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P. B. PEDRO AND ANOTHER
V.
THE ATTORNEY-GENERAL
THE WEST AFRICAN COURT OF APPEAL, HOLDEN AT LAGOS, NIGERIA
4TH DAY OF MAY, 1950
2PLR/1950/35 (WACA)
OTHER CITATION(S)
2PLR/1950/35 (WACA)
(1950) XIII WACA PP. 53 – 54
LEX (1950) – XIII WACA 53 – 54
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BEFORE THEIR LORDSHIPS
BLACKALL, P.
AMES, Ag. C.J., NIGERIA
LEWEY, J.A.
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BETWEEN
1. P. B. PEDRO
2. O. IBARE-AKINSAN – Defendants-Appellants
AND
THE ATTORNEY-GENERAL – Plaintiff-Respondent
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ORIGINATING COURT(S)
Appeal from the Supreme Court, W.A.C.A. CIV. APP. 3180/50
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REPRESENTATION
Munis — for the Appellants
Amachree, Crown Counsel — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
DEBTOR AND CREDITOR – AUCTIONEER – BONDS AND SURETIES:- Bond required to be executed by an auctioneer under Regulation 183 of the Customs Regulations – Distinction from bond executed by surety under the Sales of Auctions Ordinance, s. 9 relating to the same matter – Where auctioneer granted further time to make payment – Effect of such extension of time on the liability of sureties upon a bond given under the Sales of Auctions Ordinance
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CASE SUMMARY
The appellants were the defendants.
The appellants were the sureties under a bond given by an auctioneer under section 9 of the Sales by Auction Ordinance. The auctioneer had not been called upon to enter into a bond as required by Regulation 183 of the Customs Regulations and, furthermore, had been granted an extension of time to pay the proceeds of sale.
Counsel for the appellants argued that this extension of time for payment and failure to take the bond under the Customs Regulations absolved the appellants from their liabilities as sureties under a bond given under section 9 of the Sales by Auctions Ordinance.
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DECISION(S) OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the Appeal):
1. The two bonds were entirely separate and distinct.
2. The bond under section 9 of the Sales by Auction Ordinance is different from a bond to secure re-payment of a sum of money due by a debtor. The bond is to secure the compliance of the Auctioneer to all and every provision of Cap. 203 including that relating to payment under section 23(2).
3. Under section 23(2), any extension of time for payment between the auctioneer and the seller could not affect the liabilities of the sureties under their bond. Rather, the sub-section means that unless the auctioneer and the seller agree beforehand that he need not pay the money within ten days he must do so, and in either case, the liability of the auctioneer’s surety remains.
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MAIN JUDGMENT
The following Judgment was delivered:
BLACKALL, P.
Some points of interest were raised in this appeal. Mr. Munis, or the appellants, in the first place submitted that in view of Regulation 183 of the Customs Regulations, a bond should have been entered into by the auctioneer under those Regulations.
I am inclined to think it should have been. That Regulation is enacted for the better protection of H.M’s Customs, for the value of goods might well be a large amount, and it is clearly desirable that a bond to cover them should be entered into. The fact that this was not done, however, does not appear to me to relieve sureties under a bond made under the Sales of Auctions Ordinance, as the bonds are quite distinct from one another.
Mr. Munis also raised a point with reference to the auctioneer being given further time for payment. This might be of substance if this were a bond to secure re-payment of a sum of money due by a debtor, but it was not. The bond was made under section 9 of the Sales by Auction Ordinance, and when we look at the bond we find that the condition is that the auctioneer shall conform to all and every provision of Cap. 203. Now, one of the provisions of the Ordinance is that the auctioneer shall, unless it be agreed otherwise between him and the seller, be liable to pay within ten days. Mr. Munis suggested that this qualification is relevant as the Comptroller extended the time for payment, but I do not think section 23(2) should be construed in that way. In my opinion the sub-section means that unless the auctioneer and the seller agree beforehand that he need not pay the money within ten days he must do so, but that is not what happened in this case.
It was further submitted that the statement of claim, because it referred to the auctioneer’s default, indicates that the bond was to secure payment of the amount due by him. Here again I cannot agree. When action is taken on a bond under the Sales by Auction Ordinance it must be shown that the auctioneer has failed to conform with the Ordinance, and in order to do this the plaintiff set out the manner in which he failed to do, viz. that he did not pay up the money in time. I therefore agree with the learned Crown Counsel that this is a bond to ensure that the auctioneer carries out his duties, and if the auctioneer does not, his surety becomes liable.
The appeal in my view, should be dismissed.
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C. G. AMES, Ag. C. J. (NIGERIA)
I concur.
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ARTHUR LEWEY, J.A.
I concur.
Appeal dismissed.
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