In The Supreme Court of Nigeria
On Friday, the 17th day of June 1977
Alhaji Labaran Nakyauta ....... Appellant
Alhaji Ibrahim Maikima and Anor ....... Respondent
Judgement of the Court
Sir Udo Udoma, J.S.C.
The appellant as plaintiff in suit No. K/66/72 in the High Court of Kano State, claimed against the respondents as defendants therein, the following:
"(a) a declaration that the purported sale of the plaintiffs landed property at No. 30A Airport Road, Kano, by the first defendant to the second defendant is irregular, improper, invalid, null and void and of no effect.
(b) £136,713 special and general damages for unlawful execution on the said plaintiffs property.
(c) an order that the Register at the Lands Registry Kano be rectified by the deletion of the registration of the 2nd defendant as the owner of the said Palintiffs landed property."
In terms of the pleadings filed and delivered and the evidence in support thereof, the case of the plaintiff was that, as a transporter and general contractor, he was the owner/occupier in possession of the landed property known as No. 30A Airport Road, Kano, by virtue of a Certificate of Occupancy No. 10466 dated 12th October, 1961, Exhibit 7, whereby the property was granted to him, which Certificate of Occupancy was duly registered on 17th February, 1972 as No. 31 at page 31 in Vol 66 in the Registry of Lands at Kaduna; that he was at all times material in possession of the said landed property, exercising thereon maximum acts of ownership and possession within the limits prescribed in the certificate aforesaid to the knowledge of the defendants; that in 1969, he collected a lot of building materials and stacked them together on the land aforesaid preparatory to erecting thereon a hotel, that being the only purpose for which the land was originally granted to him, which purpose was stated as a convenant in the Certificate of Occupancy.
It was the case of the plaintiff that during his absence in Benin in Bendel State, the first defendant, as a licensed auctioneer, purported to sell and deliver possession of the property aforesaid to the second defendant, a trader, by public auction, in purported satisfaction of a judgment/debt in suit No. K/38/64, of which the Northern Buying and Shipping Association Limited, a limited liability company, was the judgment/debtor; that he the plaintiff was not a party to the said suit and judgment; and that the first defendant sold the landed property aforesaid to the second defendant, and the second defendant bought the same well knowing that the property did not belong to the judgement/debtor, or recklessly without caring to know to whom the property belonged in that no proper enquiries or investigations were carried out as to the occupancy, ownership and title of the property aforesaid; and that consequently, the sale was irregular, improper, invalid and of no effect, in that the landed property sold to, and which the second defendant bought, was not the property of the judgement/debtor.
The plaintiff thereupon complained that he has been wrongfully deprived of his landed property and made to suffer loss and damage; and that the second defendant to whom a certificate of purchase was wrongfully issued has caused the same to be wrongfully registered in the Lands Registry at Kaduna to his loss and detriment.
In their defence in terms of their pleadings and evidence, the defendants admitted that the property aforesaid was sold by public auction on the instructions of the High Court, Kano, pursuant to a writ of attachment issued from the said court in satisfaction of the judgement/debtor in suit No. K/38/64 Martin Gutman vs. Northern Buying and Shipping Association Limited wherein judgement was obtained against the Northern Buying and Shipping Association Limited; that as a result of the said sale, the second defendant as the highest bidder, was issued with a Certificate of Purchase by the High Court; and that by reason of the said certificate of purchase, the name of the second defendant was, with the approval of the Permanent Secretary, Ministry of Lands and Survey, duly registered in the Register at the Lands Office, Kaduna, as the owner of the property, the subject matter of the sale.
It was the case of the defendants that before the public auction, the proposed sale was widely advertised and statutory public notices also duly published with the result that a large number of members of the public was attracted to and attended the said auction sale; and that since, the conclusion of the sale, on 4th October, 1969, the plaintiff had never filed an interpleader summons in court as a means of vindicating and protecting his right.
After having given consideration to the evidence and the submission addressed to him by counsel, the learned trial judge dismissed the plaintiffs claim on the ground that it was misconceived. Hence, this appeal to this court by the plaintiff.
