IN THE SUPREME COURT OF NIGERIA
On Thursday, the 15th day of June, 1978
Before Their Lordships
GEORGE S. SOWEMIMO….. Justice, Supreme Court
CHUKWUNWEIKE IDIGBE….. Justice, Supreme Court
ANTHONY N. ANIAGOLU….. Justice, Supreme Court
BARCLAYS BANK OF NIGERIA LTD
(1) ALHAJI ADAM BADEJOKO ASHIRU.
(2) CHIEF A. O. ORESANYA
(3) CHIEF OSIKOYA ARAWO LAWSON ARABA
This appeal, therefore, succeeds
1. STATUTES – Subordinate legislation – Meaning and nature of – When repugnant to the general law of the country or if it is repugnant to the provision of a statute – Effect of
Per IDIGBE, J.S.C. at P. 10, Paras. A-C.
2. WORDS AND PHRASES – Doctrine of Lis Pendis – Meaning and nature of
In the High Court of the Western (now Ogun) State, holden at Ijebu-Ode, the plaintiff/respondent brought an action against the defendants/appellants (Barclays Bank of (Nigeria) Ltd.), and the second and third defendants/respondents for the following claims:-
“(1) A declaratory judgment that the Deed of Mortgage, .registered as No. 3 at Page 3 in Volume III in the Lands Registry, Ibadan in respect of the property situate at No. 30 Ishoku Street, Ijebu-Ode, purported to be executed by the plaintiff or on behalf of the plaintiff……. in favour of the first defendants sometime in 1970 or thereabout is irregular, null and void and of no effect, on the grounds of (a) non est factum and or (b) that conditions precedent to the purported execution thereof were not complied with in law and in fact.
(2) A declaratory judgment that any sale or disposition alienation of the property described in the said deed of mortgage referred to in claim (1) above made by the first defendants to the second defendants on or about the 30th day of January, 1971, is null and void and of no effect.
(3) A declaratory judgment that the deed of mortgage registered as No. 12 at Page 12 in Volume 1321 in the Lands Registry. Lagos in respect of the property situate at No. 46 Akpata Street, Shomolu, purported to be executed by the plaintiff or on behalf of the plaintiff……… in favour of the first defendants sometime in 1970 or thereafter is irregular, null and void and of no effect, on the grounds of (a) non est factum and or (b) that conditions precedent to the purported execution thereof were not complied with in law and in fact.
(4) A declaratory judgment that any sale or disposition or alienation of the property described in the said deed of mortgage referred to in claim (3) defendant on or about 6th March, 1971, is null and void and of no effect.
(5) A declaration that the judgment of the Supreme Court of Nigeria in Appeal No. S.C. 362/66 dated the 19th day of December, 1968, in effect determined the relationship of the customer and Bankers as between the plaintiff and the first defendants respectively, whereby the first defendants are not entitled to charge or claim any further interests on the account of the plaintiff as it stood on the date of the said judgment.”
On the 19th day of June, 1972, the High Court holden at Ijebu-Ode dismissed the above claims; but an appeal from the decision of the High Court to the Western State Court of Appeal (hereafter referred as “the Court of Appeal’) was by a majority judgment of that court allowed. (Court of Appeal judgment of 21st May, 1975, in Suit CAW/50/74 refers). This appeal is from the said judgment of the Court of Appeal. This appeal concerns the first four claims.
The facts which from the background to these proceedings may be summarised thus: Between 1951 and 1959 the plaintiff, then actively engaged in trade obtained overdraft facilities from the defendants/appellants who were his bankers upon deposit of his title deeds for the properties described in claims (1) and (3) above (i.e. the land and buildings at 30 Ishoku Street, at Ijebu-Ode and at 46 Akpata Street, Shomolu (now in Lagos State), with the defendants/appellants, and in respect of this transaction he later signed “Memoranda of Deposit of Title Deeds” of the 22nd day of January, 1957, and 26th January, 1959, in favour of the defendants/appellant. In Suit J/18/63, the defendants/appellants (as plaintiffs) claimed from the plaintiff/respondent (as defendant):-
(a) A declaration that clause 2 of the Memorandum of Deposit of Deeds dated the 22nd January, 1957…………… made between the plaintiff of the one part and the defendant on the other is a binding contract upon the defendant.
(b) An order for specific performance by the defendant of the said contract.
(c) For damage amount to the sum of N3,670.3.9d; and
The High Court, holden at Ijebu-Ode (Oyemade, J., as he then was) on the 4th day of February, 1965 delivered its judgment in favour of the defendants/appellants; parts of the said judgment read:-
“At the time this action was commenced in May, 1963, Exhibit B shows that the defendant was owing the plaintiffs the sum of 2,115.5.1pounds. which has risen to the sum of 2,474.5.10pounds, as at 30th December, 1964. Having come to the conclusion that paragraph (1) of the Memoranda of Deposit of Deeds – Exhibits E and F – covers any monetary liability incurred by the defendant to the plaintiffs……. I hold that the plaintiffs are entitled to a declaration that clause 2 of Memoranda of Deposit of Deeds dated 22nd January, 1957, and 26th January, 1959, respectively is a binding contract as between the plaintiffs and the defendant and I give judgment accordingly.
As regards the claim for specific performance and damages……… I give judgment for the sum of 2,474.5.10pounds in lieu of ordering specific performance at this stage.”
