Alhaji Baba M. Saleh V. Alhaji Shetima Monguno & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

TABAI, J.S.C.

The process culminating in this appeal started 24 years ago when the 1st respondent, as plaintiff filed suit No. M1152/82 against the appellant as defendant at the Borno State High Court. The action was under the undefended list procedure and he obtained judgment for the sum of N1,412,926.00 plus N5,000.00 costs on the 16/12/82. The appellant filed an appeal. While he pursued the appeal, he did not seek and obtain an order for stay of execution.

The 1st respondent made some efforts to recover the judgment debt and as at 26/1/84, he had recovered only N280,000.00 from the movable properties of the appellant leaving a balance of about N1,137,986.00. On the 26/1/84 therefore, he filed a motion for leave to attach three specific immovable properties of the appellant in Maiduguri covered by certificates of occupancy Nos. NE 1776, NE 1777 and NE 1828. And on the 29/2/84 the trial Chief Judge granted the leave. In purported execution of the aforesaid leave/order of the 29/2/84, the 2nd respondent, (Deputy Sheriff High Court, Maiduguri), at the instance and as agent of the 1st respondent, sold not only the 3 properties specified in the order but also 4 other properties of the appellant not covered by the leave/order.

By the judgment on the 27/1/86, the Court of Appeal allowed the appeal and the judgment of the 16/12/82 was set aside for being a nullity. In the wake of this nullification the 1st respondent filed a fresh action in suit No. M/36/86. On the application by the defendant/applicant/appellant the trial court set aside the order of sale of 29/2/84 on the 15/7/86.

And on the 25/8/87, this motion culminating in this appeal was filed. The motion prayed for an order or orders:

(A) Directing the 3rd – 8th respondents/any of them to and deliver up possession of the under listed three houses covered by certificate of occupancy Nos. NE 1776, NE 1777 and NE 1828 sold at an auction by the 2nd respondent at the instance of the 1st respondent and purchased severally by the 3rd – 8th respondents pursuant to the order of this Honourable Court in the suit herein on the 29th February, 1984 which order has now been set aside by the order of this Honourable Court of 15th July, 1986 thereby rendering the sale of the said houses null and void.

1. One two-storey building situate at Buba Gana Road, Gamboru Ward, Maiduguri.
2. Two storey-buildings in one compound situate at Railway Street, Gamboru Ward, Maiduguri.
3. One house situated at No. 29 Yaskuma Street, Gamboru Ward, Maiduguri.

(B) Also directing the 3rd – 8th respondents/any of them to quit and deliver up possession of the under listed houses unlawfully sold at the same auction by the 2nd respondent at the instance of the 1st respondent and purchased severally by the 3rd – 8th respondents.

(1) One house situate at Lawan Usman Street, Gamboru Ward, near Alhaji Ali Mohammed’s house, Maiduguri.

(2) One two-storey building situated along Airport Road, Bulumkutu Ward, Maiduguri.

(3) One house situated at No. 13 Musa Dagash Street, Gamboru Ward, Maiduguri.

(4) A piece of land measuring 100ft x 50ft at Bulumkutu Ward, Maiduguri purchased by the 8th respondent.

The motion was supported by an affidavit of 15 paragraphs. No counter-affidavit was immediately filed by any of the respondents. On the 16th of February, 1988 the trial Chief Judge decided that the motion would not be taken until the fresh suit filed by the 1st respondent against the appellant had been dispensed with (see page 10 of the record). Nearly 10 years after that is, on the 21st of February, 1997 the 3rd respondent filed a 9 paragraph counter-affidavit. The motion was finally heard on the 26th of February, 1997. In a considered ruling on the 7th of April 1997, the trial court dismissed the application. Dissatisfied with that decision the appellant appealed to the Court of Appeal.

By its judgment on the 26th of June 2001, the appeal was dismissed. Still dissatisfied, the defendant/applicant/appellant has come on further appeal to this court. Before this court the appellant, 3rd, 4th and 7th respondents filed and exchanged their briefs of argument. The appellant’s brief of argument was prepared by J. B. Daudu, SAN. Mr. M. A. Adamu prepared two separate briefs for the 3rd and 7th respondents. And Nankham Ayuba Dammo prepared the brief of the 4th respondent. The 1st, 2nd, 5th, 6th and 8th respondents did not filed any brief. In the appellant’s brief of argument, Mr. J. B. Daudu SAN formulated seven issues for determination. The issues were adopted in the briefs of the 3rd, 4th and 7th respondents. The issues as formulated by Daudu, SAN are as follows:-