In arguing the appeal for the plaintiff Mr Kehinde Sofola submitted that the learned trial judge erred in law in holding that the averment in the statement of claim contained to the effect that the plaintiff was the owner and occupier of the land in dispute, the subject matter of the purported auction sale, was irrelevant to the action. He contended that on the facts established by the evidence before the High Court, the learned trial judge ought to have held that the so-called sale was irregular, improper, invalid and void, and of no effect in that the property actually sold was not the property of the judgment/debtor.
Learned counsel then pointed out that on the evidence, the property taken in execution of the judgement/debt was not the property towards which the writ of attachment had been directed or had aimed. The sale was of the property of the plaintiff, who was neither a party to the suit nor a judgement/debtor as a result thereof, and for the satisfaction of which execution was ordered to be levied. It was the contention of learned counsel that the sale by the auctioneer, the first defendant, that is, had missed its proper target. The auctioneer had sold the wrong property.
It was the submission of learned counsel that in those circumstances, the first defendant was a trespasser and clearly liable in trespass in that he purported to pass legal title to a purchaser of property he had no right to sell; that the second defendant had bought nothing since the property sold to him was not that of the judgement/debtor, and therefore, neither legal title nor interest in the property had been passed to him by the sale. The whole transaction, submitted learned counsel, was mischievous and malicious because, according to the plaintiff, the defendants knew that the property did not belong to the judgement/debtor.
It was also the contention of learned counsel that the complaint of the plaintiff in the High Court was not directed to the actual conduct of the auction sale as such, although that submission needed qualification because there was some evidence that the first defendant knew at the material time, that the property he was selling was not the property of the judgement/ debtor, but that of the plaintiff, a person not a party to the suit and resultant judgement/debtor.
Learned counsel then submitted that the first item of the claim of the plaintiff was not to set aside the sale on the ground of ordinary irregularity in the conduct of the sale which would fall within Section 47 of the Sheriffs and Civil Process Law. The claim was, and is based on the premises that the sale such as it was, was so highly improper and fundamentally irregular as to amount to an illegality. The impropriety and the irregularity were such as to go to the very root of the whole transaction and to render it null and void and completely invalid in law; and that the transaction being so palpably bad in law was incapable of being supported by any reasonable court of law or of being justified on any legal ground whatsoever.
In support of these submissions on this aspect of the case, learned counsel cited and relied on Abiodun, Bailiff and Others vs. Chief Kogun Ogunyemi (1962) 1 All N.L.R. (Part IV) 550; and Baker vs. Furlong (1891) 2 Ch.D.172.
On the second and third items of the claim by the plaintiff, learned counsel submitted that the plaintiff was entitled to damages for an unlawful execution carried out by the first defendant in the same way as a trespasser would be guilty for breaking and entering into the land of the plaintiff; and that since the second defendant had pleaded and had sought to rely on his having been registered as owner/occupier of the land purportedly sold to him and for which he was issued with a certificate of purchase, then the register ought to be rectified to reflect the true position as regards ownership.
We now proceed to deal with those submissions.
There is no doubt on the evidence, that the plaintiff was not a party to suit No. K/38/64 Martin Gutman vs. The Northern Buying and Shipping Association Limited judgement wherein was entered against the Northern Buying and Shipping Association Limited. In order to satisfy that judgement, by an order of court the property of the judgement/debtor was directed to be attached. Notice of Attachment Judgement Form 41 Exhibit 6A, was issued on 22nd August, 1969, addressed to the Judgement/ Debtor Northern Buying and Shipping Association Limited, No. 8, Katsina Road, Kano.
The Notice reads in part as follows:
"TAKE NOTICE that a Writ has been issued for the attachment and sale of your Immovable Property in Execution of the Judgement/Order obtained against you in this Action/Matter and the amount for which it has been issued is stated below.
AND TAKE NOTICE that your Immovable Property is hereby attached and you are prohibited from selling the same or any right or interest therein."
It is significant to note that the Notice of Attachment, Exhibit 6A, does not contain the particulars or description of the immovable property to be taken in execution or the location or the address of the said immovable property. The position is the same as regards the Writ of Attachment and Sale Against land dated 19th August, 1969, Judgement Form 38, Exhibit 6E, in which are to be found the following words:-
"These are therefore to require you forthwith to make and levy the said sum of £13,222.10s together with the cost of executing the summons, by entering upon and attaching the immovable property of the debtor wheresoever it may be found within the Kano Judicial Division and by selling the same etc. etc .............................................................."