Upon an appeal and cross appeal to the Supreme Court (S.C. 362/66), by the plaintiff/respondent herein and the defendants/appellants herein respectively, that court on the 19th day of December, 1968, dismissed the appeal of the plaintiff/respondent but in allowing the appeal of the defendants/appellants ordered as follows:-
“(i) The award to the plaintiff/respondent of 2,474.5.10.pounds by the Ijebu-Ode High Court in Suit No. J/18/63 on the 4th February, 1965, is hereby set aside.
(ii) The plaintiff/respondent is hereby granted a decree for specific performance as sought in the second head of claim………”
Upon refusal of the plaintiff/respondent to to execute a legal mortgage drawn up by the defendants/appellants or otherwise specifically perform the contract constituted in clause 2 of the Memoranda of Deposit of Deeds of the 22nd January, 1957, and 26th January, 1959, (as decreed by the Supreme Court in S.C. 362/66, the defendants/appellants caused the Registrar of the High Court Ijebu-Ode to (1) execute the Legal Mortgage Deeds prepared by them, on behalf of the plaintiff/respondent in respect of the said properties at Ishoku Street, Ijebu-Ode and at 46 Akpata Street, Shomolu, and to sign also the appropriate Land Statutory Transfer Forms (usually, referred to as Lands form 1A) in respect of the same properties.
Armed, as it were, with the Legal Mortgage, the defendants/appellants caused the property at 45, Akpata Street, Shomolu, to be sold to the first defendant/respondent herein for the sum of 705pounds, and that which is located at 30 Ishoku Street, Ijebu’-Ode to be sold to the second defendant/respondent herein for the sum of 700.0.0pounds. After the judgment of Oyemade, J., in Suit J/18/63 but after the plaintiff/respondent had entered his appeal (and the defendants/respondents’ cross-appeal had also been entered) in the Supreme Court, the plaintiff/respondent without waiting for the outcome of the said appeal, on the 28th day of January, 1966, as evidenced by a conveyance of the 23rd day of January, 1967, later registered as Instrument No. 36 at Page 36 in Volume 983 of the Lands Registry of Ibadan sold the land and property at 46 Akpata Street, Shomolu to one Adaran Ogundiani of Odolameso in Ijebu-Mushin for the sum of 200pounds. Following the sale of the property (i.e..,the premises at 46 Akpata Street, Shomolu) and also the premises at 30 Ishoku Street, Ijebu-Ode (the possession of which was retained by the plaintiff), by the defendants/appellants to the first defendant/respondent and second defendant/respondent herein respectively, the plaintiff/respondent commenced these proceedings.
At this stage, we think it is desirable to set out certain relevant paragraphs in the pleadings delivered on either side. Paragraphs 15, 16, 17, 21 and 21(b) of the Statement of Claim read:-
“(15) The first defendant in favour of whom specific performance was decreed did not comply with the terms of the contract alleged to be existing between the first defendant and the plaintiff.
(16) The plaintiff further states that the conditions precedent to the execution of a specific performance by the plaintiff were not fulfilled or set in motion by the first defendant.
(17) The first defendant, without notice to the plaintiff procured the Registrar of the High Court, Ijebu-Ode to execute a legal mortgage of the said buildings in its favour.
(21) The plaintiff will contend at the trial of this action that the purported legal mortgage executed by the Registrar of the High Court, Ijebu-Ode, in respect of the properties (sic) were illegal, irregular, null and void and of no effect, on the following grounds;-
(a) illegality: in that the Registrar had no locus standi to execute the particular legal mortgages;
(b) that conditions precedent to the purported execution thereof were not complied with in law and in fact;
(c) that the Supreme Court decreed for a specific performance of the contract and not the execution of a legal mortgage;
(d) that it was not shown that a specific sum of money was owing by the mortgagor to the mortgagee at the time of the execution;
(e) that the execution was done without or in excess of jurisdiction;
(f) non est factum.
21(b) That conditions precedent to the purported execution thereof were not complied with in law in that:-
(i) the letter of first defendant’s counsel inviting the Registrar of the High Court to execute the legal mortgage by proxy does not fulfil the requirement of the provisions of Order X rule 11 of the Sheriff and Civil Process Law Cap. 116 of the Laws of Western State of Nigeria;
(ii) the despatch of the mortgage deed and Lands Form 1A to the Registrar of the High Court does not constitute a tender to the court as required by law;
(iii) that the terms of the judgment of the Supreme Court did not include direction to execute any legal mortgage;
(iv) that no formal application was made to the court alleging failure, neglect or refusal by the plaintiff to execute the said deeds and other papers.
The relevant paragraphs in the pleadings of the defendants/appellants (apart from the general traverse in the leading paragraphs and some of the paragraphs confirmed to specific denial of certain material specific allegations in the Statement of Claim), are 7, 8, 11 and 12, and these reads:-
“(7) Following the decision of the Supreme Court in Appeal No. FSC, 362/66………… the bank by letters and personal visits by its Ijebu-Ode Manager called upon the plaintiff and presented him a deed of mortgage in respect of the two (properties) for execution in specific performance as ordered by the Supreme Court, as well as Lands Form 1A for approval of the transaction. The plaintiff refused to execute and sign the deed and the forms and confirmed his refusal by writing under his hand dated 20th January, 1970.
(8) Upon the plaintiff’s refusal to put into effect the judgment of the Supreme Court, the Bank in compliance with law applied to the Higher Registrar of the High Court of Justice Ijebu-Ode.. ……………… who executed the deed of mortgage and signed the Lands Form 1A in accordance with the terms of the judgment.
