M. DEBS AND CO. LTD (PLAINTIFF)
ALBERTO JOSE MISSRI (DEFENDANT)
(1961) All N.L.R. 757
Division: High Court of Lagos
Date of Judgment: 6th November, 1961
Case Number: Suit No. LD/211/60
Before: Bellamy, J.
Action for Unlawful Execution.
The plaintiff is a limited liability company and has three shops in Lagos, one of which is situate at No. 100 Victoria Street. The defendant also carries on business in Lagos and had, in 1959, obtained Judgment against one Ahmed Debs for £3,422-6s-4d with £94-10s costs. Ahmed Debs gave notice of appeal. A stay of execution was granted pending the determination of the appeal on the condition that the appellant enter into a bond with two named sureties to secure the payment of the Judgment debt and costs. In fulfilment of the condition, a bond was executed; one of the signatories was the plaintiff Company. The defendant filed a Cross-appeal asking that the decision of the High Court be varied to include an award for interest. The appeal and cross-appeal were heard in due course, and on the 31st of May, 1960, the Federal Supreme Court dismissed the appeal of Ahmed Debs and allowed the Cross-appeal. In addition to confirming the Judgment for £3,422-6s-4d it awarded the sum of £864 as interest on that sum from the 17th of March, 1956 to the 31st of May, 1960 and 5 percent per annum interest on £3,422 as from the 1st of June, 1960 until payment; Ahmed Debs was ordered to pay the costs of appeal assessed at 50 guineas.
On the 4th of June, 1960, the defendant's solicitor took out a Writ of Execution for £4,339-8s-11d, the total amount to be levied being £4,341-4s-5d exclusive of fees and expenses of execution. On the 8th of June, the bailiff levied execution on Ahmed Debs' shop at 122 Victoria Street, Lagos, and seized bank notes and cash amounting to £4,097-5s. He also seized a cheque for £225 which he found in a safe in an office behind the shop. The Writ was returned, together with the money and cheque, to the Deputy Sheriff. Three separate claims in respect of the attached property were made to the Deputy Sheriff on the same day. On the 13th of June, before the defendant was notified of the claims to the attached property, his solicitor applied for a Writ whereby to attach and sell the movable property of the plaintiff, for the amount of £3,516-16s-4d; the amount for which the plaintiff had rendered itself liable, as surety for the payment of the Judgment debt and costs. On the 13th of June, the Writ was issued, and a bailiff, accompanied by the defendant's solicitor, went to the plaintiff's shop at No. 100 Victoria Street to execute the same. On entering the premises, the bailiff told the Managing Director of the plaintiff Company that he had come to levy execution; he delivered a notice of attachment to him and proceeded to seal a safe in the plaintiff's office with wax but had only succeeded in doing so partially when he received instructions from the High Court recalling the writ. The plaintiff then removed the seal and withdrew from the premises. The plaintiff brought this action claiming damages against the defendant for unlawfully levying execution on his shop at No. 100 Victoria Street, Lagos.
(1) An entry by a Bailiff upon premises where goods are situate, together with an intimation of an intention to seize the goods under a Writ, amounts to a seizure.
(2) A Writ is not executed, even though a seizure of goods has been made, if the seizure is followed by an immediate recall of the Writ and by an immediate withdrawal of the bailiff from possession.
(1) The meaning of "satisfied Judgment" discussed.
(2) The plaintiff must prove malice in order to succeed in an action for unlawful execution.
Cases referred to:-
Bissicks v. Bath Colliery Co. Limited, (1877), 2 exhibit D. 459; 46 L.J.Q.B. 611; 39 L.T. 800.
Gladstone v. Padwick, (1871), L.R. 6 Exch. 203; 40 L.J. exhhibit 154; 25 L.T. 96; 19 W.R. 1064.
Tubbutt v. Holt, (1884), 1 Car. & Kir 280; 174 E.R. 811.
Glissold v. Cratchley, (1910), 2 K.B. 244; 79 L.J.K.B. 635; 102 L.T. 520; 26 T.L.R. 409; 54 Sol. Jo. 442.
Order and Rules referred to:-
Judgment (Enforcement) Rules Order V, rule 4
ACTION for Unlawful Execution.
Ogunsanya for the Plaintiff.
Impey for the Defendant.