It is quite plain from the writ of attachment, Exhibit 6E, and the notice thereof, Exhibit 6A, that the attachment was not directed to No. 30A Airport Road, Kano at all which, on the evidence, in any case, was not the property of the judgement/debtor.
In order, therefore, to ascertain how it came about that No. 30A Airport Road, Kano, was attached, it is necessary to go to the evidence on record; and we start with the testimony of the first defendant, Alhaji Ibrahim Maikima who said in part as follows:
"I am auctioneer for 38 years. A policeman invited me to Mr Ayo. I went and some police officers came out of Mrs Ayo's office, and told me to auction a plot. I did not know the plot before this. I printed posters and pasted on High Court Building. I took them to Mr Ayo who asked me to paste them on the house to be sold, but I told him I did not know the house. He sent Ibrahim Mahmoud, Assistant Superintendent of Police, Sgt. Bakar Kuruminbi, Uba Obande, Police constable and another police constable with him to show me the plot. They took me to a plot along Airport Road. I did not know the owner etc. etc.................................. "
Under cross-examination, this was what he said:
"I did not receive any order of the court to act as licensed auctioneer in that sale. I did not know Alhaji Isa Abdullahi personally, before the sale, but I know of his Company. I did not bargain to sell to him. / did not know No. 30A Airport Road was not the property of the Northern Buying and Shipping Association Limited and was property of Alhaji Nakyauta. I did not advertise it as Nakyauta's property.............................................I sold on court's order, as I was directed by Deputy Sheriff."
Then we must turn to the evidence of Abdukadiri Danjiyaji, (PW.5) who in addition said:-
"I know first defendant. I attended an auction sale in 1969. First defendant was advertising auction of plot and materials. He told me the properties belonged to Alhaji Labaran Nakyauta. I attended the auction. I was surprised that such an auction should take place because I knew he was a rich man..............................................................................."
Under cross-examination, he said:
"1st defendant did tell me the property was Alhaji Nakyauta. I asked him personally. He did not say it was Alhaji's Company's property."
Now, the vital issue for determination by this court is as to whether or not on such evidence, considered along with the evidence of Ibrahim Mahmoud (PW.l), A.S.P., who testified that he was attached to the Bailiffs Section of the Police Force in 1969, and worked under Mr Ayo, A.S.P. who served then as the Deputy Sheriff and that No. 30A Airport Road, Kano, which he could then not locate was pointed to him by one Mr Lewis Thomas (who, incidentally, did not testify before the Court) that the auction sale as a result of which the plaintiff was said to have been deprived of his landed property was such that this court could declare to be regular, proper and valid; and that particularly, as the property purportedly sold was the property of a third party who had nothing, on the evidence, to do with the judgement/debt nor chargeable with the judgement/debt in any way.
It seems clear that the first defendant as an auctioneer in selling the property in question was not in fact and in law executing the writ of attachment issued to him by the Court for three reasons. Firstly because the Writ of Attachment was destined to a specific property, that is, the immovable property of the judgement/debtor, whereas the property taken in execution was not such property. Secondly, because, on the evidence, the auctioneer knew that the property purportedly sold did not belong to the judgement/debtor. Thirdly, because as sworn to by the auctioneer, he did not himself trouble to inquire or investigate into the title and ownership of the property, even though the said property was regularly and duly registered in the Lands Registry at Kaduna.
On those grounds, there could be no doubt whatsoever, that the first defendant was a trespasser. He was reckless in carrying out his assignment; and by selling No. 30A Airport Road, Kano, as well as the goods in the form of building materials packed together on the said land in the manner in which he did, he would without doubt, have been liable in damages in trespass in a properly constituted action.
In Baker vs. Furlong cited to us by learned counsel, it was held that where an auctioneer receives goods into his custody and on selling them, hands them over to the purchaser with a view to passing the property in them, he is to be treated as having converted the goods, and he is liable to an action accordingly; his case differing from that of packing agents or carriers in that the latter merely purport to change the position of the goods and not to transfer the property in them.