(11) Following the mortgage herein before referred to the bank by notice dated 15th July, 1970, made formal demand on the plaintiff requiring (him) to pay the sum of 6,401.1.8pounds. then due and sent the same by registered post to the plaintiff’s address at 30 Ishoku Street, Ijebu-Ode but the plaintiff refused to claim the notice which was returned.
(12) The Bank again forwarded another and identical bank notice to the plaintiff at his said address by registered post which he also refused to claim. The plaintiff also refused to accept a notice of the same date from the Bank Manager who made several attempts to deliver it to the plaintiff during the first two weeks of September, 1970.”
We think we should point out at this stage that the property referred to in these proceedings, sometimes as “30 Ishoku Street” is the same as 30 Iboku Street which, indeed, is the correct designation.
In the course of his evidence, the plaintiff admitted that the Bank Manager came to his house subsequent to the judgment of the Supreme Court in S.C. 362/66 and requested that he should sign a legal mortgage, but he refused to do so as he had already sold the property to a third party.
At the close of the case, the learned trial Judge reviewed the evidence before him against the issue joined by parties on the pleadings and by his judgment of the 19th day of June, 1972, dismissed the claims of the plaintiff/respondent herein. However, in dealing with the submissions of learned counsel for the plaintiff/respondent that the legal mortgages in the case in hand were invalid because the conditions precedent to a valid execution of the same had neither been fulfilled nor set in motion by the defendants/appellants, the learned trial Judge examined in detail the provisions of Order X rule 11 of the judgment (Enforcement) Rules Cap. 116, hereinafter referred to as the Sheriffs and Civil Process Rules Cap. 116″ which he said must be read in the light of Section 22 of the High Court Law of the Western State of Nigeria Cap. 44 in Volume 2 of the 1959 Edition of the Laws of Western State of Nigeria.
Thereafter, the learned Judge was at considerable pains in justifying the actions of the defendants/appellants in their execution of the legal mortgages (almost ‘unilaterally’ or quasi-unilaterally, as it were, in so far as the opposite party, that is, the plaintiff/respondent herein was concerned), under the provisions of Section 22 of the High Court Law aforesaid. This aspect of his judgment received considerable attack later in the Court of Appeal, on the appeal, in that court, of the plaintiff/respondent herein.
In the Court of Appeal, Chief F.R.A. Williams – learned counsel for the plaintiff/respondent (then the appellant) argued as he strenously has argued before us, that (1) the learned trial Judge erred in law in assuming that Order X rule 11 of the Sheriffs and Civil Process Rules is capable of being read in the light of Section 22 of the High Court Law aforesaid because,
1. (a) the two provisions are clearly inconsistent in the sense that they purport to lay down somewhat different rules for the same object;
(b) Order X rule 11 aforesaid is accordingly null and void; and
(2) The learned Judge erred in law and on the facts in failing to observe that the decree for specific performance ordered by the Supreme Court in SC.362/66 any deed, conveyance or other document to be executed; and
(3) The learned Judge erred in law and on the facts in failing to observe that there being no judgment directing the plaintiff to execute any deed, conveyance or other document neither Section 22 of the High Court Law nor (if it is valid) Order X rule 11 of the Sheriffs and Civil Process Rules aforesaid are applicable to the facts of this case.
Buttressing the foregoing argument, learned counsel for the plaintiff/respondent, Chief F.R.A. Williams submitted before us, as, indeed, he did in the Court of Appeal that if the provisions of a subsidiary legislation (in this case, a rule are inconsistent with those of the substantive legislation (or principal law) on the same subject then the former must be considered nugatory. Learned counsel then referred to the cases of Strickland v. Hayes (1896) 1 BD 290; Thomas v.Sutters (1900) 1 Ch. 10; and Powell v. May (1946) KB 330, in further support of his submission.
The effect of the submission of counsel in this: The defendants/appellants in acting, under Order X rule 11 of Cap. 116 which is nugatory, being inconsistent with Section 22 of the High Court Law Cap. 44 aforesaid, when they procured the High Court Registrar to execute the legal mortgages in question in the case in hand could only have obtained invalid documents and; therefore; a sale made under the invalid documents must be null and void; and the learned trial Judge in the High Court erred in law in upholding the same and dismissing the claims of the plaintiff/respondent.
Further, learned counsel for the plaintiff/respondent submitted to us, as he did in the Court Appeal, that the effect of rule 11 of Order X Cap. 116 aforesaid is to limit the field of choice of persons whom the court may order to execute a document in the circumstances set down in the Rule, by specifically “trying down the hands of the court” (as it were) which it requires to select only the Registrar whereas the field of selection as provided in the substantive law (Section 22 of the High Court Law, Cap. 14 aforesaid) is definitely wider.
The Court of Appeal in a majority judgment – Akinkugbe, J. A. (as he then was) dissentiente – found favour with the submissions of learned counsel for the plaintiff/respondent and allowing the appeal set aside the judgment and order of the High Court of Ijebu-Ode of the 19th day of June, 1972, and in substitution therefor ordered that judgment be entered for the plaintiff/respondent in terms of the first four claims on his writ. The first defendants (Barclays Bank of Nigeria Ltd) have now appealed to this court (and throughout this judgment they have been, and will hereafter be, referred to as the defendants/appellants.
