Payment out of Court by Chief
Registrar of moneys realised by
sale of Defendant's realised -Attempt
to ,garnish.
Held: Moneys could not be
garnished.
The facts are sufficiently set
out in the judgments.
A.
L. Johnson for
Plaintiffs-Appellants.
A.
R. IF. Sayle for
Garnishee-Respondent.
'The
following judgments were
delivered :-
AITKEN, J.
According to Mr. A. L. ,Johnson,
who is counsel for the
appellants in each of these
eases, the second of them is
exactly similar to the first. I
think we must assume that Mr.
Johnson's statement in that
respect is quite correct, since
no one has contradicted it or
questioned it in any way before
us. At the same time it appears
to be necessary to mention the
fact that we know next to
nothing about Messrs. Sick &
Co.'s case, and we have to
decide the appeal in that case
on the assumption that it is so
exactly similar to Messrs. E.
Buhler & Co.'s case as learn eel
counsel on both sides have led
us to believe. I shall,
therefore, in this judgment deal
with the facts in Messrs.
Buhler's case only, and it will
be convenient to deal with them
in chronological order.
On the 18th of May, 1932,
Caroline .Johnson mortgaged her
premises known as No. 10
Victoria Street, Lagos to the
Bank of British West Africa,
Limited, apparently to secure
whatever Rum might become due to
them from her ·on her current
account.
On the 9th day of January, 1933,
Messes. BubIer & Co. obtained
judgment against Caroline
Johnson for the Rum of ,£291 5s.
0d. and £12 12s. 0d. costs.
On the 8th of June, 1933,
Caroline Johnson conveyed the
same premises known as No. 10
Victoria Street, Lagos, to
Messrs. Coates
& Co. by way of second mortgage,
apparently to secure whatever
sum might be or become due to
them from her for goods supplied
on credit.
On the 28th of August, 1933, the
Bank obtained judgment against
Caroline Johnson for the sum of
£927 5s. 0d. and £34 13s. 0d.
costs, such judgment debt and
(apparently) costs to bear
interest at the rate of five per
cent per annum until payment.
On the same 28th of August,
1!J33, Messrs. Coates & Co.
obtained judgment against
Caroline Johnson for the sum of
£1,614 8s. Id. due in respect of
goods sold and delivered and
£3!J 18s. 0d. costs. They also
obtained an order for the sale
of Caroline Johnson's premises
known as
No.
10 Victoria Street, Lagos,
although they were not suing in
their capacity of mortgagees
under their second mortgage of
the 8th of June, 1933. A good
deal of criticism has been
directed to that order, and when
one reads the "Writ of Summons
in that case and the record of
the proceedings in Court, it
does seem a little difficult to
understand on what grounds that
order was made. On the other
hand it cannot be denied that
the Court has jurisdiction to
make such an order in a proper
case, and since no appeal was
made against the order in
question, it seems to me that we
must assume that the learned .Judge
considered the circumstances
justified the order and that the
defendant Caroline Johnson
raised no objection thereto. For
these reasons I am clearly of
opinion that that order was not
the nullity Mr .Johnson proclaims
it to have been.
On the 4th of September, 1933,
the Bank sued out a 'Writ of
Fl: Fa
for the purpose of levying their
judgment debt, costs and
interest due thereon from the
movable or immovable property of
their judgment debtor Caroline
Johnson, and under that Writ of
Fi Fa
Caroline Johnson's premises
known as No. 10 Victoria Street,
Lagos, were attached by the
Sheriff.
On the 4th of September, 1933,
it is said that the Bank
obtained an order appointing a
Mr. S. Thomas, licensed
Auctioneer, to sell
No.
10 Victoria Street on behalf of
the Sheriff. The Record of
Appeal contains no copy of any
such order, but as there are
several references to it in the
proceedings before the learned
Chief Justice it
seems only reasonable to
conclude that such an '1rder
must have been made.
On the 14th of September, 1933,
Messrs. Coates & Co. obtained an
order appointing the same Mr. S.
Thomas to sell the same premises
known as
No.
10 Victoria Street by private
treaty or public auction "
subject to a judgment under a
first mortgage of the same
premises obtained by the Bank of
British West Africa." Mr.
Johnson criticised this order at
some length on the ground that
the motion on winch it was made
was unsupported by any
affidavit, but it seems reasonably
clear that there was an
affidavit in support which has
not been included in the reclaim,
and I do not think it necessary
to say anything more on that
point.
On some date or other between
the 14th of September, -1933 and
the 2nd of March, 1934, Mr. S.
Thomas, operating under these
two last mentioned orders of the
4th and 14th of September, 1933,
was successful in selling
No.
