiantly disobeyed the order of this court made on 1-2-62 without any excuse.
After I had written this ruling I discovered that the Receiver filed an affidavit on 13-3-62 alleging that the plaintiffs joined him in collecting the rents from the farmland in dispute and that the money was deposited in the Barclays Bank Ibadan and that the plaintiffs had failed to make the money available for payment as ordered by the court. This is a rather curious situation and it shows that the Receiver had been acting in collusion with the plaintiffs contrary to his duties as a Receiver; he has himself to blame; in my view this last minute disclosure cannot help him.
In the circumstances, it is hereby ordered that the Receiver, Joel Bajepade be committed to prison until he has complied with the order of this Court.
Mr Omisade asks for 50 guineas costs because the Receiver has unnecessarily delayed the payment of the money.
Mr Okunu pleads on behalf of the Receiver after seeing the affidavit filed by the Receiver. He asks that the Receiver be given time to find the money.
Court: The order of committal is suspended. Receiver to pay the money as ordered on or before 27-3-62. Failure to pay Commitment Warrant to issue. Receiver to produce a surety in the sum of £1,000 before he is released. Cost of £10-10s-0d to the applicant.
Committal Order suspended pending payment of amount surcharged before a date certain: Warrant to issue on failure to pay as ordered.