We will now examine the submissions put before us. It is, we think, necessary to set out in detail the provisions of Section 22 of the High Court Law, Cap. 44 aforesaid and Order X rule 11 Cap. 116 aforesaid; the former reads:-
“Where any person neglects or refuses to comply with a judgment or order directing him to execute any conveyance, contract or other document, or to endorse any negotiable instrument, the court may on such terms and conditions, if any, as may be just, order that the conveyance, contract or other document shall be executed or that the negotiable instrument shall be endorsed by such person as the court may nominate for that purpose, and a conveyance, contract, document or other instrument so executed or endorsed shall operate and lie for all purposes as valid as if it had been executed or endorsed by the person originally directed to execute or endorse it;” (Underlining supplied by the court); and
the latter reads:-
“Where a judgment directs any deed to be executed or any negotiable instrument to be endorsed, and the party ordered to execute or endorse such deed or negotiable instrument shall neglect or refuse so to do, any party interested in having the same executed or endorsed, may prepare a deed or endorsement of the instrument in accordance with the terms of the judgment and tender the same to the court for execution, upon the proper stamp (if any is required by law), and the execution thereof by the registrar in the form prescribed by rule 13 of Order VI shall have the same effect as the execution or endorsement thereof by the party ordered to execute.” (Underlining supplied by the court).
In this court, learned counsel for the plaintiff/respondent has pressed the submission that (1) the provisions of Order X rule 11 Cap 116 aforesaid, being inconsistent with the provisions of Section 22 of the High Court Law Cap, 44 aforesaid, are nugatory and cannot be validly acted upon; and (2) that appropriate action can be taken, in the circumstances of the case in hand, only under the provisions of Section 22 of Cap 44 aforesaid which according to the submission of learned counsel for the plaintiff/respondent contemplates that there must be already in existence a conveyance, instrument or document, to be executed or endorsed when the order being flouted or disobeyed was made; and such, however, is not the position in the appeal in hand.
Now, the first part of the submission in the immediately preceding paragraph relates to the issue of subordinate legislation and the cases cited by learned counsel for the plaintiff/respondent in support of his contention relates in the main to bye-laws. “Subordinate legislation is legislation made by a person or body other than the sovereign in Parliament by virtue of powers conferred either by statute or by legislation which is itself made under statutory powers” (See Halsbury Laws of England, 3rd Edition, Vol 36 P. 476 Para 723).
Subordinate legislation is invalid if it is repugnant to the general law of the country or if it is repugnant to the provision of a statute which delegates to the body or person making it, the powers so to do. “It is, however, not bad merely because it deals with something which the general law does not deal with or because it makes unlawful something which the general law does not make unlawful, but it must not, expressly or by necessary implication, profess to alter the general law by making something unlawful which the general law makes lawful, or vice versa, or by adding something inconsistent with the provisions of a statute creating the same offence”, (see on the subject of Bye Law: Halsbury Laws of England Vol. 26, 3rd Edition, P. 516 Para 950).
Accordingly, subordinate legislation ‘is prima facie ultra vires if it is inconsistent with the substantive provisions of the statute by which the enabling power is conferred” (which is not the case here) “or of any other statute” (which is alleged or submitted to be the case here) “and equally, of course, if it purports to affect existing statutes expressly” (see Volume 36 Halsbury, Laws of England, 3rd Edition, Pages 491-492, Paragraph 743). (Brackets supplied).
Now, it appears to us that Section 22 of the High Court Law Cap 44 aforesaid gives a court power “on such terms and conditions, if any, as may be just” in the circumstances envisaged by the section to order a conveyance, instrument or document or contract, to be executed or endorsed “by such person as the court may nominate for that purpose” (and this really means: any person whosoever – including the registrar of the court – as the court may select or nominate).
Order X rule 11 of Cap, 116 aforesaid merely ordains that in circumstances which come within the purview of the rule then upon proper stamping – if necessary – of a document, instrument, or deed tendered to the court for execution, “the execution of the same by the registrar in the form prescribed by rule 13 of Order VI (i.e., of Cap. 116 aforesaid ), shall have the same effect as the execution or endorsement thereof by the party ordered to execute”.
There is in our view no inconsistency between the two provisions. Section 22 of Cap. 44 aforesaid undoubtedly provides a wider field of selection for people who may execute an instrument (and this includes the person mentioned in order X rule 11 Cap. 116) while rule 11 aforesaid (i.e., rule 11 of Order X Cap. 116), provides that execution or endorsement of the documents therein enumerated, in the circumstances provided for in that rule, by a particular person (i.e. the registrar of the High Court – although one of the persons who may, in the circumstances provided in Section 22 of Cap. 44 aforesaid, also be selected to carry out the duties envisaged in that section) in the particular form prescribed within the rule shall per se have effect as if execution or endorsement had been carried out by the party ordered to execute the same.
We see nothing in Section 22 Cap. 44 aforesaid which by necessary implication excludes, or makes inconsistent with it, a provision in a rule (such as Order X rule 11 aforesaid) made specifically for enforcement of judgments and, ordaining that the execution of deeds or endorsement of instruments by a particular person (not being) a person who is excluded by the statute, that is, Section 22 Cap. 44 aforesaid) in a particular manner shall have effect as if it had been executed by a person who was expected to do so under a decree of the court. One good reason for the rule is that getting the registrar to execute or endorse the documents in circumstances within the rule may and could be time-saving. Before we leave this aspect of the matter we wish to draw attention to the statements of Channell, J., and Hannen, J., in two cases which apart from the general principles of law already stated earlier on, in our opinion, also lend support to the view we take of this matter.
