–
Y. MARTILDA DARL WILLIAMS
V.
MUMUNI AYINDE
In re E. J. ALEX TAYLOR
WEST AFRICAN COURT OF APPEAL HOLDEN AT LAGOS, NIGERIA
13TH DAY OF MAY, 1938
2PLR/1938/31 (WACA)
OTHER CITATION(S)
2PLR/1938/31 (WACA)
(1938) IV WACA P. 66
LEX (1938) – IV WACA P. 66
–
BEFORE THEIR LORDSHIPS:
KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, J.
–
BETWEEN:
Y. MARTILDA DARL WILLIAMS — Plaintiff
AND
MUMUNI AYINDE — Defendant-Respondent
In re E. J. ALEX TAYLOR — Applicant-Appellant
–
ORIGINATING COURT
APPEAL FROM ORDER OF SUPREME COURT.
–
REPRESENTATION
O. ALAKIJA — for Appellant
Respondent in person
–
ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR LAW — GARNISHEE PROCEEDINGS:- Money in custodia legis as the proceeds of a writ of Fi Fa — Nature of — How a third party creditor desiring to attach the money in the hands of the Court can do so — Whether must bring a new suit and cannot be done by a creditor bringing a motion in the original suit
–
DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held:
1. Any creditor of the respondent desiring to attach this money in the hands of the Court can do so only by bringing a suit against the respondent and therein taking the proper steps to do execution against money of the respondent in custodia legis.
2. It cannot be done by a creditor bringing a motion in the original suit to which he was not a party. It follows that the motion in which the Court below made the order which is the subject of this appeal was incompetent and should have been dismissed on that ground.
Appeal dismissed.
–
–
MAIN JUDGMENT
The following joint judgment was delivered:
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND GRAHAM PAUL, J.
The £7 7s. 0d. in question in this appeal is money in custodia legis as the proceeds of execution of a writ of Fi Fa issued on behalf of the respondent. It is therefore the money of the respondent. Any creditor of the respondent desiring to attach this money in the hands of the Court can do so only by bringing a suit against the respondent and therein taking the proper steps to do execution against money of the respondent in custodia legis.
It cannot be done by a creditor bringing a motion in the original suit to which he was not a party. It follows that the motion in which the Court below made the order which is the subject of this appeal was incompetent and should have been dismissed on that ground. The motion was dismissed by the Court below and the appeal against the order of dismissal must be and is dismissed by this Court without this Court expressing any view whatever as to the correctness or otherwise of the grounds given by the Court below for dismissing the motion.
The respondent is awarded costs assessed at half a guinea.