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SUIT NO. CAW/48/70

3PLR/1970/16 (CA-W)

















CONSTITUTIONAL LAW- Courts —Customary Court-Tribunal Chiefs-Whether execution can be levied against them.

Execution and Attachment-Wrongful execution and irregular issue of writ of attachment distinguished.



Lalude, for the Defendant/Appellant.

Toye Coker, for the Plaintiff/Respondent.



ADEMOLA, J.A.:- On the 19th October, 1970, we allowed this appeal and set aside the judgement of the Abeokuta High Court in its entirety. That court had awarded to the Plaintiff/Respondent the sum of £100 as damages for what it declared to be the “wrongful attachment” of the Plaintiff/Respondent’s car No. WE. 7744 at Ibara, Abeokuta on the 26th November, 1968. The said attachment was also declared “null and void” by the court.


The Plaintiff/Respondent, Oba A. Adeosun Adesina took out a writ of summon against the Defendant/Appellant, K.A. Akinremi and another, in the Abeokuta High Court in which he claimed as follows:


“1.     Declaration that the writ of attachment issued from Ake Grade `A’ Customary Court Abeokuta in Suit No. 9cv/68 and executed on the official car of the Plaintiff No. WE. 7744 at Ibara, Abeokuta on 26/11/68 by the 1st and 2nd defendants is irregular, malicious, not in accordance with the law, null and void.


  1. £250 damages against the 1st and 2nd defendants for the wrongful attachment of the said car property of the Plaintiff at Abeokuta on 26/11/68.


  1. An injunction restraining the 1st and 2nd defendants from selling, using or in any way keeping in their custody vehicle No. WE. 7744 property of the plaintiff.”


Pleadings were ordered and filed and the case came to trial before Adewale Thompson, J, who, on the 26th May, 1969, gave judgement for the Plaintiff/Respondent against the Defendant/Appellant, (the 1 st Defendant in the court below) in the following terms:


“There will, therefore, be declaration in favour of the plaintiff that the writ of attachment issued from the Grade `A’ Customary Court, Abeokuta in Suit No. 9cv/68 and executed on the official car of the plaintiff No. WE 7744 at Ibara, Abeokuta on the 26th day of November, 1968, by the 1 st and 2nd defendants is null and void.”


“Plaintiff testified that the vehicle WE 7744 was at the material time being used for his official and private purposes.


It is actionably wrong for a citizen to interfere with the property of another without legal authority.


Plaintiff is, therefore, entitled to damages.


As against the 1st defendant, I award plaintiff £100 damages.”


“The 1st and 2nd defendants are hereby restrained from selling or keeping the vehicle No. WE 7744 for all purposes connected with the writ of attachment Exhibits `A’ and “Cl”.


The plaintiff in this case is a Natural Ruler in this Judicial Division. I consider it highly impertinent for the 1st defendant to levy execution on his property in a customary court. The Customary Courts are offshoots of the old Native Courts which were designed as recognition of the traditional rights of the people under Native Law and Custom. The Natural Ruler is the symbol of such rights constitutionally revolves. A customary Court in this State, therefore, derives its very existence from the constitutional position of the Natural Rulers and it is expected that it is in the interest of the court itself that a Natural Ruler shall not be brought into public disgrace and ridicule by means of processes issuing out of that Court.


There are many institutions within the State which the law excludes from the rigours of Civil Attachment. Although the rights and duties of Natural Rulers have been modified to meet the needs of a modern Republican Constitution, yet the State has not yet deprived the Natural Ruler of the privileges of Royalty within the limits of our territorial jurisdiction, and one of these privileges should be the inclusion of a Natural Ruler among the list of institutions against which a writ of attachment for whatever nature shall not issue, from a Customary Court.


In exercise of my discretion under Order 35 rule 1 of the High Court Rules, it is hereby ordered that no writ of attachment shall issue from a Customary Court against the person or property of a Natural Ruler within this Judicial Division whether such a property is situate within this Judicial Division or not.”


It was against that judgement and the orders made therein that Mr. Lalude, learned counsel for the Defendant/Appellant filed the following grounds of appeal:


“I.      The learned trial Judge erred in law by holding the writ of attachment empowering the bailiff to levy execution was null and void when the writ was duly signed by the president as required by law.


  1. The learned trial Judge erred, in law by holding that the original of writ of attachment must be pasted on the property levied when the rules and procedure of the Customary Court provides no special procedure.


  1. The learned trial Judge erred in law when he held that an appeal in the Customary Court acts as a stay of execution of the judgement from which an appeal has been lodged.


  1. The learned trial Judge misdirected himself both in law and in fact when he held that no writ of attachment should issue against the property of a Natural Ruler.


  1. The learned trial Judge erred in law by interpreting rule 1 of order 35 of the High Court rules as empowering the Court to hold that no writ of attachment could issue against the person or personal property of the plaintiff as a Natural Ruler.


  1. The learned trial Judge erred in law by holding that Exhibit ‘C’ was an application for a writ of attachment issued on 5/11/68 when no writ of attachment issued on 5/11/68 was before the Court.


  1. The learned trial Judge erred in law by holding that Order 18 rule 5 of the Customary Court Rules makes a president functus officio after an appeal and, therefore, incapable of issuing a writ of attachment.


