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Application to set aside an Order
made ex-parte to draw Money out of
Court. Sale under Fi Fa-Legal
estate together with equity of
redemption sold-irregularity in
notice of sale.
Held: Whole property was intended
to pass and did in fact pass and
at sale was in order.
Appellant appealed against
judgment to West African Court of
Appeal which dismissed appeal.
Appeal dismissed the Court being
unable to set aside the Judge's
order authorising payment.
There is no need to set out the
facts.
Frans Dove
for Appellant.
J.
W.
Mead
for Respondent.
The following joint judgment was
delivered:-
KINGDON, C.J, NIGERIA, PETRIDES,
C.J., GOLD OOAST AND YATES, J.
In previous proceedings between
the same parties before the me
Judge the appellant sought to set
aside the sale of property ken in
execution by the judgment-creditor
on the ground that ere were
irregularities in the conduct of
the sale.
One of the five irregularities
relied on was that the notice of
sale purported to sell the whole
property whereas the judgment.
debtor had only an equity of
redemption the property having
been mortgaged to Mary Joseph by a
legal mortgage.
The point having been put in issue
the Judge decided it. In B
judgment dismissing the
application the Judge held,
inter alia,
at the whole interest in the
property, free of the mortgage,
was tended to be and was in fact
sold.
Appellant appealed against that
judgment. In the fourth his
grounds of appeal it will be seen
that he alleged that the decision
that the sale under the notice of
sale was of the whole interest of
the mortgagee Mary Joseph was
erroneous in law.
This Court
dismissed that appeal on the
ground that it agreed with the
trial Judge that there were no
irregularities in the sale by
which the appellant was
damnified so as to entitle him
to get the sale set aside. The
judgment was silent as to what
estate passed to the purchaser.
It is clear
that the very point which the
appellant wanted the Court below
to decide in his favour in the
proceedings the subject matter
of this appeal, was one of those
raised by his counsel on his
previous application and decided
against him.
In the 2nd
Edition of Everest & Strode on
Estoppel at page 56 it is stated
that" as regard judgments in
personam or inter partes,
" the general rule is, that
an allegation upon record, upon
which " issue has been once
taken and found, is, between the
parties " taking it and their
privies, conclusive according to
the finding " thereof, so as to
estop the parties from again
litigating that fact " once so
tried and found ".
It having been held in the first
proceedings that the whole of
appellant's property did in fact
pass to the purchaser we are of
the opinion that the appellant was
estopped from alleging the
contrary in the Court below
notwithstanding the terms of the
certificate of title of the 29th
December, 1937.
It results from the finding of the
.judge in the Court below that the
legal estate in and equity of
redemption of the property seized
and sold realised £1,420, less
auctioneer's charges £99 7s. 11d.,
i.e., £1,320 12s. 1d.
This sum was paid into Court by
the Deputy Sheriff and out of it
the trial Judge ordered the
payment of £389 7s. 9d. to O. W.
J. Groszmann, the
execution-creditor, in respect of
the judgment debt and costs. We
are not asked to set aside or vary
that order.
Out of the balance of £931 4s. 4d.
remaining the trial Judge
authorised the payment of £825 and
costs amounting to £19 4s. 0d. to
O. W. J. Groszmann on his
solicitor undertaking that these
two sums would be paid to Mrs.
Mary Joseph the mortgagee. It
results from our conclusion that
we are unable to set aside the
Judge's order authorising the
payment of this sum of £844 4s.
0d.
The appeal is dismissed with costs
assessed at £23 19s. 0d.
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