(1) Whether the Court of Appeal was right in affirming the decision of the Borno State High Court that steps taken by the latter in enforcing her judgment which was later adjudged a nullity by the former and which had led to the void sale of appellant’s houses could not be reversed by an application brought by way of a motion on notice as the appellant did but by a writ of summons

(2) Assuming but not conceding that the action to reverse the unlawful sale of his properties was initiated by wrong form and procedure i.e. by motion on notice, did this step divest the Borno State High Court, as affirmed by the Court of Appeal, of jurisdiction to resolve and reverse the injustice perpetrated by the High Court or was it an irregularity that was cured by the participation of the respondents in the proceedings and by the saving provisions of the Borno State High Court Rules

(3) Whether the court below was correct in law when it held that 3rd parties had acquired interest from void sale of appellant’s property by the Borno State High Court and whether that fact had any bearing on how a consequential action for the reversal of the void steps hitherto taken could be initiated

(4) Whether the court below was correct in law in affirming the decision of Borno State High Court that the complaint of the appellant to the effect that some of his houses not listed among those for which an order had been given for leave to sell them by way of auction, subsequently sold by the 2nd respondent amounted only to an irregularity which could have been cured had the application been brought within 21 days as prescribed by sections 47 and 48 of the Sheriffs and Civil Process Act

(5) Whether the sale of the appellant’s property pursuant to a judgment that was eventually declared null and void by the Court of Appeal could be described as an irregularity and incapable of being reversed except by recourse to the specific provisions of sections 47 and 48 of the Sheriffs and Civil Process Act

(6) Whether contrary to the decision of the court below affirming that of the trial court, the fundamental rights of the appellant was not grievously breached by the fact that the trial court suo motu stayed the application leading to this appeal for 10 years while he dealt with suit No. M/36/86 filed by the 1st respondent as a substitute to the proceeding that was adjudged a nullity

(7) Whether the Court of Appeal was correct in the way and manner it affirmed the decision of the Borno State High Court in the way and manner the appellant’s application was dealt with, particularly with the excuse provided by the court below that the appellant did not obtain an order to set aside the void sale of his properties

I shall now commence deliberation on this appeal by first considering the last four issues. In substance, they collectively raise the fundamental legal and constitutional issues of the legality of the sales, whether the 3rd – 8th respondents/third parties acquired absolute and indefeasible title in the properties and whether in the course of the proceedings at the trial court, the appellant’s fundamental rights were violated.

On these issues, the submissions of learned senior counsel for the appellant Mr. J. B. Daudu are firstly, that the purported auction sales based on a null judgment are equally void and non-existent in the eyes of the law. Consequently, he argued, the 3rd – 8th respondents, referred to by the two lower courts as bonafide purchasers bought nothing as the judgment that was purportedly being enforced was non-existent. It was his submission that the concept of a bonafide purchaser for value is only applicable when there is a sale properly so called in the eyes of the law. He further argued on these issues, that sections 47 and 48 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990 apply only to situations of mere irregularities and not to the nullity situation as exists in this case.

For these submissions he relied on Alhaji Labaran Nakyauta v. Alhaji Ibrahim Maikima & Anor. (1977) All NLR (Reprint) 215 at 225/226, (1977) 6 SC 51; Leedo Presidential Motel Ltd. v. Bank of the North Ltd. & Anor. (1998) 10 NWLR (Pt.570) 353 at 381-383 amongst others.

The arguments of M. A. Adamu in the briefs of the 3rd and 7th respondents were hardly comprehensible. The substance of his arguments on these issues, from what I can understand, is that the sale of the properties to the 3rd – 8th respondents with or without the leave of court was valid and transferred absolute title to them. With respect to those which sale was without the leave of court, he submitted that the sale was a mere irregularity and by virtue of the provisions of sections 47 and 48 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria the sale was deemed to become absolute since there was no application to set aside same within 21 days. It was his further submission that the principles in Alhaji Labaran Nakyauta v. Alhaji Ibrahim Maikima & Anor. (supra) and Leedo Presidential Motel Ltd. v. Bank of the North Ltd. & Anor. (supra) do not apply to the facts and circumstances of this case.