  1. The whole decision was unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.”


At the hearing of this appeal, Chief Toye Coker, learned counsel for the Plaintiff/Respondent informed us that he agreed with grounds 4 and 5 of the grounds of appeal. Mr. Lalude then proceeded to make what we considered to be, very sound submissions. At the end of the day and after the submissions of learned counsel on both sides had been made it became very clear that the judgement of the Abeokuta High Court could not be allowed to stand. Chief Toye Coker, very eminently fair, it must be said to his credit, intimated us that he found himself unable to support the judgement of the court below and went further to urge it upon us to damnify him personally in the costs of this appeal. We saw no good reason to do this, but we had no doubt whatsoever as to the result of this appeal and we, therefore, allowed the appeal and set aside the judgement of the Abeokuta High Court in the case.


We now proceed to give our reasons for so doing.


There would appear to have been a misconception on the part of the Plaintiff/Respondent as to the true nature of his claims. On all the authorities, and on the facts of this case, we cannot see how the Plaintiff/ Respondent could have sought a Court declaration only that the writ of attachment was “irregular, malicious, not in accordance with the law, null and void.” It seems to us that his proper remedy, if the writ of attachment was irregularly issued was to have asked the court to set it aside, and not merely to have asked the court to declare it irregular. Besides, we fail to see how, on the facts of this case, the Plaintiff/Respondent could have properly claimed that the writ of attachment was irregularly issued and sought a declaration to that effect, and at the same time sought to maintain that the same writ of attachment was wrongfully executed on his property. A wrongful execution is a trespass and generally presumes that the writ was regularly issued but that its execution was neither authorised nor justified by the writ or by the judgement under which it was issued; whereas an irregular issue of a writ of attachment is where the writ ought not to have been issued in the first place because the requirements of the rules of court or of the practice for the time being, have not been complied with and the proceedings will be set aside or amended or otherwise dealt with in such manner and upon such terms as the court shall think fit. And so on the fact of the writ of summons it would seem that claim I (one) contradicted claim 2(two). And more important, claim 3 (three)-the injunction-was a clear misconception-for how could the bailiff have been restrained from performing his duties under the law when the writ of attachment had not been set aside and therefore, still commanded the day.


The complaint of the Plaintiff/Respondent should be carefully noted. He did not complain that the writ of attachment was irregularly executed but that it was wrongfully executed. What he claimed to be irregular was the issue of the writ and it was the execution of this writ said to have been irregularly issued that was also said to have been wrongful. In his final address to the court below, Chief Coker said: “The case for plaintiff is that the writ is irregular …. A writ based on no application is irregular …. No proper writ was executed …… Clearly, therefore, the proper remedy was to have got the writ of attachment set aside by the court. (See vol. 16 Halsbury’s Laws of England, Third Edition paras. 53 …. 56 at pages 36 …. 38).


Again, ‘on the face of the writ of summons, even though the Plaintiff/Respondent, in his personal capacity as such, could not properly bring this sort of action in respect of what was described as his “official car”, the Abeokuta High Court gave a declaration, to use the words of that court, “in favour of the Plaintiff’ that the writ of attachment executed on “the official car of the Plaintiff was null and void. The Plaintiff/Respondent had sought a declaration that the writ of attachment was “irregular, malicious not in accordance with the law, null and void” but the learned Judge had declared the writ of attachment “null and void” ONLY and made no pronouncement as to its being “irregular, malicious and not in accordance with the law.”


Now after a review of the case as a whole, the learned trial Judge held as follows:


(1)     “A bailiff executing a writ of attachment issued from a Customary Court must arm himself with the writ of attachment and that a writ of attachment which is deposited in the file and not produced and exhibited at the site of execution has not been executed.


(2)     “The writ is the authority or power of the bailiff to interfere with the private life or the home of the judgement debtor. He must carry this with him and make it available for the inspection of anybody interested in the affairs of the judgement debtor.”


(3)     “It is my finding that a writ of attachment issued from a customary court and which does not contain the precise time the application was made is null and void.”


It was upon these and other (not relevant) “findings”-to quote the learned trial Judge, that judgement was given against the Defendant/ Appellant.


We think it would be sufficient only to say that upon all the authorities, we find ourselves unable to agree with the legal conclusions reached by the learned trial Judge. We can see nothing in law to justify any of these conclusions.


As to grounds (4) and (5) of the grounds of appeal in particular, we agree with the learned counsel on both sides that the orders made by the learned Judge and his reasons for making them cannot, in any way, be supported on any legal ground.


Finally, we conceive it our duty to stress that it is undesirable to make wild allegations in a Statement of Claim or in an Affidavit. We consider it a very serious thing indeed to charge, in an Affidavit or in a Statement of Claim, an officer of a court with deliberate obstruction of the course of justice, in the performance of his official duties.


We note with distress that in this case, a very serious allegation of this nature was made in the Plaintiff/Respondent’s affidavit of the 27th November, 1968, and in his Statement of Claim dated 3rd December, 1968, against the Registrar of the Customary Court Grade ‘A’, Abeokuta. Apart from this, we see that a letter dated 25th November, 1968, written to the Senior Registrar of the Grade `A’ Customary Court, Abeokuta, by the Solicitors to the Plaintiff/Respondent complained as follows:


“It has come to our notice that you have deliberately delayed the for-warding of the proceedings in the above case to the Court of Appeal in order to enable the judgement creditor to attach the properties of the appellant.”


Now, we note with deep concern that this allegation (as well as others in the Statement of Claim) must have been made without any good cause or justification because there was not even an attempt at introducing any kind of evidence whatsoever throughout the proceedings in the court below, in proof of this serious allegation. We deprecate this method of pleading in the strongest terms and urge upon all concerned always to observe the rules and forms of pleading.


Appeal allowed: Judgement of High Court set aside.



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