In dealing with this issue in the above cited case, Romer J. said at pages 181-182:
"Now, I agree that if an auctioneer or broker does anything more than settle the price as between a vendor and a purchaser of goods and takes his commission, he is not liable as for a conversion should it turn out that the vendor was not entitled to sell. That is the case put by Lord Bramwell in Cochrane vs. Rymill 27 W.R.777, as one where the auctioneer would act merely as a conduit pipe, and here, the auctioneer receives them, hands over the goods to the purchaser with a view to passing the property in them, then I think the auctioneer has converted the goods, and is liable accordingly, and for this, the case of Cochrane vs. Rymill is an authority, and I may also refer to Featherstonhaugh vs. Johnston 3 Taunt 237, and Anderson vs. Jarvis 4 Bing 66. The general rule is that where an agent takes part in transferring the property in a chattel and it turns out that his principal has no title, his ignorance of this fact affords him no protection."
In Lovick vs. Crowder (1828) B and C 132 (108 E.R. 992) mentioned in English and Empire Digest, A in March fraudulently and for the mere purpose of protecting the goods sued out a fifa against B under which C, the then Sheriff seized. In September, D, a new Sheriff came into office to whom a fifa sued out by E against B was delivered. D did not seize, but offered to sell under the first fifa and returned nulla bona to the second. It was held:
(1) that D was liable to E for false return;
(2) that the sheriff must see, at his own peril, that the party who sets him in motion is acting bona fide. He is entitled to apply to the court for an idemnity from one of two conflicting claimants. Generally speaking, the sheriff is liable; and it is highly just and proper that he should be so liable. If it were otherwise, a wide door would be opened for fraud and the officers of the sheriff, and the debtors against whose goods process issued would be colluding together for the purpose of making one process the means of defeating another; and
(3) that a creditor who sues out execution against the goods of his debtor must be both prompt and honest in the steps he takes to enforce it.
Saunderson vs. Baker Martin Sheriffs of London and Middlesex (1772) 3 Wils K.B. 309 (95 E.R. 1072) was an action of trespass for breaking and entering the plaintiff's warehouse in Eagle Street, keeping possession thereof and taking his goods. It was tried before Lord Chief Justice de Grey. Verdict was entered for the plaintiff. Damages were assessed at £250. It was held that trespass vi et armis would like against the sheriffs for taking the goods of A instead of the goods of B by his bailiff upon the sheriffs warrant on fieri facias.
The case on the fact at the trial was that the plaintiff, Saunderson was an auctioneer and had goods in his warehouse to be sold by auction. He published a catalogue thereof for the sale in May 1771. Then one Bolland as a Sheriff officer had a warrant from the Sheriff for an execution fieri facias against one Beavor at the suit of one Price. He seized the goods of the plaintiff, Saunderson, supposing the same to be Beavor's goods, which they were not, as was proved at the trial. On 31st May, Bolland took away the goods valued at £300, locked the door of the warehouse and took away the key thereof.
On 1st June, the plaintiff went to the sheriffs office where he found one Mr Frith, clerk to the under-sheriff and then and there in writing, demanded all the goods so wrongfully seized by Bolland, the officer to be returned, that if they were not returned he, the plaintiff, Saunderson, would sue sheriffs, whereupon Mr Frith then told him that the sheriffs had sufficient security from Bolland and that he, Frith, did not care. Frith also said:
"This fellow, Bolland, has been often guilty, I am glad he is caught, but we have security."
The defendant gave no evidence at the trial. In his summing up of the plaintiffs evidence to the jury, the Lord Chief Justice told them that if they were of the opinion that the sheriffs had recognised the act of Bolland, they ought to give their verdict for the plaintiff. The jury did accordingly.
Subsequently, in an application for a new trial, it was moved that verdict was not supported by the evidence and that the sheriff was answerable in an action of trespass vi et armis, for acts done by his officers or bond Bailiffs. It was argued further that trespass vi et armis in that would not lie against the under-sheriff because the judgement in the case was quod capiatur. On a rule to show cause the order to show cause was discharged.
