KINGDON, C.J., NIGERIA. PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C. J., SIERRA LEONE. This is an appeal from a judgment of Ames, Assistant Judge, sitting in the Ibadan Judicial Division of the High Court on appeal from a judgment of the Magistrate of the Ibadan Magisterial Area.
The material part of the judgment of Ames, Assistant Judge, in which all the material facts are set out, is as follows:-
“This is an appeal from a decision given in the Court of the “Magistrate of the Ibadan Area. The suit arose out of a sale of “property under a writ of Fi fa at the instance of John Holt and
“Co. Ltd., the appellants. The judgment debtor was one Lawani. His “family claimed the property to be family property and not his; so “they took an Interpleader action (as it is called) but were too “slow and the sale by the Sheriff had taken place before their action “was ready to be heard. “They then brought this action in the Magistrate’s Court against “the appellants and Alabi, who was the purchaser at the sale, for an “order to set aside the sale. The learned Magistrate found that the “property sold was in fact a family house of the judgment debtor’s “family and he held, from the receipt given by the Bailiff to the
“purchaser, that the purchaser ‘did not under that receipt purchase “the right, title or interest of the debtor Lawani alone in that “family property. He has purchased more than that, He has “purchased the rights and interests of all the remaining members of “the family; for the reason that he has purchased the house owned “by all the children of Odejoke and he made an order setting aside “the sale.
“Against that order, the judgment creditors have made this “appeal, The purchaser did not appeal, “The principal arguments of the parties can be put very briefly, “I think counsel for the appellants argues that all that the purchaser “bought was the unspecified right, title and interest of the judgment “debtor in the property and that whatever may have been stated in “the receipt makes no difference. Counse1 for the respondents argues “that the point is not what it is which ought to have been sold under “the writ of Fi Fa (which he agrees ought to have been only the right “title and interest of the judgment debtor) but what it is which, as it “happened, actually was sold and that in this case what was sold was “more than what ought to have been sold and was in fact the whole “family house, according to the finding of the Magistrate. “With all respect, I do not agree with the latter argument, I agree “with the argument of the appellants. Counsel for the respondents “argues that the Magistrate had to decide upon the evidence before “him, and that the receipt given by the Bailiff and the purchasers “evidence were the only evidence before the Magistrate , and were “to the effect that what was purchased was the house of the family. “But the purchaser did not give evidence. Neither he nor the “appellants called any witneses. What happened appears to have “been that after counsel for the plaintiffs (respondents) and counsel “for the 1st defendants (appellants) had addressed the Court the 2nd “ defendant made a statement that he went to the auction and bought “the actual house and land and was given a receipt which he produced “and which was put in evidence This statement would seem to have “ been by way of address to the Court; it was not on oath, and there “was no opportunity for the 1st defendants to cross-examine him, “The receipt reads:- Received from … ….. fifteen pounds “being amount paid on a House-property bought at a Public “Auction on……..in re (the name of the suit) The Bailiff “was not called as a witness. His receipt is some evidence of what “was purported to have been sold. It ought to be reliable evidence: “but the Bailiff might be an ass or a knave or an ignorant man, “He may not have intended the term House-property to have “any special significance, x x x “I think that the learned Magistrate attached too much “importance to what the Bailiff wrote on the receipt. It seems to “me to be impossib1e that the purchaser could have bought the “rights and interests of all the family or that he could “have bought the house owned by all of the children. ... because “it was impossible for the Bailiff to sell that. All that the Bailiff “could sell was the right, title and interest of the judgment debtor “in the property.
“As a matter of fact, when the case for the plaintiffs closed at “the hearing before the Magistrate, they only seem to have proved “that the house was a family house in which the judgment debtor “had an undivided interest and no more. They do not seem to me “to have shown any cause of action against the defendants (except “perhaps a trespass by the 2nd defendant: but that would have been “a different cause of action).
“So far, there is what appears to be a contract of sale between “the Bailiff, as agent of the Sheriff, and the 2nd defendant. No “certificate of Title has yet been issued. It may be that the contract “was not really a binding one; I mean for example that there may , “have been misrepresentation on the part of the Bailiff. But that is “a matter between the 2nd defendant and the Bailiff; and has nothing “to do with the plaintiffs.
“If the 2nd defendant does not raise any such matter the contract “of sale must be completed. That can only be done by the issue of a “Certificate of Title by the Court. (Without it the 2nd defendant “could not maintain an action for possession of whatever it was he “bought). The only certificate that can be lawfully issued is that he “ bought the right, title and interest of the judgment debtor. There “ could be no cause for the plaintiffs to have that set aside, so I cannot “see how there can be cause for them to set aside the antecedent “contract of sale.
“ With great respect, I think that the learned Magistrate ought to “have non-suited the plaintiffs, and I shall allow this appeal and order “accordingly. x x x “Order of Court: The appeal is allowed and it is ordered that the “judgment of the Magistrate including the order for costs be set aside “and in its place a judgment of non-suit be entered against the plaintiffs “with costs assessed at 8 guineas, and that the appellant be awarded “costs of this appeal assessed at 10 guineas.” Against that judgment the appellants have appellants to this Court upon the following grounds:-
1. The learned judge was wrong in holding that “all that the purchaser bought was the unspecified right, title and interest of the Judgment Debtor in the property and that whatever may have been stated in the receipt makes no difference.”
2. The learned judge having held that the Bailiff’s receipt (Exhibit “B”) is some evidence of what was purported to have been sold and that it ought to be a reliable evidence, was wrong in holding that he (the Bailiff) may not have intended the term “House-Property” to have any special significane and that the learned Magistrate attached too much importance to what the Bailiff wrote on the receipt.
3. The learned judge misdirected himself in holding: - (a) That it was impossible that the purchaser could have bought “the rights and interests of all the ... family” or that he could have bought “the house owned by all of the children” because it was impossible for the Bailiff to sell that.
(b) That when the case for the plaintiffs closed at the hearing before the Magistrate, they only seem to have proved that the house was a family house in which the judgment debtor had, an undivided interest and no more. They do not seem to have shown any cause of action against the defendants.
(c) That the learned Magistrate ought to have non-suited the plaintiffs and that the appeal be allowed.
As to these grounds it is sufficient to say that we entirely concur with the learned Assistant Judge that all that Alabi bought was the right title and interest of the judgment debtor in the property because that was all that, by law, could be sold or bought.
Appellants’ counsel seemed to base his whole argument upon the words in the receipt given by the auctioneer “being amount paid on a house property” and persistently ignored the words “ in re Messrs. John Holt and Co., Ltd. v. (1) Lawani Atoyebi (2) J.O. Aboderin Magistrates Court lbadan “ which also appear in the receipt. The inclusion of these words make it clear that the sale is in pursuance of legal proceedings and reference to the relative rules of Court in Order 45 of the Second Schedule to the Supreme Court Rules, especially rule 34, shows clearly that what was purchased was only the right, title and interest of the judgment debtor in the property sold.
We agree that no cause of action against the defendants was disclosed and considers that the learned Assistant Judge was rig-ht to order a non-suit.
The appeal is dismissed with costs assessed at twenty guineas.