In his arguments in the 4th respondent’s brief, N. A. Dammo also submitted that the complaint of the appellant about the sale of the properties including those for which there was no leave of court are complaints of irregularities and are therefore statute barred by virtue of the provisions of sections 47 and 48 of the Sheriffs and Civil Process Act. He argued that the nullification of the judgment notwithstanding, there must be a specific order setting aside the sale to the 3rd – 8th respondents for such sale to be reversed. Finally on the issues, learned counsel for the 4th respondent submitted that Leedo Presidential Motel Ltd. v. Bank of the North (supra), Adewumi v. Societe Generale Bank Ltd. (1998) 6 NWLR (Pt.552) 154 and Alhaji Labaran Nakyautu v. Alhaji Ibrahim Maikama & Anor. (supra) are distinguishable and do not therefore apply to this case. On the issue of fair hearing counsel referred to Military Governor of Imo State & Anor. v. Chief B. A. E. Nwauwa (1997) 2 NWLR (Pt.490) 675 at 708 and Okafor v. A.-G., Anambra State (1991) 6 NWLR (Pt.200) 659 and submitted that the appellant’s right to fair hearing was not breached. He urged in conclusion that the appeal be dismissed.

As a prelude to the resolution of these issues, it is pertinent to highlight a fundamental and crucial distinction between the two sets of properties over which the parties have been enmeshed in legal battle for nearly 24 years. The significance of the distinction which is clearly spelt out in reliefs (A) and (B) of the motion paper is in respect of those three specific properties covered by certificates of occupancy No. NE 1776, NE 1777 and NE 1828 for which attachment and sale the trial court granted leave on the 29/2/84. (See pages 11-12 at the record of appeal), and to those four properties for which attachment and sale, no leave of the court was sought and none granted. I shall now consider the issues raised in the light of these distinctions.

On the sale of the properties in relief (A) of the motion, the submission of counsel for the respondents is in my view, unassailable. By the motion on notice of the 26/1/84, the 1st respondent/judgment creditor sought the leave and authority of the trial court to attach and sell the three specific properties of the appellant on relief ‘A’ of the motion. There is no indication on the record that the defendant/appellant contested the application. And on the 29/2/84 the trial court granted the leave/order for their sale in satisfaction of the balance of the judgment debt of N1,137,986.00 and they were accordingly sold. Sections 47 and 48 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990 (or of the Sheriffs and Civil Process Law, Cap. 123, Laws of Northern Nigeria) on which the respondents and the courts below relied provide:

47. “At any time within 21 days from the date of the sale of any immovable property, application may be made to the court to set aside the sale on the ground of any material irregularity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the court that he has sustained substantial injury by reason of such irregularity.
48. If no such application as mentioned in section 47 of this Act is made, the sale shall be deemed absolute. If such application be made and the objection be disallowed the court shall make an order confirming the sale; and in like manner, if the objection be allowed the court shall make an order setting aside the sale for irregularity.”

With particular reference to the three properties comprised in relief (A) therefore the sale in respect thereof comes squarely within the provisions of sections 47 and 48 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation, 1990. I am in total agreement with the reasoning and conclusion of the courts below therefore that by reason of the provisions thereof, the auction sale not having been challenged within 21 days from the date of sale, was deemed to become absolute and effectively transferred title in the three properties to whoever of the 3rd – 8th respondents that bought them. In the event, I hold that there is no substance in the complaint on the properties listed in relief (A) of the motion paper. I hold also that the principle in Leedo Presidential Motel Ltd. v. Bank of the North Ltd. & Anor. (supra) cited by appellant’s counsel does not apply. I now come to the appellant’s complaint about the four properties mentioned in relief (B) of the motion paper. On the 26/2/ 97 when this motion was argued at the trial court, Mr. Osho, learned counsel for the defendant/applicant/appellant, submitted that the purported sale of these properties was without the leave of court and so without any legal or constitutional authority. (See page 21 lines 8-13 of the record.) And in its ruling the court noted the submission as follows:-

“As regards the sale of the houses not mentioned in the orders made by Justice Kalu Anyah in his ruling of 29th February, 1984. Mr. Osho submitted that the sale of such houses were nullity as no leave of the court was obtained to attach and sell the said houses …” (See page 28 lines 20-24 of the record).

Surprisingly, the trial court failed to make any pronouncement on this all crucial issue.

