COR. KINGDON, PETRIDES AND GRAHAM PAUL, C.JJ.

                                                              AMODU TIJ ANI, CHIEF OLUW                               Plaintiff-Respondent.

                                             v

                                                                                          AND

                                                                  EMANUEL OWOLABI BY HIS ATTORNEY

                                                                                     I . K. DOHERTY                                       Plaintiff-Appellant.

                                                                                                      v.

                                                                                 JOHN O. AGBEYEGBE                                 Defendant.

 

pg 66

Appeal Court, 8th May, 1941 Appeal from Judgment of Supreme Court.

Suit settled-Judgment entered and stay of execution ordered so long as Debtor pays instalments-Debtor defaulted- W Tit of F,i Fa obtained-Property sold-Proceeds paid into Court-­Other Creditors had applied twenty-one days previously for Writ of Fi Fa-Question of priority-Rules of Supreme Court Order 44 Rules 24 and 26-Depends on date of receipt by Court of application for writ-Consent judgment gives no general preference.

Held: Appeal allowed.

There is no need to set out the facts. Case referred to :-

Ajala v. Akinboro, 11 N.L.R. 130.

A. Alakija for Respondent. Ayo Williams for Appellant.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, C.J., SIERRA LEONE.

This is an appeal from the judgment of the Divisional Court (Butler Lloyd J.) on a question of competition between two judgment creditors of J. O. Agbeyegbe each of whom applied for a writ of Fi Fa against the said Agbeyegbe in two respective suits in which they obtained judgment.

The facts are simple and not in dispute, and the~' may be quite shortly stated. pg 67

" This suit is settled on the following terms:-

" Plaintiff to have judgment· for £200 with stay of " execution while the defendant pays monthly "£8 6s 8d commencing on 1st July, 1940. " Defendant agreeing not to sell or charge the " land in question until this judgment debt is "discharged. Judgment accordingly. Costs to " plaintiff assessed at £8 6s. 8d.

" On failure of defendant to pay any instalment the " stay of execution will automatically be raised."

On 3rd September, 1940, the respondent applied for a Writ of Pi Fa under the oonsent judgment of 17th April, 1940, the judgment debtor having made default in the instalments. On 23rd September, 1940, on the application of the respondent an order was made by the Divisional Court appointing an auctioneer to sell the judgment debtor's real property by auction on behalf of the sheriff. The property was sold and the net proceeds of that sale now in Court are the subject of this appeal. 'The respondent claimed in the Court below, and the Court below upheld his claim, that he should have priority over the appellant, also an executing judgment creditor against the same judgment debtor, in regard to the said proceeds of the sale which are insufficient to pay the amounts due to both judgment creditors.

The appellant obtained his judgment against the same judgment debtor in the same Court on 1st October, 1938, and applied for a Writ of Fi Fa attaching the property of the judgment debtor on 13th August, 1940, that is to say twenty-one days before the date of the respondent's application for a Writ of Fi Fa.

Under the Rules of the Supreme Court Order 44 Rules 24 and 26 the priority of competing writs of Fi Fa depends upon the respective times of the receipt by the Court of the applications for the writ. We agree with the decision of Kingdon, C.J. to this effect in the case of Ajala (XI N .L.R. 130), and the applica­tion of the appellant for his Writ of Fi Fa was received before that of the respondent in this case and therefore is entitled to priority.

The only argument submitted by respondent's counsel against this view was that the consent judgment in his case had the effect of giving the respondent preference over all other judgment creditors of the judgment debtor Agbeyegbe. We are unable to accept that argument as it would be obviously absurd to hold that a consent judgment embodying a stay of execution in a suit by A against B could operate as a general stay of execution under  judgments obtained by other creditors in other suits against B. 

In England the position might be dealt with differently because of the Bankruptcy laws there,             but there is no Bankruptcy  law in Nigeria and judgment creditors ,take priority as regards proceeds of execution according to the respective dates and hours of receipt of their applications for Writs of Fi Fa.

For these reasons we think the Court below was wrong in granting the application of the respondent to withdraw, in priority to the appellant the proceeds of sale of the -landed property of the judgment debtor Agbeyegbe. On the contrary we hold 'that the appellant is entitled to priority over the respondent.

The appeal is allowed. The decision of the Court below is Bet aside including the order of costs which if paid must be refunded. The appellant is awarded costs in the Court below assessed at six guineas and costs in this Court assessed at six guineas and cost in this court assessed at thirty five guineas