“On the question of repugnancy I repeat what I have said before. A bye-law is not repugnant to the general law merely because it creates a new offence, and says that something shall be unlawful which the law does not say is unlawful. It is repugnant if it expressly or by necessary implication professes to alter the general law of the land. (See Gentel v. Rapps (1902) 1 KB 160 at 165/166 per Channell, J., (Underlining supplied).
And in Irving v. Askew (1870) 5 LRQB 208 at 211, Hannen, J., observed:-
“It was further urged on behalf of the County Court Judge, that the 192nd Rule was repugnant to Section 15 of 13 and 14 Victoria Chapter 61, and therefore invalid. If the rule were really repugnant to the provisions of the Act of Parliament, I should think that the rule, though made under the provisions of the Act, would not override its enactment;…….. but I do not see that such repugnance exists. Section 15 enacts that the appeal shall be in the form of a case agreed on by both parties or their attorneys, and if they cannot agree, the Judge of the county court shall settle the case and sign it? This does not provide any mode of authenticating a case by both the parties. But it does not exclude the making of any rule or regulation on that subject if it should be found necessary to do so, and I think that good reasons may be given for requiring that the Judge should sign the case even though the parties have agreed upon it.” (Underlining supplied).
We are, therefore, satisfied that there is no inconsistency between the provisions of Section 22 of the High Court Law Cap. 44 aforesaid and that the provisions of the latter are far from nugatory. In our view, the majority judgment of the Court of Appeal on this particular issue is very much in error.
We will now deal with the submissions of learned counsel for the plaintiff/respondent that, in any event, the provisions of rule 11 of Order X Cap, 116 are inapplicable to the facts of the case in hand because, as he contends,
(I) the decree for specific performance ordered by the Supreme Court in SC.362/66 is not in terms of a judgment directing any deed or conveyance to be executed and,
(II) the provisions of the rule contemplates that there must be in existence, at the time of the judgment of the court, a conveyance or deed to be executed and to which the order for specific performance must have been directed, or can be attached. In support of his contention learned counsel for the plaintiff/respondent drew our attention to Section 47 of the Judicature Act 1925, the provisions of which are in pari materia with Section 22 of Cap. 44 aforesaid. Learned counsel then referred to precedents Nos. 45 and 47 in Volume 33 of the 2nd Edition of Atkins Court Forms, which he contends indicate the procedure to be followed in these matters.
There is no doubt that under the provisions of section 22 of the High Court Law Cap. 44 aforesaid, it is necessary to follow a procedure analogous to that which is set out in the precedents referred to in Volume 35 of Atkins Court Forms (i.e. Precedents Nos. 45 and 47). The provisions of the said section make it clear that the court may on such terms and conditions as may seen just order that the conveyance be executed by another person; thus, the section contemplates that the application to substitute the party originally ordered to execute the conveyance, should generally be on notice to that party or at least that the court may impose terms and conditions to its order for substitution of the party to whom the order for execution was originally directed. The language of Order X rule 11 Cap. 116 is, however, different.
It ordains that if the party ordered to execute a deed (or to endorse a negotiable instrument) should refuse to do so then “any party interested in having the same executed or endorsed, may prepare a deed (or endorsement of the instrument) in accordance with the terms of the judgment and tender the same to the court for execution” and provided it has been properly stamped (in the case of a document required to be stamped) then the execution of the same by the registrar of the court in the form prescribed by rule 13 of Order VI of Cap.116 shall have the same effect as the execution or endorsement thereof by the party originally ordered to execute the same.
It is to be noted that under the provisions of rule 11 Order X aforesaid, no question arises as to substitution of the party affected by the original order being made “upon such terms and conditions as may seem just to the court.” What seems to be necessary for this rule (Order X rule 11) to operate, is (1) an invitation to the party required under the order of court to execute the relevant document, (2) a refusal or neglect by the said party to carry out the said order of court; thereupon the party interested may prepare a deed in terms of the order of the court tender the same to court for the signature of the registrar. There must be clear evidence (as here) of (1) an invitation of the party ordered by court to execute the document; and (2) there must also be clear evidence (as here) of the party’s refusal or neglect to carry out the court’s order. Thereafter the party interested may prepare the document in terms of the judgment of the court and tender the same in the court for execution.
There is no particular procedure laid down for tendering the same to court; and as we observed earlier on, a notice of motion is not a sine qua non, that is, it is not contemplated as necessary within this rule, at this stage. Therefore, when, as here, it is shown that the document or instrument after it had been prepared (following a refusal or neglect of the party originally ordered to execute the same) was lodged with the High Court Registrar for execution, the registrar undoubtedly has a duty to bring the same to the notice of the Judge who on being satisfied with the documents will authorise its execution by the registrar; this undoubtedly is a matter for the internal administration of the registry. When, as here, the document is shown to have complied with the terms of the judgment or order of court (as required by Order X rule 11) and it is further shown (as here) to have been executed by the registrar in the form prescribed by rule 13 of Order VI the onus, in our view, if the specific issue was so raised on the pleadings – which is not the case here) is on the party asserting that the execution had not been authorised by the court, to establish the same. There is no evidence of lack of authority of the court on the part of the registrar in executing the two legal mortgages under rule 11 of Order X Cap. 116 aforesaid.