Bellamy, J.:-This is a claim for £20,000 as damages for an alleged unlawful levying of execution at the shop of the plaintiff by the defendant, his servants or agents. The plaintiff alleges and complains that on the 13th June, 1960, the Deputy Sheriff's Officer entered the plaintiff's shop at 100 Victoria Street, Lagos, and that he executed on the said premises a writ of attachment and sale of goods sued out by the defendant against the plaintiff after the money payable under the Judgment in Suit No. LD/254/1957 for the payment of which the plaintiff had stood surety had been recovered by the defendant by execution against the goods of the Judgment debtor on the 8th June, 1960.
The following facts are not in dispute. The plaintiff, M. Debs and Company Limited, is a limited company incorporated in Nigeria and carries on business in Nigeria at Lagos and Kano as wholesale and retail general merchant. The plaintiff has three shops in Lagos, one of which is at 100 Victoria Street. The shop at 100 Victoria Street comprises a shop, with a frontage on Victoria Street, and behind it an office, access to which is gained through a door at the back of the shop, and three warehouses.
In Suit No. LD/254/1957, Alberto Jose Missri the defendant in the present suit, sued one Ahmed Debs in the High Court of Lagos to recover monies allegedly due and payable on a number of promissory notes, and on the 16th March, 1959, Judgment was entered in this suit in favour of Mr Missri for £3,422-6s-4d, with costs assessed at £94-10s-0d. The said Ahmed Debs gave notice of appeal against this Judgment, and he applied for a stay of execution pending the determination of the appeal. On the 31st March, 1959, a stay was granted conditionally upon the said Ahmed Debs entering into a bond together with certain named sureties to secure the payment of the Judgment debt and costs pending the determination of the appeal. The condition for granting the stay was fulfilled. A bond was executed, one of the signatories to which as bondsman being the plaintiff in the present suit, M. Debs and Company Limited Thereafter, Mr Missri gave notice of his intention to contend upon the hearing of the appeal that the decision of the High Court should be varied by including an award for interest on the promissory notes as from the date of their maturity. The appeal and cross-appeal were, in the course of time, heard, and on the 31st May, 1960, the Federal Supreme Court delivered its Judgment, the result of which was that the appeal was dismissed and the cross-appeal was allowed. Mr Missri was awarded (a) interest at the rate of 6 per cent per annum on the sum of £3,422-6s-6d, from the 17th March, 1956 to 31st May, 1960 (an amount of £864-12s-7d; (b) interest at the rate of 5 per cent per annum on £3,422-6s-4d, from the 1st June, 1960, until payment; and (c) the costs of the appeal and of the cross-appeal totalling 50 guineas.
On the 4th June, 1960, upon the application of Mr H.A. Lardner, Mr Missri's Solicitor, a writ of attachment and sale of goods was issued for the amount of £4,339-8s-11d, the total amount to be levied being £4,341-4s-5d, exclusive of fees and expenses incurred after attachment, and on the 8th June, about noon, a bailiff, in pursuance of the writ, entered the said Ahmed Deb's shop at 122 Victoria Street, Lagos, and he seized bank notes and cash to the amount of £4,097-5s-0d, and a cheque for £225 which he found in a safe in an office behind the shop. Nothing else in the premises was seized, and the bailiff returned the writ, together with the money and cheque which he had seized, to the Deputy Sheriff. On the same day, 8th June, three separate claims in respect of the attached property were made to the Deputy Sheriff. One came from a Mr Abdul Raouf Debs' Solicitor, Mr R.A. Fani-Kayode, who stated that Mr Abdul Raouf Debs was a partner of the firm Ahmed Debs and Co., and that he, Mr Abdul Raouf Debs, claimed "all the properties goods and contents of the shop No. 122 Victoria Street, Lagos" as partnership property. Another came from the same Solicitor, written on behalf of his client, MrsL.J. Dosunmu, which stated that MrsL.J. Dosunmu claimed bank notes to the amount of £2,500 which was deposited by her with Ahmed Debs and Co., at 122 Victoria Street, Lagos. And the third came from the same Solicitor, written on behalf of his clients, Miss Batili Olubisi and Miss Titilayo, both of whom claimed bank notes to the amount of £1,500 which was said to have been deposited by them with Ahmed Debs and Co. at 122 Victoria Street, Lagos. On the 10th June, and before Mr Missri had been notified of the claims to the attached property by the Registrar of the High Court, Mr Lardner applied on his behalf for the issue of a writ of attachment and sale of the moveable property of plaintiff, M. Debs and Company Limited, for the amount of £3,516-16s-4d, the extent to which the plaintiff had rendered itself liable as security for the payment of the Judgment debt and costs. On the 13th June, the writ of attachment and sale was issued and, in pursuance of it, on the same morning, the bailiff, who was accompanied by Mr Lardner, went to the plaintiff's shop at 100 Victoria Street. Upon their arrival the bailiff and Mr Lardner entered the plaintiff's shop. A shop assistant was present, and the bailiff informed him of the nature of his visit and requested to see the managing director. He was told by the assistant that he was out, and then the bailiff and Mr Lardner were shown into the office at the back of the shop while the assistant made a telephone call. A short while later a Mr Mizar Debs arrived. He was the managing director M. Debs and Company Limited, and Mr Lardner and he were known to each other. Whether Mr Mizar Debs arrived at the shop that morning alone or in company with Chief Oladipo Moore, the plaintiff's Solicitor, is a matter which is in dispute, but I regard the matter as irrelevant to the issues and I do not decide it. There is, of course, no doubt whatever that Chief Moore did arrive at the plaintiff's shop at 100 Victoria Street in the course of that morning, and that he was present in the office at a time when the bailiff, Mr Lardner and Mr Mizar Debs were there.
