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BAFUNKE BRAITHWAITE AND VICTORIA ADUKE
V.
A. FOLARIN
WEST AFRICAN COUR OF APPEAL HOLDEN AT LAGOS
19TH DAY OF MAY, 1938
2PLR/1938/12 (WACA)
OTHER CITATION(S)
2PLR/1938/12 (WACA)
(1938) IV WACA PP. 76 – 77
LEX (1938) – IV WACA PP. 76-77
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., (NIGERIA)
PETRIDES, C.J., (GOLD COAST)
AND GRAHAM PAUL, J.
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BETWEEN:
BAFUNKE BRAITHWAITE
VICTORIA ADUKE — Plaintiffs-Respondents
AND
A. FOLARIN — Defendant-Appellant
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Interpleader Proceedings — Collusive dispositions of property in fraud of the grantor’s creditors — Legal effect of in Nigeria under 13 Eliz: Cap. 5, a Statute of General Application under section 14 of the Supreme Court Ordinance — How treated
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PRACTICE AND PROCEDURE ISSUE(S)
INTERPRETATION OF STATUTE:- Statute of General Application — How determined – Applicability of in Nigeria after repeal in England
INTERPRETATION OF STATUTE:- Repealed of a Statute of General Application in England — Status of in Nigeria — How determined
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ORIGINATING COURT(S)
APPEAL FROM JUDGMENT OF SUPREME COURT
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REPRESENTATION
E. J. Alex Taylor with A. Latunde Johnson — for Appellant
O. Alakija — for Respondent
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
Appeal allowed and case remitted to trial Court for Judge thereof to make findings of fact on the issue of fraud.
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MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, J.
The appellant in this matter is the defendant in Interpleader proceedings which were converted into a suit with the claimants as plaintiffs and the executing judgment creditor as defendant.
The Court below gave judgment in favour of the plaintiffs ordering the release of the attachment and against that judgment the defendant has appealed to this Court.
The grounds of appeal are as follows:
“1. The learned trial Judge was wrong in ordering the release of the property attached as he appeared to have been satisfied that the disposition of it to the plaintiffs was fraudulent.
2. The evidence does not support the findings of the learned trial Judge.”
The judgment of the Court below is quite short and as its precise terms are important its full text is quoted as follows:
“Notwithstanding the suspicion with which one must necessarily regard family disposition of property made or alleged at or near a time of financial embarrassment of the person disposing of the property to the disadvantage of his creditors, there being in this country no law invalidating such dispositions, I feel obliged on the evidence to order the release of the attachment herein, which I hereby do.”
“That there is no such law is, I venture to think, a hardship to which creditors are unnecessarily exposed.“
“The question of costs, however, being in my discretion, I allow the plaintiffs none. Each party will bear its own.”
It is clear from the terms of the judgment of the Court below that the Court below was under the impression that the law as to invalidating dispositions of property in fraud of the creditors of the grantor was in Nigeria different from the law of England, to the effect that there was no law in Nigeria invalidating such dispositions.
With respect to the learned Judge in the Court below we consider that he misdirected himself on this point. In our opinion the Statute 13 Elizabeth Cap. 5, which from its date until it was repealed in 1925 represented the law of England on the subject of collusive dispositions of property in fraud of the grantor’s creditors, is applicable to Nigeria under section 14 of the Supreme Court Ordinance.
The Statute in question is in our view a Statute of general application, applying as it does quite generally to ordinary affairs and dealings of men without any qualification or speciality restricting its application. The Statute was simply declaratory of the common law at the time. And the Statute was in force in England on 1st January, 1900. The repeal in 1925 does not affect Nigeria as the repealing act was subsequent to 1st January, 1900.
The Statute being in force in Nigeria it is then necessary to consider in the light of its provisions the evidence in this case. In considering whether a particular case comes within the Statute the Court must look at the whole of the circumstances and see whether the transaction was in fact carried out with the intent to defeat creditors (Re Holland 1902, 2 Ch. 360).
With these observations we think that the judgment of the Court below should be set aside and the suit remitted to the learned Judge who tried the suit for him to make findings of fact looking at the whole circumstances of the case in the light of the ruling on the case of Re Holland (supra) and to give judgment thereon. The judgment is set aside and the suit remitted accordingly.
The appellant has been successful in the appeal and is entitled to costs in this Court which we assess at twenty-eight guineas; costs in the Court below will abide the ultimate issue.