In view of the foregoing observations, we are unable to uphold the contentions and submission of learned counsel for the plaintiff/respondent and are satisfied that the Court of Appeal erred in law in the view contained in the majority judgment that the provisions of Order X rule 11 of Cap. 116 aforesaid are nugatory. The matter, however, does not rest there since this court has still to determine the resultant positions of the second and third respondents vis-a-vis Ashiru (the plaintiff/respondent) and Ogundiani (the purchaser from Ashiru qua vendor of the premises at 46 Akpata Street, Shomolu, Lagos), in order to arrive at the proper order on the claims in these proceedings. There is, however, no problem with the property situate at 30 Ishoku Street, Ijebu-Ode. At the time of the execution of the legal mortgage by the Registrar of the High Court in favour of the Bank (defendants/appellants herein), the owner – Ashiru (plaintiff/respondent herein), had not divested (or attempted to divest) himself of his legal estate in that property.
Therefore, the Registrar of the High Court, Ijebu-Ode (hereafter referred to simply as “the Registrar at Ijebu-Ode”) by the legal mortgage he signed on behalf of Ashiru duly transferred the legal estate therein to the Bank who pursuant to its exercise of its power of sale thereunder duly transferred the legal estate to Chief Oresanya (the second defendant/respondent). There is need, however, to consider in detail the nature and effect of the purported sale of the property at 46 Akpata Street, Shomolu, Lagos to Ogundiani. There is evidence that Ogundiani bought this property with actual notice and full knowledge of the fact and nature of the security which the said property constituted in favour of the defendants/appellants ( in this judgment also referred to simply as “the Bank”).
He, therefore, took the legal estate (if, at law and in equity, he did) subject to the Bank’s equitable mortgage and, as we have already explained in the judgment delivered this morning in the Appeal No. 470/75, that in the circumstances, the purported transfer of the legal estate aforesaid, if effective, ought not to be allowed, in equity, to supersede the equitable rights of the Bank until he (Ogundiani) or Ashiru (the plaintiff/respondent) gets “rid of” the Bank’s equitable mortgage (see Jared v. Clements (1903) 1 Ch. 428); and if not “got rid of”, the purported sale of the legal estate cannot avail the plaintiff/respondent and/or Ogundiani against the Bank.
We have taken the precaution of querying the effectiveness of the purported transfer of the legal estate in 46 Akpata Street, Shomolu to Ogundiani by Ashiru because of the effect of the doctrine of lis pendens on this particular transaction. We dwelt at length already with the equitable doctrine of “Notice” in our judgment in SC. 470/75, delivered this morning and no useful purpose will be served in going over the grounds again or repeating our reasons for the above view. Again, it should be pointed out that where, as here, there is a prior covenant by which a person (in this case, the vendor) binds himself to convey the legal estate in a particular property, if called upon so to do, to another (in this case, a mortgagee), a subsequent conveyance by the vendor of the legal estate in the same property to a third party (as purchaser) must be void not voidable – not on the ground of the transaction being in fraud of creditors ( i.e. offending the relevant section of the statute which provides against conveyances in fraud of creditors) but on the ground that, in equity, he (the vendor) cannot while the covenant under which he is bound to convey the legal estate to the earlier obligee is still in force, convey the same to another.
But the transaction in respect of this property i.e., 46, Akpata Street, Shomolu, Lagos is clearly caught by another doctrine of law – the doctrine of lis pendens which hardly has any bearing on the equitable doctrine of notice. It has been said that the doctrine affecting a purchaser is not founded upon any doctrine of actual or constructive notice, but upon the fact that the law does not allow to litigant parties, and give to them pending the litigation, rights in the property in dispute so as to prejudice the opposite party. Usually taken as the clearest exposition of this doctrine is the statement of Turner, LJ., in Bellamy v. Sabine (1857) 26 LJ (N.S.) Equity Reports, 797 at 803, and we will quote extensively from the said judgment:
“The doctrine of lis pendens is not, as I conceive founded upon any of the peculiar tenets of a court of equity as to implied or constructive notice. It is, as I think, a doctrine common to the courts both of law and equity, and rests, as I apprehend, upon this foundation that it would plainly be impossible that any action or suit could be brought to a successful termination if alienations pendente lite were permitted to prevail.
The plaintiff would be liable in every case alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceedings. That this doctrine belongs to a court of law no less than courts of equity appears from a passage in 2 Inst. 375, where Lord Coke, referring to an alienation by a mesne lord pending a write, says that the alienee could not take advantage of a particular provision in the Statute of Westminster 2nd ‘because he came to the mesnalty pendente brevi, and in judgment of law the mesne (as to the plaintiff) remains seised of the mesnalty; for pendente lite nihil innovetur’ ; and though Lord Bacon’s Orders, which give the rule in equity, are very generally expressed – the language of the order upon this subject being ‘no decree bindeth any that cometh in bona fide by Conveyance from the defendant before the bill exhibited, and is made no party, neither by bill nor order; but where he comes in pendente lite and while the suit is in full prosecution (and this includes while the suit is under appeal), and without any colour of allowance or privity of the court, there regularly the decree bindeth’, – this Order must, I think, be understood to mean that the decree binds so far as the title of the plaintiff is concerned ……..” (Underlining and square brackets supplied by the court).