Upon the arrival of Mr Mizar Debs the bailiff informed him of the nature of his visit and delivered to him a notice of attachment. The bailiff asked Mr Mizar Debs if he was going to pay to him the amount to be levied, and Mr Mizar Debs replied in the negative. There were two safes in the office, and the bailiff then requested Mr Mizar Debs to open them. Mr Mizar Debs refused. What then took place in the plaintiff's shop and whether what took place amounted to a seizure are questions which fall to be decided. It appears, and it is a fact admitted by the parties, that later that same day the writ of attachment was recalled on the directions of the Chief Justice of the High Court of Lagos and this fact was communicated to the bailiff while he was still on the premises of the plaintiff, and he immediately withdrew. The bailiff recovered the notice of attachment which he had delivered to Mr Mizar Debs before he left the plaintiff's premises, and he later returned it, together with the writ, to the Deputy Sheriff.
Mr Mizar Debs' evidence was to the effect that his assistant, on his orders, opened one of the safes in the office, and the bailiff then checked the money in it. Having checked the money, he said that the bailiff then sealed the safe using red sealing wax and, what he described as, the "Government seal." He said that the other safe was then opened; the bailiff examined the contents and had the safe locked, and he then proceeded to seal the second safe in the same manner as he had done the first safe. Mr Debs said that they then left the office for the shop. Here the bailiff asked for a sheet of paper, which was supplied, and the bailiff then commenced to take an inventory of the goods displayed on the shelves in the shop. It was while he was so engaged that a telephone message was received by Mr Lardner while he was in the shop in consequence of which the bailiff stopped further work on his inventory. The bailiff then removed the seals from the safes, picked up the notice of attachment which was lying on the desk in the office, and left the premises.
Chief Moore's evidence was that only one safe in the plaintiff's office was sealed. He said that it was in his presence that "wax and tape were placed across the door of the safe and handle." At this juncture apparently Chief Moore left the plaintiff's premises for the High Court, and he says that on his return an inventory was being taken in the shop. A message was delivered, he says, to Mr Lardner as a result of which Mr Lardner left the plaintiff's premises for Mr Missri's place of business across the road, and when he returned Mr Lardner made a telephone call from the plaintiff's office. Later, he says, Mr Lardner announced that the writ of attachment had been suspended, and the bailiff then removed the seal from the safe and withdrew.
Mr Lardner gave evidence for the defendant. On this aspect of the case his evidence was that the safe was not opened. He said: "The safe was not opened, and the bailiff brought out his wax, seal, and tape. He also brought out a box of matches. And he melted some wax and put it on the safe. I cannot say whether he put any tape on." He says that he then received a message in consequence of which he spoke to the Registrar of the High Court. As a result of what he was told, the bailiff and he then left the premises. He was emphatic that the bailiff did not take an inventory of the goods in the shop.
The bailiff, Theophilus Bolaji Shodiya, gave evidence for the defendant. Dealing with the sealing of the safe, he said: "I demanded to look into his safe which he refused. Then I started to seal up the safe. I had not finished sealing the safe when a Syrian entered into the office and spoke to lawyer Lardner.... I then telephoned from the office of M. Debs and Company to the High Court and spoke to Mr Banjoko. He informed me that I should cancel the writ. I then removed the seal on the safe." And, under cross-examination, he said, "It is not correct to say that I had completely sealed two safes; I had just started on one when I received information that the Registrar had cancelled it (i.e. the writ). Before the safe is sealed one must put wax on both sides, and then the tape is put on it and then the seals applied. I had put the seal on one end only." He denied the taking of an inventory of the goods in the plaintiff's shop, or any part of it, insisting that he had only partially sealed the one safe in the office when he had instructions to withdraw and did withdraw.