In his judgement with which the rest of the court concurred, Gould J.said at page 1075:
I am of opinion that the Lord Chief Justice did very right in leaving it to the jury with the question vis: whether they were of opinion that sheriff had recognised the act of Bolland. The sheriff (or the under sheriff which is the same in this case) makes a warrant to the officers to take goods of A in execution and he seizes the goods of plaintiff. Frith the under-sheriff clerk has notice hereof given to him by the plaintiff in writing, who also at the same time demanded the goods to be restored to him, but instead of that to be done, Frith as it seems to me, makes a joke of the business. I consider Frith as standing in the place of Baker and Martin the sheriffs themselves and Frith not ordering the goods so wrongfully taken to be restored immediately to the plaintiff, the sheriffs from time became principals in the trespass by recognising the act of Bolland.
In Woodgate vs. Knatchbull (1787) 2 T.R. 148, the decision in Saunderson vs. Baker and Martin was cited with approval and followed. In his judgement, Grose J. said at page 159:-
"The law on this subject is very well laid down in Latch, and in Saunderson vs. Baker and Martin. In the latter case, an action was brought against the sheriff for a tort committed by the officer against his warrant. There the officer did not do what he was ordered to do by the sheriff, for he took the goods of A instead of B and even there the sheriff was also held liable for the act of the officer, though against the tenor of the writ, and without his authority or knowledge. A new trial was refused."
The principles established by these cases put briefly: is that an auctioneer as well as even the sheriff must act with care and prudence. For, if either of them should levy execution on wrong goods i.e. goods not within the contemplation of the writ of attachment with which i.e. is armed, then he is a trespasser in relation to such goods and will be liable in damages for trespass or in conversion. It seems therefore reasonable to infer from the evidence in the case on appeal that the first defendant was certainly a trespasser on No. 30A Airport Road, Kano, and could not therefore pass an indefeasible title in the property to the second defendant.
As was pointed out by Chief Rotimi Williams, learned counsel for the second defendant, under Sections 45 and 46 of the Sheriffs and Civil Process Law, Cap. 123, whenever any property is attached and sold, and the purchaser, as in the case in hand, is issued with a certificate of purchase, all that he gets is what is usually declared in the certificate of purchase as "the right, title and interest of the judgement/debtor in the property sold."
The question is:
"What then did the second defendant buy, bearing in mind that the property purportedly sold was not the property of the judgement/debtor, that is to say, the property in the contemplation of the court when the writ of attachment was issued?"
The answer must be that the second defendant nothing as the judgement/ debtor had no right, title or interest in No. 30A Airport Road, Kano. That must be so, because the auction sale had missed its target and its destination; and therefore even though in order in appearance, the purported auction sale so recklessly conducted by the first defendant might be anything but sufficiently effective to pass the property in No. 30A Airport Road, Kano, to the second defendant in law.
We are of opinions that the learned trial judge misdirected himself in law when he held that what had occurred in connection with the auction sale of the property was a mere irregularity within the meaning of the term in Section 47 of the Sheriffs and Civil Process Law, because, according to him, up to the point of sale, there was no irregularity. The provisions of Section 47 are as follows:
"At any time within 21 days from the date of the sale of any immovable property, application may be made to the court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the court that he has sustained substantial injury by reason of such irregularity."
It should be observed that the irregularity provided for in Section 47 as set out above is the irregularity in the conduct of the sale and not such fundamental irregularity extraneous to the conduct of the sale which might go to the very root of the sale itself. The irregularity in the intendment of the section is very much restricted, and, if we might hazard a guess, may take the form of collusion; or of fixing up the selling price secretly; or it may be that the property was not properly advertised before the auction sale. There is, of course, no such complaint in the present proceedings.
Learned counsel for the second defendant would appear in our view to have placed far too much reliance on the provisions of Sections 47 and 48 of the Sheriffs and Civil Process Law. The provisions of Section 48 are in the following terms :-
"If no such application as is mentioned in Section 47 be made, the sale shall be deemed absolute. If such application be made and the objection be disallowed, the court shall make an order confirming the sale; and in like manner, if the objection be allowed, the court shall make an order setting aside the sale for irregularity."
