Supreme Court
Action No. 70 of 1981
9th February, 1982
Moe, CJ.

Mr. Derek Courtenay, S. C. for the Plaintiff
Mr. Denys Barrow, for the Claimant

Writ of Execution - Whether Claimant has right to possession by virtue of bill of sale - Sections 2(3) and 27 of Bills of Sale Ordinance, Chapter 210 - Claimant had to take physical possession of chattels to give effect to Bill of Sale - Effect of failure by Claimant to take physical possession of chattels - Bills of Sale Ordinance.

J U D G M E N T

On the 25th August, 1981 certain goods and chattels were seized under and by virtue of a Writ of Execution issued on the 17th June, 1981 in pursuance of judgment obtained by the Plaintiff against the Defendant on the 14th April, 1981.

On the 21st November, 1981 the Development Finance Corporation gave notice of its claim (a) to hold the said goods and chattels under a bill of sale; (b) that it had already seized the said goods under the bill of sale. The Development Finance Corporation claims the right to possession of the goods and chattels and requests delivery of them by the Registrar. The Plaintiff disputes the title of the Development Finance Corporation to the goods.

In this matter, I am required to determine whether at the time of the execution of the process i.e. on the 25th August, 1981, the Claimant had the right to possession of the goods and chattels concerned.

Both the Claimant and Judgment Creditor are agreed that the Development Finance Corporation had a duly registered bill of sale on the goods which expired on the 16th February, 1981. That on the 11th March, 1980 the said goods had been seized under powers of the bill of sale. That no further action was taken by Development Finance Corporation with respect to goods until 9th November, 1981 when a subsequent bill of sale was executed.

The Claimant submits that the seizure by the Development Finance Corporation during the term of validity of the bill of sale vested the possession in the goods on Development Finance Corporation and that possession continues until there is satisfaction of the amount for which the bill of sale was granted.

The Judgment Creditor contends (1) that the seizure on the 11th March, 1980 does not go on in perpetuity; (2) that on the 14th April, 1981, the date on which judgment was entered, the effect of the bill of sale had expired i.e. the bill of sale had expired on the 16th February, 1981 and (3) from the date the Writ of Execution was delivered to the Registrar, the goods and chattels were bound in satisfaction of the judgment.

The answer to the question whether the Claimant had the right to possession on the 25th August, 1981 depends in my view firstly on what actually happened at the time of the seizure. Did the Claimant, the Development Finance Corporation in fact take possession of the goods under the bill of sale or not?

Along with the facts agreed upon that after seizure there was no further action by Development Finance Corporation, the evidence before me was such that I found that the goods and chattels on the occasion of the seizure on the 11th March, 1980 remained on the premises of the Defendant, the Judgment Debtor. I bore in mind section 27 of the Bills of Sale Ordinance, CAP 210 which provides: "All personal chattels seized or of which possession is taken -- under and by virtue of a bill of sale -- shall remain on the premises where they were so seized or taken possession of, and shall not be removed or sold until after the expiration of five clear days from the day they were so seized or so taken possession of ". Even allowing for five days during which the goods and chattels would have had to remain on the premises of the Judgment Debtor, I found that the goods and chattels, thereafter, continued to remain on the premises and were there on the occasion of the seizure on the 25th August, 1981.

I applied the principle stated in Ex parte Saffery 16 Ch. D. 668 and approved in Sales Agency Ltd. v Elite Theatres [1917] 2 K.B. 164 that there must be something done which, in the eyes of everyone who sees the goods or is concerned in the matter, plainly takes the goods out of the apparent possession of the Judgment Debtor.

I referred also to section 2(3) of the Bills of Sale Ordinance which provides:- "Personal chattels shall be deemed to be in the 'apparent possession' of the person making or giving a bill of sale, so long as they remain or are in or upon any house, mill, warehouse, building, works, yard, land or other premises occupied by him or are used and enjoyed by him in any place whatsoever, notwithstanding that formal possession thereof has been taken by or given to any other person." I therefore held that although the Claimant had formally seized the goods and chattels on the 11th March, 1980 the Claimant's right to possession was not complete. There was no sufficient taking of possession to perfect the Claimant's title and the right to possession still depended on the bill of sale. The bill of sale became void on 16th February, 1981.

I found that on the 25th August, 1981 the goods and chattels concerned were in the possession or apparent possession of the Judgment Debtor and hold that the seizure by the Registrar on that date is in order. The claim by the Development Finance Corporation is not allowed.

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