This complaint about the properties in prayer (B) raises three fundamental constitutional and legal issues. Firstly, since there was no motion on notice for leave for the attachment and sale of the four properties there was no court order for their sale. Secondly, there was no notice to the appellant when his four properties were purportedly sold behind his back. Thirdly, the allegation which was not denied by the 1st and 2nd respondents established some evidence of collusion and fraud. Yet the trial court begged the question and simply proceeded on the assumption that the leave granted for the attachment and sale of the three specific properties in prayer (A) was also sufficient authority for the sale of the properties in prayer (“B”) and that their sale was a mere irregularity within the meaning of sections 47 and 48 of the Sheriffs and Civil Process Act, Cap. 407, Laws of the Federation of Nigeria, 1990.

Regrettably, the Court of Appeal persevered in the same error. The court, per Obadina, JCA, reproduced the appellant’s complaint about the properties not covered by the order of court of the 29/2/84 at pages 17-18 of its judgment and reasoned as follows:-

“From the provisions of paragraphs 5, 6 and 7 of the affidavit in support of the motion, the appellant is certainly complaining about the irregularity in the conduct of the sale of his properties. He complained that some of the properties sold were not covered by the order of court authorising the sale of the properties by public auction. It seems to me when a judgment debtor whose properties were ordered to be sold is complaining that some of the properties sold were not covered by the order of court, he is certainly complaining of irregularity in the conduct of the sale of the properties. In that regard, it seems to me the appellant ought to have brought an application for order setting aside the sale to the 3rd to 8th respondents within twenty one (21) days from the date of the sale of his immovable properties in question within the provisions of section 47 of the Sheriffs and Civil Process Law, Cap. 123 of the Laws of Northern Nigeria, 1963. I am also of the view that since the appellant had failed to bring any application to set aside the sale within 21 days of the sale, the sale has become absolute within the provision of section 48 of the Sheriffs and Civil Process Law.”

(See page 167 of the record)

Thus the court of appeal failed to appreciate the fundamental the sale of the appellant’s defects in the sale of the appellant’s properties without an application properties without an application on notice to and authority of the court when it wholly endorsed the reasoning of the trial court and purportedly invoked the provisions of sections 47 and 48 of the Sheriffs and Civil Process Law without reference to the Judgment (Enforcement) Rules made there under and more importantly, oblivious of the appellant’s fundamental rights guaranteed in Chapter IV of the 1999 Constitution. Order IV rule 16(1)-(3) of the Judgment (Enforcement) Rules provides:-

“16(1) When a judgment creditor desires a writ of attachment and sale to be issued against the immovable property of the judgment debtor he shall apply to the High Court.

The application shall be supported by evidence showing:

(d) what steps, if any, have already been taken to enforce the judgment and with what effect; and what sum now remain due under the judgment; and that no movable property of the judgment debtor, or none sufficient to satisfy the judgment debt, can with reasonable diligence be found.

If upon the hearing of the application it appears to the court that the writ of attachment and sale may lawfully issue against the immovable property, the court shall make an order accordingly.”

It is clear from the aforementioned provisions of the Sheriffs and Civil Process Act or Law and the Judgment (Enforcement) Rules made there under that the attachment and sale of the immovable property of a judgment debtor must be by leave or order of court made upon an application. And although both the Act or Law and the Judgment (Enforcement) Rules are silent on the question of whether the application can be made ex parte or on notice, it has since been settled by this court in Leedo Presidential Motel Ltd. v. Bank of the North Ltd. (supra). There the judgment creditor made application ex parte to the trial court for the attachment and sale of the judgment debtor’s immovable properties. The application was granted and the properties accordingly sold to the 2nd respondent. The appeal before the Court of Appeal was dismissed. On further appeal, this court endorsed the principle in Bayero v. Federal Mortgage Bank of Nigeria Ltd. (1998) 2 NWLR (Pt. 538) 509; Osunkwo v. Ugbogbo (1966) NMLR 184 and Opubor v. Demiruru (1961) All NLR 436 and held that such an application must be on notice (to the judgment debtor) because of its crucial nature involving a determination of the judgment debtor’s constitutional rights. The court, per Ogundare, JSC, at pages 378-379 stated:-

“Although section 44 of the Sheriffs and Civil Process Law is silent as to how an application is to be made to the court by a judgment creditor for a writ of execution against the immovable property of the judgment-debtor, it is my respectful view that, as there are many things the court has to satisfy itself about, it is only but fair and just that the judgment-debtor be put on notice of the application. Order IV rule 16(2) lays down the evidence to be produced. From the nature of the evidence and upon which the court must satisfy itself before a writ of attachment and sale is ordered to issue, the civil rights and obligations of the judgment-debtor must obviously come up for determination. I cannot see how such a determination can be made behind the back of the judgment-debtor without breaching his constitutional right to fair hearing under section 33(1) of the Constitution…”

And Iguh, JSC at page 390 restated the principle with emphasis thus:

“In my view, it cannot amount to any other thing else than a gross abuse and breach of the rules of natural justice for a writ of execution or attachment to issue against the immovable property of judgment debtor without affording him an opportunity to be heard on such an exceptionally grievous and sensitive issue.”