10 Victoria Street by private
treaty;
After payment of his commission
and, apparently, certain other
expenses, he handed over the net
proceeds of sale amounting to
£1,342 to the Deputy Sheriff who
paid that sum of money into the
Treasury at Lagos in two
separate amounts viz. :-
£965 " being part payment of net
proceeds of sale in the action
The Bank of British
West Africa v. Caroline J ohn80n,
and
£477 " being balance 'of net
proceeds of sale" in the same
action.
The Treasury receipts for these
amounts are both dated the 2nd
of March, 1934, and on the same
date the Deputy sheriff made
his return under Rule 19 of
Schedule VI to the Supreme Court
Ordinance from which it appears
that
No.
10 Victoria Street, Lagos, had
been sold not only under the
Writ of
Fi Fa
issued on the 4th of September,
1933, in the Bank case, but also
under the Order of Sale made on
the 28th of August, 1933, in
Messrs. Coates' case.
On the same 2nd of March, 1934,
the following note was made by
Mr. ,Justice Butler-Lloyd in the
Court Record Book:-
" Q. B. Coates 'D. C. Johnson
Mr. Oddie on behalf of plaintiff
informs the Court that the
property refered to in the
order of 14 September has been
sold and that he ha'd arranged
with the first mortgagees that
the whole of the proceeds be
handed to them and their receipt
shall be a good discharge for
the purchase money."
(Sgd.)
W. B. Lloyd."
I have set this note out in full
because it has been contended
that it amounts to an order for
payment out, though nothing even
faintly resembling an imperative
can be found anywhere within its
four corners.
The next date of importance is
the 5th of March, 19:34, when
the sum of £9G7 Os. 6d. was paid
out to the Bank in satisfaction
of their judgment of the 28th of
August, 1933, apparently in
pursuance of Rule 20 in the
sixth Schedule to the Supreme
Court Ordinance, and that
payment left the sum of £474
19s. 6d. still in Court.
On the 6th of March, 1935, both
Messrs. Buhler
& Co. and Messrs. Coates &- Co.
applied to the Supreme Court for
a Garnishee Summons to issue in
respect of this sum, Messrs.
Buhler & Co.'s application being
received in the forenoon of that
day and Messrs. Coates & Co.'s
application being received
several hours later.
For some reasons or
other-possibly because this
balance of £474 198. 6d. was
considered to be property
in custodia legis no
summons was issued on either
application, and on the 9th of
March, In33, the Acting Chief
Registrar paid out the whole of
the sum in question to Messrs.
Coates
& Co. As it seems clear from the
record in this appeal that the
Acting Chief Registrar was aware
of Messrs. Buhler and Co. 's
application when he made this
payment, I can only conclude
that he was quite satisfied, in
his own mind, that Messrs.
Coates & Co. were the only
persons entitled to receive the
same. Nevertheless, I think it
would have been wiser for him to
have awaited the result of
Messrs. Buhler & Co.'s
application: it had a curious
history.
On the 13th of March, 1933, a
Garnishee Summons in favour of
Messrs. Buhler & Co. was signed
by Butler-Lloyd, J., but not
issued. Two days later the
learned Judge refused an
application to issue it, and
finally, on the 26th of the
same month, the same learned
Judge made an order for its
issue. Apparently it was then
coh8jdered by everyone concerned
that this sum of £474 19s. 6Q.
was property
in
custodia legis,
and therefore only liable to
attachment by leave of the
Court. On the whole I am content
to accept that position, as it
appears from the evidence given
before the learned Chief Justice
that the Acting Chief Registrar
allocated this sum of £474 19s.
6d. to the credit of ~Messrs.
Coates
& Co.' s action against Caroline
Johnson, and it may therefore be
regardeD as the proceeds of the
order of sale made therein on
the 28th of August, 1933. In the
view that I take of this appeal,
however, it does not matter very
much whether the £474 19s. 6d.
was in
custodia legisor not, so that there is no need
for me to take up further time
in considering the point. Nor is
there any need for me to deal
with the evidence adduced and
arguments offered before the
learned Chief Justice when the
Garnishee Summons granted by
Butler-Lloyd, J. on the 26th of
March, 1934, came before the
Chief Justice on the 20th April,
1934. At the end of that hearing
the learned Chief Justice made
an order that the question of
the liability of the garnishe
was to be determined in the same
manner as in a suit, and the
order went on to provide for
pleadings to be filed and
delivered. Some considerable
delay occurred in filing the
Chief Registrar's defence, and
it was not until the 31st of
October, 1934, that the newly
constituted suit came on for
trial in the absence of Messrs.