In the same suit, the Lord Chancellor made these pertinent observations:-
“It is scarcely accurate to speak of lis pendens as affecting a purchaser upon the doctrine of notice, although undoubtedly the language of the court often so describes its operation. It affects him not because it amounts to notice but because the law does not allow to litigant parties and give to them pending the litigation, rights in the property in dispute, so as to prejudice the opposite party. Where a litigation is pending between a plaintiff and a defendant, as to the right to a particular estate, the necessities of mankind require that the decision of the court in the suit shall be binding, not only on the litigant parties, but also upon those who derive title under them by alienation made pending the suit; whether such alienees had, or had not , notice of the pending proceedings. If this were so there could be no certainty that litigation would ever come to an end. A mortgage or sale made before a final decree to a person who had no notice of pending proceedings, would always render a new suit necessary; and so interminable litigation might be the consequence ……………..” (1857) 26 LJ., (N.S.) Equiry Reports at 801).
Later in his judgment the Lord Chancellor in support of the above principle of law stated clearly the additional burden and effect which the equitable doctrine of notice can place on a purchaser. Said the learned Lord Chancellor:-
“Notice of the equitable claim, insisted on by the plaintiff would prevent their setting up a legal title against that claim; and whether the notice came to them by means of their being made aware that a suit was pending, in which the right claimed appeared to be claimed, or in any other manner would be immaterial. But in such a case the legal title would be affected not by reason of their being lis pendens, but by reason of the mortgages (and) or purchaser having notice of the claim ……….
……. That this is the true doctrine as to lis pendens , appears to me not only founded on principle, but also consistent with the authorities. In Culpepper v. Aston 2 Ch. Cas. 115 land had been devised to a trustee to sell for payment of debts. The heir filed his bill against the trustee, alleging that the real estate was not wanted for the debts, and therefore, praying a conveyance. It was held that a sale by the trustee pendente lite did not bind the heir. So in Sorrell v. Carpenter 2. P. Wms. 487, the plaintiff instituted a suit against one Ligo upon a claim, which by the decree he established, to certain leasehold estates. Pending the suit, Ligo sold to the defendant. The question was, whether the defendant Carpenter could sustain his purchase Lord King was clear that he could not, although upon some formal ground the bill in that case was doctrine really was that pending a litigation, a defendant cannot by alienation affect the right of the plaintiff to the property in dispute ……….”(Square brackets and underlining supplied by this court). See (1857) 26 L.J. (N.S.) Equiry Report at P. 801.
The case of Bellamy v. Sabine is a decision of a full Court of Appeal and we have quoted at length from portions of the judgments of their Lordships of the Court of Appeal which we consider germaine to the rather complex legal situation which has arisen as a result of the fraudulent transaction between Ashiru (the plaintiff/respondent herein) and his accomplice, Ogundiani (the purchaser from Ashiru).
Now applying the doctrine of lis pendens as confirmed in the case of Bellamy (Supra) to the facts in these proceedings what do we find?
(1) Ashiru selling to Ogundiani the property (16 Akpata Street, Shomolu Lagos) which was the subject of a pending claim for specific performance at the instance of the Bank (as the plaintiff) in Suit J/18/63, in circumstances which are, undoubtedly, fraudulent.
And, here, we must point out that notwithstanding the determination by Oyemade J. the claim was still pending as it was still – to borrow the language of Turner LJ., in Bellamy (Supra) – “in full prosecution that is, under appeal, as the case of Kinsman v. Kinsman has shown (see (1831) 1 Russ & M. 617; also 39 E.R. 236; for as the Lord Chancellor (Lyndhurst) pointed out in that case “in order to constitute a litis pendentia, there must be a continuance of the litis contestatio (see 39 ER at 238). (2) Pending the appeal, and without waiting for determination on the cross-appeal by the Bank or on his own appeal, Ashiru sold to Ogundiani who knew full well that (a) the property he was buying was security for money due and owing to the Bank who kept the title deeds under a memorandum of deposit of title deeds in which his vendor had covenanted to execute, in favour of the Bank, a legal mortgage in respect of the same property and (b) that the pending claim was one in which the Bank was already calling for the legal estate he was buying – for the claim in the suit, to the knowledge of Ogundiani was for specific performance of the vital clause in the memorandum of deposit of title deeds.
In passing, however, we think that it should be mentioned that the doctrine of lis pendens does not apply to every suit. It applies to a suit in which the object is to recover or assert title to a specific property; the property, however, must be real property, for the doctrine has no application to personal property – (see also Wigram v. Buckley (1894) 3 Ch. 483 at 486 and 492-3). That the doctrine exists at common law is confirmed in Sorrell v. Carpenter (Supra) and a lis pendens only became compulsorily registrable for the first time in England by the Statute 2 and 3 Victoria Chapter II (judgments Act 1839); until then the common law principles of the doctrine applied with full effect. As was stated in Sorrell v. Carpenter:
“Where there is a conveyance made pendente lite…………even though the alienation be for ever so good a consideration, yet if made pendente lite, the purchase is to be set aside; and this is in imitation of the proceedings in a real action at common law, where, if the defendant aliens after the pendency of the writ, the judgment in the real action will over-reach such alienation. But where there is a real and fair purchaser without any notice, it is a very hard case, especially in a Court of Equiry, to set such purchase aside …….” (per the Lord Chancellor in Sorrell (supra) at 2 P. Wms. 482 at 483).
