Alfa Arowosaye V. Felix Oluwasegun Ogedengbe & Anor. (2008)

LawGlobal-Hub Lead Judgment Report

CHIMA CENTUS NWEZE, J.C.A.

The second respondent sued the first respondent for the recovery of a banking facility it granted to his company. It obtained judgment. That was in suit number KWS/240/94.

Subsequently, upon a motion ex parte filed by Kayode Oyende Esq. on behalf of the second respondent, creditor to the first respondent’s companies, the High Court of Kwara State (coram: Folashade Oju J) ordered the disposal of the property of the first respondent– by public auction – to satisfy the judgment debt.

Pursuant to that order, the Sheriffs of the court conducted a public auction on 6/2/1998. The appellant was the highest bidder.

The first respondent resisted the appellant’s attempt to take possession of the building [subject of the auction sale]. On 11/8/1998, he originated a suit at the lower court. He beseeched the court to favour him with an order setting aside the writ of attachment, the auction notice, warrant of possession and sale of his said building.

Upon application, the trial High Court, in a considered ruling, struck out the Sheriffs who were originally the second – fourth defendants on the ground that they were sued three months after the accrual of the cause of action and thus protected by the Public Officers’ Protection Law.

It, however, ruled that the suit was competent against the remaining defendants: the appellant and the second respondent herein.

On May 18, 2006, almost seven years after the ruling, and eight years after the suit was commenced, the appellant, by way of motion, moved the lower court to dismiss the suit for being statute-barred. Folayan J heard the application and dismissed it. This appeal is against that ruling.

Learned counsel for the appellant formulated the following issues for determination:

(1)Whether the provision of Order 4 Rule 1(1) and (2) of the Kwara State (Civil Procedure) Rules, 2005 could be called in aid to regard a breach of Section 46 of the Sheriffs & Civil Process Law of Kwara State, CAP 146 as mere irregularity to confer jurisdiction in (sic) a Court.

(2)Whether in the circumstance of this case (sic) issue of jurisdiction raised (sic) for non-compliance with a mandatory statute can constitute a waiver of statute of Limitation.

(3) If the answer to issues 1 & 2 are in the negative, was the trial court right in construing the word “may” as used in section 46 of the Sheriffs and Civil Process Law of Kwara State, CAP 146, to be in permissive sense to allow filing of the suit outside the prescribed time limit.

The first respondent formulated two issues, namely:

(1) Whether the Sheriffs and Civil Process Law (supra) is of any relevance to the first respondent’s suits. If so, whether any of its provisions can bind the suit so as to make it statute-barred.