See the reaction of Kutigi, JSC at page 384 of the report also. In the instant case, if the proceeds from the sale of the three properties in relief (A) specified in the court order of 29/2/84 did not fully satisfy the balance of the judgment debt, the 1st respondent, Alhaji Shettima Monguno, was at liberty to file another application on notice for the attachment and sale of the four properties in relief (B). That would have given the appellant the opportunity to contest the application particularly in view of the indications in the record that at the time of the attachment and sale of the properties, the 1st respondent had recovered as much as N830,000.00 from him. (See the statement of the appellant at page 2 of his brief filed at the court below at page 45 of the record and its concession in the 7th respondent’s brief at the court below at page 87 of the record.) The trial court would have had the opportunity to examine the merits and demerits of the application. But he concealed his intention from both the court and the appellant and acting in collusion with the 2nd respondent, surreptitiously sold the properties to some of the 3rd – 8th respondents.

What then is the effect of the sale of these properties in relief (B) of the motion paper. In Leedo Presidential Motel Ltd. v. Bank of the North Ltd. in circumstances far less reprehensible than those in the instant case, this court held the attachment and sale of the appellant’s property to the 2nd respondent null and void and directed the immediate restoration of the property by the 2nd respondent to the appellant. In the face of the facts and circumstances of this case, I have no alternative than to hold that the attachment and sale of the appellant’s four properties specified in relief (B) to the 3rd – 8th respondents was illegal, unconstitutional null and void and consequently that the purported attachment and sale passed no title in any of the four properties to whoever of the 3rd – 8th respondents that bought any of them. He is accordingly entitled to the immediate restoration of the properties to him. The Court of Appeal was therefore clearly in error to regard the unauthorised illegal and unconstitutional attachment and sale of these properties as mere irregularity within the meaning at sections 47 and 48 of the Sheriffs and Civil Process Law, Cap. 123, Laws of Northern Nigeria, 1963. In conclusion on this issue, I hold that there is merit in the appellant’s complaint with respect to the properties listed in relief (B) of the motion paper. The next issue is whether by virtue of the motion which is the subject matter of this appeal, the appellant can be granted redress for any wrong he might have suffered in the purported sale of his properties. The court below, affirming the decision of the trial court, held that initiating the action by motion instead of a writ of summons rendered the proceedings incompetent and denied the trial court of any jurisdiction in view of the provisions of Order 1 rule 2(1) and (3) of the Borno State High Court (Civil Procedure) Rules, 1988. The submission of J. B. Daudu, SAN is that since the purported attachment and sale of the properties was null and void, title in the properties never passed to the 3rd – 8th purchasers respondents and that the relief sought was merely akin to seeking a consequential order to reverse the void acts. He submitted that the court had jurisdiction to entertain the motion and grant the relief in view of the provision of section 4 of the High Court (Civil Procedure) Rules Law of Borno State and Order 46 rule 1 of the Rules. Assuming that initiating the action by motion was a wrong procedure, learned senior counsel argued, it was not such a wrong procedure that breached the rules of fair hearing and therefore curable under Order 2 rule 1(i) of the High Court Rules.

Learned counsel for the 3rd and 7th respondents submitted, on the other hand, that Rules of court are binding on the parties and that a party cannot be heard to complain about their application, save, it can be established that their strict application had led to miscarriage of justice. He relied on Dr. Oladipo Maja v. Mr. Waster Samouris (2002) NSCQLR Vol. 546 at 549; (2002) 7 NWLR (Pt.765) 78; City Engineering (Nig.) Ltd. v. Nigerian Airports Authority (1999) 70 LRCN 2121 at 2127; (1999) 11 NWLR (Pt.625) 76. It was his submission that since the 3rd – 8th respondents were not parties in the suit an action which seeks reliefs against them cannot be commenced by way of the motion. He relied on Okomu Oil Palm Co. Ltd. v. Iserhienrhien (2001) NSCQLR Vol. 5 page 802 at 805; (2001) 6 NWLR (Pt. 710) 660. Learned counsel for the 4th respondent in his brief argued that the reliefs being claimed were in the guise of a declaration of title predicated upon re-possession and the action ought, therefore, to have been commenced by a writ of summons and that commencing same by a motion rendered it incompetent. He submitted that Leedo Presidential Motel Ltd. case was distinguishable and therefore not applicable.

