International Merchant Bank Plc & Anor V. Samba Petroleum Company Limited (2000)

LawGlobal-Hub Lead Judgment Report

ODUYEMI, J.C.A.

This is an appeal from the judgment of the High Court of Justice of Niger State delivered by the Suleja Division in Suit No. NSHS/SD/IM/2M & 34/93 on 18th February, 1994.

The 1st appellant is a Commercial Bank while the 2nd appellant is a Licensed Auctioneer engaged by the 1st appellant for the purpose of carrying out the sale by public auction of the plot of land and filling station of the respondent (a customer of the 1st appellant) situate along Kaduna – Lokoja Road, Suleja in Niger State.

The proceedings in the Niger State High Court (herein referred to as the lower court) which eventually led to the judgment the subject matter of this appeal commenced with a motion – Ex-parte by the respondent filed before the lower court on 22nd February, 1993.

The application which was supported by an affidavit sought the order of the lower court halting the advertised sale of the petrol filling station of the respondent billed for 10.30 a.m. on 22nd February, 1993.

The lower court made the order sought for on that day and adjourned the motion on notice to 3rd March, 1993 for hearing. Copies of the Order ex-parte were served on both 1st and 2nd appellants on the same day.

On 15th November, 1993, respondent filed an application in the lower court (p.162 of the Records) in the following terms:-

“Praying for the determination of the following issues:-

Whether the advertisement for sale by Public auction of the applicant’s property located at No. 12, Kaduna – Lokoja Road, Suleja in the New Nigerian Newspaper of 19th February, 1993 and the purported sale of the property on 22/2/93 to one Alhaji Danjuma are valid or void in law.”

Arguments were advanced by Counsel on both sides in respect of the application.

In a considered ruling delivered on 18th February, 1994, the learned trial Judge determined the issues as follows:-

(i) As the requirement of S. 19 of The Auctioneers Law, Cap. 10 Laws of Northern Nigeria, 1963 for seven days notice between the publication of the Notice of sale and a sale by auction relating to land was not complied with, the advertisement of 19th February, 1993 for the sale by public auction of the applicant’s property is void;

(ii) There was in fact no sale of the property of the applicant;

(iii) The purported sale of the applicant’s property while two suits concerning the same subject matter were still pending in the High Court of Kaduna State was contrary to the doctrine of “lis pendens” and so void.