Coates & Co., who might well
have been affected by the result
had it been adverse to the
garnishee, that is, the Chief
Registrar. The result, however,
was entirely favourable to the
Chid Registrar, and the groun(1s
on which the learned Chief
,Justice decided that he was not
liable can best be set out in
his own words, which are as
follows:-
" The question I have to decide
is whether that payment out was
proper. I am of opinion that it
was. I consider that the
combined effect of the three
proceedings before Butler-Lloyd,
J., upon which the garnishee
relies and which took place on
28th August, 1933, 14th
September, 1933, and 2nd March,
1934 respectively, amount to
sufficient and proper authority
for the payment out to Q. B.
Coates & 00. of the balance
remaining from the sale of
Caroline Johnson's property
after payment of the amount due
to the first mortgagees. The
plaintiff is therefore not
entitled to the order which he
seeks and I give judgment for
the garnishee with costs
assessed at five guineas".
Now the order of the 28th of
August, 1933, was nothing more
than an order for sale, and the
order of the 14th of September,
1933, was nothing more than an
order appointing a particular Auctioneer
to conduct the sale, and the "
Order" of the 2nd of March,
1934, which I have already
quoted in full, was no order at
all but nothing more than a note
of a statement made to ButlerLloyd, J. in
chambers by
Mr. Oddie and, Moreover, of a
statement which was not carried
out in practice. By what steps
the learned Chief Justice
arrived at that conclusion he
does not say, and with the most
profound respect I find myself
compelled to differ from him as
to the effect of those three "
orders". To my mind there is
nothing in any of them which
even faintly suggests an order
upon the Acting Chief Registrar
to payout and if he required any
authority at all to pay, then
that authority must surely be an
order under Rule 8 of Order 20
in the second Schedule to the
Supreme Court Ordinance. If, on
the other hand, the Acting Chief
Registrar did not require any
authority to payout the £474
19s. 6d. to Messrs. Coates & 00.
then the question of whether or
no he is liable to Messrs.
Buhler
& 00. for making' that payment
cannot depend on the presence or
absence of such al1thority.
But whilst I fine] myself
unhappily at variance with the
learned Chief Justice in regard
to his reasons for refusing to
make any order under the
Garnishee Summons, I have come
to the conclusion that Messrs.
Buhler & 00. were not entitled
to any such order for the simple
reason that there was never
anything due from the Acting
Chief Registrar to Caroline Johnson which could have been
garnisheed by Messrs. Buhler &
Co. or any one else. After
payment out of the £967 Os. 6d.
to the Bank as first mortgagees
a payment to which no exception
has been taken-only £474 19s.
6d. remained to satisfy Messrs.
Coates & Co. as second
mortgagees under a mortgage to
secure no less than £1,614 18s.
1d.
(see
copy Writ of Summons in their
case against Caroline Johnson at
page 87 of the Record of
Appeal). In view of the fact
that Caroline ,Johnson could
have no interest in the proceeds
of sale of No. 10 Victoria
Street, Lagos, until both the
first and second mortgagees had
been paid in full there out, it
seems perfectly clear that there
never was any money in the hands
of the Acting Chief Registrar
on which any Garnishee Order
could operate. If I am right in
this conclusion, then it follows
that the appeal from the
judgment of the learned Chief
Justice refusing Messrs'. Buhler
& Co's application for such an
order must be dismissed. As to
costs, since the appeal has been
dismissed on a point discovered
by the Appeal Court itself, each
side will be left to bear its
own costs of the appeal.
GRAHAM PAUL, J.
The question in this appeal
seems to me to be essentially a
simple one. the learned
President of this Court has in
his judgment recapitulated the
facts, as to which there is no
material dispute, and it is
unnecessary for me to state
these facts again. I shall go
straight to the question of law
..
This is an appeal from a
decision of the Divisional Court
refusing to make absolute the
rule
nisi
obtained by the appellants in
garnishee proceedings against
the Chief Registrar, based on
judgment debts due by one
Caroline Johnson to the
appellants.
The garnishors in order to
obtain such an order had to
satisfy the Court of two
things:-
1.
The existence and amounts of
their judgments against Caroline
Johnson.
2.
The existence at the time of
their order
nisi
of a debt due by the garnishee
to Caroline Johnson.
The garnishee admitted the
first and denied the second.
The
onus
was then upon the garnishors to
prove the existence of a debt
due by the Chief Registrar to
Caroline Johnson.
In my opinion on the pleadings
and evidence before us the
garnishors not only failed to
discharge that
onus
in regard to the money in
question, but positively
established that the money in
question constituted a debt due
by the Chief Registrar to
Messrs. Coates
& Co. and had in fact been
properly paid to them by the
Chief Registrar.
The orders of 28th August and
14th September, 1933, in the
suit by Bauer for Coates
& Co. against Caroline Johnson
effected two things. They
defined the amount' due· under
Coates and Company's mortgage
and they ordered a sale of the
mortgaged property by a named
licensed auctioneer " subject to
a judgment " under a first
mortgage of the same premises
obtained by the " Bank of
British '\Vest Africa on the
same day".