By reason of the provisions of Section 48 as set out above, Chief Rotimi Williams has submitted, correctly in our view, that to the extent that the first defendant could only in law have sold the right, title and interest of the judgement/debtor in the property sold, what the second defendant acquired as a result of the sale of No. 30A Airport Road, Kano, was whatever right, title and interest the judgement/debtor had in that property; so that if the judgement/debtor had nothing then the second defendant, of course, also bought nothing. But that since the sale had not been set aside under Section 47 of the law, then the sale must be considered absolute for the purpose of the Sheriffs and Civil Process Law.
While we are appreciative of the strength and force of this submission, it occurs to us that learned counsel for the second defendant would appear to have overlooked the covenant contained in the certificate of occupancy granted to the plaintiff by the Minister in 1961, and the provisions of Section 42 of the Land Tenure Law, Cap. 59, both of which must be read together.
In Section 42 of the Land Tenure Law, it is provided as follows:
"No right of occupancy granted under the provisions of this Law or under the provisions of any written Law replaced by this Law which is subject to a convenant, whether express or implied, by the holder not to assign, or which under any Law may not be alienated, without the consent or approval of the Military Governor or the Commissioner or a Native Authority or Local Authority shall be sold by or under the order of a Court save to a purchaser approved in writing by the Commissioner and upon terms also so approved."
Then convenant 13 of the Certificate of Occupancy, No. 10466, granted to the plaintiff provides:
"13. Not to alienate the right of occupancy hereby granted or any part thereof by sale, mortgage, transfer of possession, sublease or bequest or otherwise howsoever without the consent of the Commissioner first had and obtained."
Thus, it is apparent that the plaintiff under the terms of his occupancy of the land, No. 30A Airport Road, Kano, cannot in law alienate the right of occupancy granted to him by either selling, mortgaging, transferring of the possession thereof or by subletting or by even disposition on death without the consent of the Governor or Commissioner first had and obtained.
Then under Section 42 of the Land Tenure Law, the land, No 30A Airport Road, Kano, having been acquired for a specific purpose, namely, the building of a hotel as endorsed in the Certificate of Occupancy in 1961 and subject to the convenant above cited "shall not be sold by or under the order of a court save to purchaser approved in writing by the Commissioner and upon terms also so approved". There has been in these proceedings no evidence of such approval.
We are, therefore, of the opinion and hold and declare that the purported sale of the said property on or about 4th October, 1969, by the first defendant, pursuant to a writ of attachment in satisfaction of the judgement/ debtor in suit No. K/66/64 Martin Gutman vs. Northern Buying and Shipping Association Limitedwas null and void ab initio. It was irregular, improper and invalid and of no legal effect whatsoever.
Having reached that conclusion, it is unnecessary and inappropriate to set aside a nullity because there is nothing to be set aside. The sale is palpably bad.
We agree with the learned trial judge that the second and third items of the claim by the plaintiff were misconceived since in respect of the second item, the proper cause of action as indicated by the various authorities referred to by us above would have been one sounding in trespass and not in unlawful execution.
In respect of the third item of claim, the Registrar or whoever is the appropriate officer in charge of registration not having been made a party to these proceedings, we do not consider it appropriate to order a rectification of the register. In any case, in view of our judgement in this appeal, it seems to us that it is the duty of the plaintiff and his legal advisers to take whatever steps they consider appropriate and necessary to put things right.
This appeal therefore succeeds. It is allowed. The plaintiff is granted a declaration that the purported sale of the plaintiffs landed property on 4th October, 1969 at No 30A Airport Road, Kano, by the first defendant to the second defendant is irregular, improper and invalid and of no legal effect. The plaintiff is awarded costs in the High Court as we are of opinion that the plaintiff ought to have succeeded in the first item of his claim. The plaintiff is therefore entitled to half his costs in the High Court assessed and fixed at
N150.00 against both defendants. The plaintiff is also entitled to costs of this appeal which are assessed and fixed at N100.00. And this shall be the judgement of the Court.
It is further ordered that if the costs awarded to the defendants/ respondents in the High Court have been paid by the plaintiff/appellant, the same be forthwith refunded to him. The cross-appeal filed and argued by the second defendant which was not particularly pursued by learned counsel is also dismissed. No order as to costs.
Mr K. Sofola ...... For the Appellant
Chief F.R.A. Williams For the 2nd Respondent
Mr A.Odunlami ...... For the 1st Respondent