On all this evidence, it is, I think, clear-it is admitted on all sides-that the bailiff did apply wax to the safe, and on the bailiff's own evidence he had applied the court seal on the wax on one side of the safe. Mr Mizar Debs has been shown to be inaccurate in many particulars of his evidence, and I can place little reliance upon his recollection of what happened. Chief Moore frankly admitted that the events about which he was asked to speak had happened some time ago, and I prefer the evidence of the bailiff himself, although it might well be said that, having regard to the large numbers of executions levied by him in the course of the year, his recollection may also be at fault. On this part of the case, I find as a fact that the bailiff applied the sealing wax as he said and that he had affixed the seal on one side of the safe only when he withdrew. I also find as a fact that the bailiff did not take an inventory of the goods in the shop or commence to take one before withdrawing.
To summarise the material facts that I find as to what happened at 100 Victoria Street, on the 13th June, 1960, they are: (1) the bailiff, in pursuance of the writ, entered upon the premises; (2) he made known to the managing director of the plaintiff company that he had come to levy execution; (3) he thereupon delivered to the said managing director a notice of attachment as required by Order V, rule 4 of the Judgments (Enforcement) Rules; (4) he thereupon partially sealed with wax a safe in the plaintiff's office on the said premises; and (5) upon the writ being recalled, and before completing the sealing of the safe, he removed the tape and wax on the safe and withdrew from the premises.
These being the facts, the first question to be considered is, was there in law an execution? The point was only very faintly argued by Counsel. It was submitted for the defendant that there was no execution. It was contended that there was an entry upon the premises to execute the writ, but no goods were in fact attached, and consequently, there could not be said to be an execution of the writ. Counsel for the plaintiff was content to say that there was an execution and to leave it at that.
In Halsbury's Laws, Vol.16 3rd Edition, at 55, paragraph 84, I find the following passage:-
For an act of the sheriff or his bailiff to constitute a seizure of goods, it is not necessary that there should be any physical contact with the goods seized, nor does such contact necessarily amount to seizure. An entry upon the premises on which the goods are situate, together with an intimation of an intention to seize the goods will amount to a valid seizure, even where the premises are extensive and the property seized widely scattered, but some act must be done sufficient to intimate to the Judgment debtor or his servants that a seizure has been made.
It is only necessary to refer to two of the authorities cited in the notes to this passage. In Bissicks v. Bath Colliery Co. Limited, (1877) 2 exhibit D. 459, where the sheriff's officer went to the plaintiff's premises and told him that he had a warrant to execute a writ of fi.fa. for £28-7s-2d, and that he required immediate payment, otherwise further proceedings would be taken and the man must remain in possession, the plaintiff paid the sums demanded, including poundage and levy fees, the court held that the sheriff was entitled to both these items. Cockburn, C.J. said at 462: "We must look to see if the writ has been virtually executed", and Cleasby, B. said (ibid.): ." I think in this case there was in substance an actual levy...." On appeal from that decision Bramwell, L.J. said (3 Ex.D. at 175):-
The question is whether, upon the facts, there was a seizure.... upon the whole I think there was a seizure, for the officer did threaten to leave a man in possession.
And, Brett, L.J. observed (ibid.):-
I agree that there must be a seizure; but upon the facts I think there was a seizure. The sheriff's officer went to the plaintiff's house with a man, he obtained entry into the house, and whilst he was there the plaintiff's goods were under his control; he spoke as if he had made a seizure, and he treated what he was doing as if it was a seizure....
In Gladstone v. Padwick, (1871), L.R. 6 Exch. 203, where one of the questions was whether what was done by the sheriff's officer on a certain date amounted to a seizure, Bramwell, B. said in the course of his Judgment at 212:-
It is admitted, and it is clear, that it was not necessary for the sheriff to lay his hand on a single article.... I am of opinion that, when property is all in one holding, as it was here, if the sheriff goes and makes known... that he is come to seize, and does, so far as words and intention can go, seize all the goods on that holding, he has done enough....
