Appeal Court. 19th May,
1938.
Appeal from judgment of Supreme
Court
Interpleader
Proceedings--Collusive
dispositions of property in
fraud of the grantor's creditors
void under
13
Eliz: Cap.
5,
a Statute of General Application
under section
14 of the Supreme Court
Ordinance.
Held: Appeal allowed and case
remitted to trial Court for
Judge thereof to make findings
of fact on the issue of· fraud.
There is no need to set out the
facts.
E. J. Alex Taylor
(with him
A. Latunde Johnson)
for Appellant.
O. Alakija
for Respondent.
The following joint judgment was
delivered:-
KINGDON, C.J., NIGERIA, PETRIDES,
C.J., GOLD COAST AND GRAHAM
PAUL, J.
The appellant in this matter is
the defendant in Interpleader
proceedings which were converted
into a suit with the claimants
as plaintiffs and the executing
judgment creditor as defendant.
The Court below gave judgment in
favour of the plaintiffs
ordering the release of the
attachment and against that
judgment the defendant has
appealed to this Court.
The grounds of appeal are as
follows:-
"1. The learned trial .T udge
was wrong in ordering the "
release of the property attached
as he appeared to have been
"satisfied that the disposition
of it to the plaintiffs was "
fraudulent.
"2. The evidence does not
support the findings of the "
learned trial Judge."
The judgment of the Court below
is quite short and as its
precise terms are important its
full text is quoted as follows:-
" Notwithstanding the suspicion
with which one must "
necessarily regard family
disposition of property "made or
alleged at or near a time of
financial "embarrassment of the
person disposing of the "
property to the disadvantage of
his creditors, there
"
being in this country no law
invalidating such dispositions, I
feel obliged on the evidence to
order " the release of the
attachment herein, which I hereby
do
"
'That there is no such law is, I
venture to think, a
"hardship to which creditors are
unnecessarily " exposed.
"
'The question of costs, however,
being in my discretion," I allow
the plaintiffs none. Each party
will bear " its own."
It
is clear from the terms of the
judgment of the Court below Paul,
J. that the Court below was under
the impression that the law as to
invalidating dispositions of
property in fraud of the creditors
of the grantor was in Nigeria
different from the law of England,
to the effect' that there was no
law in Nigeria invalidating such
dispositions.
With respect to the learned Judge
in the Court below we consider
that he misdirected himself on
this point. In our opinion the
Statute 13 Elizabeth Cap. 5, which
from its date until it was
repealed in 1925 represented the
law of England on the subject of
collusive dispositions of property
in fraud of the grantor's
creditors, is applicable to
Nigeria under section 14 of the
Supreme Court Ordinance.
The Statute in question is in our
view a Statute of general
application, applying as it does
quite generally to ordinary
affairs and dealings of men
without any qualification or
speciality restricting its
application. The Statute was
simply declaratory of the common
law at the time. And the Statute
was in force in England on 1st
January, 1900. The repeal in 1925
does not affect Nigeria as the
repealing act was subsequent to
1st January, 1900.
The Statute being in force in
Nigeria it is then necessary to
consider in the light of its
provisions the evidence in this
case. In considering whether a
particular case comes within the
Statute the Court must look at the
whole of the circumstances and see
whether the transaction was in
fact carried out with the intent
to defeat creditors
(Re Holland
1902, 2 Ch. 360).
With these observations we think
that the judgment of the Court
below should be set aside and the
suit remitted to the learned Judge
who tried the suit for him to make
findings of fact looking at the
whole circumstances of the case in
the light of the ruling in the
case of
Re Holland (supra)
and to give judgment thereon. The
judgment is set aside and the suit
remitted accordingly.
The appellant has been successful
in the appeal and is entitled to
costs in this Court which we
assess at twenty-eight guineas;
costs in the Court below will
abide the ultimate issue.
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