It only remains for us to mention that none of the Statutes which before 1900 made the registration of lis pendens compulsory in the United Kingdom qualify, here, as one of “general application” and in any event, at all material times to the trial of this case in the High Court of Lagos, the Law of England Application Law Cap. 60 of the Law of Western Nigeria, in Volume 3 of the 1959 Edition of the Laws of Western Nigeria, was applicable to these proceedings and any statute which in England required the registration of a lis pendens would be inapplicable to these proceedings; and, therefore, there is no local statutory requirement for registration of lis pendens applicable to these proceedings.
It follows, therefore, that the claims of the plaintiff/respondent in items (3) and (4) in these proceedings cannot succeed.
Two other aspects of the submissions made in this appeal relate (1) to conditions for the award of declaratory judgments and, (2) the issue of fraudulent conveyance, that is, conveyances in fraud of creditors and we think we should now deal with the two subjects; we prefer to begin with the former.
The question quite often raised, is whether or not the declaratory judgment is an equitable remedy and whether the court should be guided by equitable principles in making the award? In other words should a plaintiff who seeks the remedy fail, if it is shown that he has not come to the court with clean hands or, as the expression goes, that he should himself “do equity”? The case of Chapman v. Michaelson (1908) 2 Ch. 612; affirmed in (1909) 1 Ch. 238 is generally regarded as one of the decisions in which this question was directly discussed and dealt with, and it was there decided that the declaratory judgment is not an equitable remedy. (See Eve J. (1908) 2 Ch. at 620-622; and Cozens-Hardy M.R. (1909) 1 Ch. at 242). However, in a more recent case of Hordern-Richmond Limited v. Duncan (1947) K.B. 545 at 552 the power to award declarations was ascribed to the equitable jurisdiction of the court.
The description of the remedy as an equitable relief seems justifiable on historical grounds and legal history shows that its equitable origin has left its marks (i.e. equitable marks) on the remedy. Therefore, it has remained a remedy of a discretionary nature and the discretion of the courts in this regard is wide enough to allow it to take into account virtually all objections and/or defences available in all equitable proceedings in favour of a party resisting a claim for the remedy; and accordingly, in one of the many cases in which the courts have entertained equitable defences to the claim, it was indicated that inequitable behaviour on the part of the plaintiff might be raised as a defence in declaratory proceedings. (See City of London v. Horner (1914) 111 LT., 512).
We have accordingly examined the general conduct of the plaintiff/respondent, as borne out by the findings of fact in the court of trial, and are satisfied that far from satisfactory it savoured of a calculated attempt to despoil the defendants/appellants of the fruits of judgment (on their claim for specific performance of clause (2) of the Memoranda of Deposit of Deeds aforesaid) in the event of the defendants/respondents’ cross-appeal from the judgment of Oyemade, J., in J/18/63, aforesaid being allowed.
His action, in those circumstances, in effecting a sale of the very property involved in the claim for specific performance in Suit J/18/63 was indeed dishonest and fraudulent. His action in, not only keeping to himself the purchase price of this property but also, not informing the Bank (defendants/appellants) of the sale which took place in January, 1966 until January, 1970 underscores not only the plaintiff/respondent’s, dishonest disposition but his fraudulent intention in making the conveyance to Ogundiani; he certainly, in these proceedings, has not come to the court with clean hands. In the circumstances, therefore, the plaintiff/respondent in our view, is not entitled to the declarations he seeks and they were rightly dismissed by the court of trial.
Again, the question of the conveyance by the plaintiff/respondent in favour of Ogundiani having been made in fraud of Creditors – in this case, the Bank – received full consideration in our judgment in SC. 420/75 delivered earlier on this morning and there is, in our view, no point in repeating here everything that was said in that judgment. It is, however, sufficient to say that we are satisfied that the said conveyance was made by Ashiru not only with the undoubted intent of defrauding the Bank but that the third party, Ogundiani, actively took part in the fraudulent scheme. However, the relevant law on the subject is that such a conveyance is voidable at the instance of any person prejudiced. (Section 181 of the Property and Conveyancing Law Cap. 190 of the 1959 Edition of the Laws of Western State, applicable to these proceedings; Volume 5 of the Laws of Western Region of Nigeria), and NOT, ipso facto, void. There is no cross-claim, cross-action or cross-prayer, by the Bank, in these proceedings for the conveyance by Ashiru (plaintiff/respondent) to Ogundiani (the third party) to be set aside; accordingly the Bank cannot, in these proceedings, avail itself of the provisions of Section 181 of Cap. 190 aforesaid.
This appeal, therefore, succeeds for the reasons already stated in regard to our observations on (1) Order X rule 11 of Cap. 116 aforesaid, (2) the doctrine of lis pendis and (3) the principles for the award of declaratory judgments. The majority judgment of the Western State Court of Appeal in CAW/50/74 dated the 21st day of May, 1975, together with the order for costs are hereby set aside. This court hereby affirms the judgment and orders of the High Court of Western State holden at Ijebu-Ode (Olu Ayoola, J.), in Suit HCJ/16/71 dated the 14th day of June, 1972. The defendants/appellants shall have costs against the plaintiff/respondent, in the Court of Appeal assessed and fixed at N160 and in this court assessed and fixed at N340.
Olisa Chukwurah, Esq., SAN, (with him, A. O. Okubadejo & Dotun Koleso)…..For Appellant
Chief F. R. A. Williams SAN, (with him, Chief Okenla & J. A. Kester)…..For Respondent