The plain meaning of these
orders is that the auctioneer
was to sell the property and
satisfy the judgment of the Bank
and if any surplus remained then
Coates
& Co. were to get it. If these
two orders and not mean that,
what did. they mean?
So far the position is simple
enough. It was slightly
complicated by the fact that the
Bank had issued a Writ of
Fi Fa
and obtained an order that the
same premises should be sold by
the same auctioneer. It is
possible by Nigerian practice,
differing from English practice
in this respect, to sell under a
Writ of
Pi Pa
the right, title and interest of
a judgment debtor in immovable
property. The auctioneer
apparently sold the premises
under both the order of Court in
Coates and Company's case and
the writ in the Bank's case.
Parenthetically it may be
observed that if the property
had been sold under the Bank's
Writ of
P£ Pa
alone, all that could have been
sold was "the right title
and
interest" of Caroline Johnson in
the property, and at such a sale
the purchaser would have
acquired only the reversionary
interest of Caroline Johnson in
the property subject to the two
mortgages granted by her; for
that and no more was the right
title ant] interest of Caroline
Johnson. If at a sale under the
Writ of
Pi Pa
alone a purchaser paid a price
sufficient to satisfy the first
mortgage he would take the
property subject to the second
mortgage
i.e.
to an encumbrance of over
£1,614-a most unsatisfactory
position. By selling also under
Coates and Company's mortgage
with the authority of the Court
the auctioneer avoided that
unsatisfactory position and the
purchaser obtained a title free
of both mortgages.
Strictly speaking I think the
auctioneer's legal position in
that sale was a two-fold one. He
was agent for the Deputy Sheriff
and also agent for Coates & Co.
It seems to me that on the
conclusion of the sale he would
have been justified in paying
over to the Deputy Sheriff what
was required to satisfy the Writ
of
Pi Pa
and to Coates and Company the
balance. That balance after
satisfaction of the Bank's writ
was in my view clearly due and
payable to Coates and Company.
It was, in ultimate analysis,
the price obtained for their
interest in the property under
their mortgage at a sale under
their mortgage with the
authority of the Court.
In fact, the auctioneer paid the
whole amount to the Deputy
Sheriff who lodged it in the
Treasury in two amounts
withdrawable by the Chief
Registrar. The legal position to
my mind then became that the
Chief Registrar was holding the
sum of £474 19s. 6d. in trust
for Coates and Company from
whose agent the auctioneer he
had received it through the
Deputy Sheriff.
Counsel for the appellants was
at great pains to show that
there was never any express
order for the payment of this
money out of Court, and that the
payment out was therefore in
breach of Schedule II Order 20
Rule 8.
My first comment upon that
contention is that unless the
appellants show that the money
was due to Caroline Johnson at
the date of the order n1:S£
on their garnishee summons
it is no concern of theirs
whether the money was rightly or
wrongly paid out.
Furthermore, Order 20 Rule 8
applies only into Court under an
order of the Court or a Judge.
case is such an order? 1£ the
contention is that
paid in, indirectly or by
implication, " under" the orders
of 28th August and 14th
September, 1933, surely equally
it can be contended that the
money was paid out " in
pursuance of" the plain
implication of these same
orders.
The rule applies only to money
paid in
1mder
an order and provides that such
money can only be paid out in
pursuance
of an
order.
But it is perfectly clear that
at: no time did this sum of £474
19s. 6d. constitute a debt due
to Caroline Johnson. She could
not have claimed it from the
auctioneer; she could not have
claimed it from the Sheriff';
she could not have claimed it
from the Chief Registrar. the
orders of 28th August and 14th
September made in the suits
against her would have been a
complete bar to any such claim
on her part. It is settled law
that garnishors cannot claim in
regard to any money any higher
or other right than their
judgment debtor had. And
therefore it seems to me clear
that the garnishors had no right
whatever to this money. Their
application to have the
garnishee order
nisi
made absolute was therefore
rightly refused and, whatever
view one takes as to the payment
out being regular or irregular
under Order 20 Rule 8 tllis
appeal must be dismissed for the
reasons that the money in
question at no time constituted
a debt due to Caroline Johnson.
I should like to add that I
consider it would have been more
discreet conduct on the part of
the Chief Registrar if on
receipt of the applications for
garnishee summonses he had
maintained the
status qua
by not paying out the money
until the garnishee proceedings
ha(1 been finally disposed of. I
appreciate however that he did
payout believing in good faith
and in my opinion with good
reason that he was paying out in
pursuance of the orders of 28th
August and 14th September, 1933.
I agree that this appeal must be
dismissed.
I concur with the views of the
learned President of this Court
on the question of costs ..
BARTON, J.
I concur.