There can be no doubt that the bailiff, Mr Shodiya, went to the plaintiff's shop to execute the writ of attachment and sale. When he announced to the managing director of the plaintiff company that he had come to levy execution, when he delivered to him the notice of attachment, when he asked the managing director, as I believe, whether he was going to pay and when the latter refused and he commenced to seal the safe in the office, I am satisfied, on the authorities I have referred to, that there was what amounted to a seizure. Had the bailiff then left the premises, and nothing further had happened, I should hold that, not only was there a seizure but an execution as well. But the matter did not stop there. Something intervened, and that was the recall of the writ by the Registrar of the High Court while, as I believe, the bailiff was in the process of sealing the safe, whereupon the bailiff removed the wax and tape he had placed on the safe and immediately withdrew from possession, taking with him the notice of attachment which he returned, with the writ, to the Deputy Sheriff. My view is that, in those circumstances, the writ was not executed. The facts here are, I think, distinguishable from those in Bissicks v. Bath Colliery Co. Limited In Bissicks' case, the sheriff's officer threatened to leave his man in possession if he was not immediately paid, and the plaintiff then paid the total amount for which the writ had been issued, including the execution fees. Clearly, as the court held, there was a seizure and execution. In the present case, the bailiff, after seizure, withdrew from the premises and abandoned the goods he had seized. The goods were no longer subject to the writ, and I hold that there was no execution.
As the plaintiff's claim is based on what it alleges was an unlawful execution, and I am satisfied, and have so held, that there was no execution, it follows that that is really an end of the plaintiff's case against the defendant. But as I have come to a definite view on other matters raised in the course of the hearing, I think it is right that I should give expression to these views.
In the first place, assuming for a moment that there was here what amounted to an execution of the writ, the next question to be considered is, was such execution wrongful as alleged by the plaintiff? The execution is said to be wrongful because at the date of the execution there was an amount in the hands of the Deputy Sheriff, the proceeds of an execution levied on the 8th June, 1960, on the goods of the Judgment debtor in Suit No. LD/254/1957, which was sufficient to satisfy the Judgment debt and costs in that suit for the payment of which the plaintiff had bound itself by bond.
Now, there can be no doubt that there was in the custody of the High Court of Lagos at the date of the issue of the writ against the plaintiff an amount of £4,097-5s-0d, and that the Deputy Sheriff, at that date, was holding for the benefit of the Judgment creditor a cheque for £225, both the money and the cheque having been seized in execution of the goods of the Judgment debtor in Suit No. LD/254/1957. Equally, there can be no doubt that, assuming that the time for payment of the cheque had arrived by the 13th June, 1960, and that the Judgment debtor was entitled to the proceeds of it, the sum of money in the High Court and the amount of the cheque together would not discharge the total amount to be levied on the writ. It follows, I think, that the defendant was entitled to sue out a writ of attachment and sale of the goods of the plaintiff for the amount still unsatisfied and the fees on issue of the writ. The execution could not have been wrongful, in my opinion, for the reason alleged, although it might have been wrongful as being levied on a writ endorsed for a larger amount than the amount remaining unsatisfied. But, it must not be overlooked that before the defendant sued out his writ, there had been three claims to the money, bank notes, and cheque which had been attached in execution of the writ against the Judgment debtor in Suit No. LD/254/1957, and these claims had not been withdrawn at the date of the alleged execution complained of. In my opinion, on the authority of Tebbutt v. Holt, (1884), 1 Car. and Kir. 280, where Parke, B. said at 289: "The law also is that, if the debt and costs are paid or satisfied, the Judgment is at an end", the Judgment here was not at an end, and the defendant, while these claims were still being insisted upon, was entitled to sue out his writ against the plaintiff for the amount for which the plaintiff was liable under the bond. That being my opinion, I hold that the execution complained of, if there was in fact an execution here, was lawful.
Finally, assuming that there was here an unlawful or wrongful execution levied on the goods of the plaintiff, can the plaintiff recover as per its writ? Neither in the writ nor in the plaintiff's Statement of Claim is malice averred. Certainly, malice has nowhere ever been proved by the plaintiff. I agree with Counsel for the defendant that the plaintiff not having either averred or proved malice, the case of Glissold v. Cratchley, (1910) 2 K.B. 244, is conclusive of the case in favour of the defendant. In an endeavour to surmount the hurdle created by the decision in this case, Counsel for the plaintiff vainly submitted that this was an action for damages for trespass. That is, of course, absurd: it is no such thing as reading the writ of summons will show.
The result is that in my Judgment this action is completely and utterly ill-founded and it must be dismissed with costs which are assessed at 100 guineas.