I shall deliberate on this issue by first reproducing Order 1 rule 2(1) and (3) of the Borno State High Court (Civil Procedure) Rules on which the lower courts and counsel for the respondents relied. Rule 2(1) provides:

“Subject to any provision of an Act or of these rules by virtue of which any proceedings are expressly required to be begun otherwise than by writ the following proceeding shall be begun by writ, that is to say proceedings:

(a) in which a claim is made by a plaintiff for any relief or remedy for any tort or civil wrong;

(b) in which a claim made by the plaintiff is based on an allegation of fraud;

(c) in which a claim is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a law or independently of any contract or any such provision) or where the damages claimed consist of or include damages in respect of death of any person or in respect of personal injuries to any person or in respect of damage to any property;

(d) in which a claim is made by the plaintiff in respect of infringement of a patent, trade mark, copy-right, intellectual or any other proprietary interest of whatever kind;

(e) in which a claim for a declaration is made by an interested person.

Rule 2(3):

“Proceedings may be commenced by originating motion or petition where by these rules or under any written law the proceedings in question are required or authorised to be so begun but not otherwise.”

In the motion under consideration which I have reproduced above, the reliefs are claimed against the 3rd – 8th respondents who, however, are not parties in suit No. M/153/82. The appellant seeks an order or orders directing them to deliver up possession of the properties specified therein. It is clearly a claim for relief or remedy for tort or other civil wrong he has suffered and it comes squarely within rule2 (1)(a) above. There is no doubt therefore that in so far as the commencement of an action is concerned the motion did not comply with the provisions of Order 1 rule 2(1) of the Borno State High Court (Civil Procedure) Rules, 1988.

The crucial question however is whether, having regard to the facts and circumstances of this case, it was such non-compliance that justified the dismissal of the motion Mr. Daudu, SAN argued that the reliefs can be granted by recourse to section 4 of the Borno State High Court (Civil Procedure) Rules and Orders 46 and 2 Rule 1(1) of the Borno State High Court (Civil Procedure) Rules. Section 4 of Borno State High Court (Civil Procedure) Rules Law says:-

“4. Where a matter in respect of which no provisions or adequate provisions are made in the Rules, the court shall adopt such procedure as will in its view do substantial justice between the parties concerned.”

Order 46 of the High Court Rules states:-

“Subject to particular rules, the court may in all causes and matters make any order, which it considers necessary for doing justice, whether such order has been expressly asked for by the person entitled to the benefit of the order or not.”

And Order 2 rules 1(1) of the Rules provides:

“Where in the beginning or purporting to begin any proceeding or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure may be treated as an irregularity and if so treated, will not nullify the proceedings or any document, judgment or order therein.”

Section 4 of the Borno State High Court (Civil Procedure) Rules Law does not appear to me to fully answer the question under consideration, since Order 1 rule 2(1) provides for the mode by which the appellant can claim the relief or remedy for the civil wrong inflicted on him. Similarly Order 46 does not, in my view, adequately answer the question since its applicability is subject to particular rules such as Order 1 rule 2(1) of the High Court Rules.

But the clear spirit of these provisions and Order 2 rule 1(1) is that, in the application of the High Court Rules, the courts are enjoined to ensure substantial justice between parties. After all, law including Rules of court is not and should not be regarded as an end in itself; it is only a means to an end which is justice. The courts will not therefore insist on strict compliance with any particular rules of court if such strict application would inflict outright injustice.

That has been the focus of this court over the years. In Oloba v. Akereja (1988) 2 NSCC 120 at 136; (1988) 3 NWLR (Pt. 84) 508, this court, per Oputa, JSC, emphasised the very purpose of rules of court as follows:-

“All rules of court are made in aid of justice. That being so, the interest of justice will have to be given paramountcy over any rule of compliance which will lead to outright injustice.”

Thus in its resolve to construe statutes and rules of court only for the ends of justice, this court has articulated in a number of cases that whenever a plaintiff establishes a wrong that has been inflicted on him by a defendant, he should be granted a remedy inspite of defects and other inadequacies as to form and contents of the document by which he initiates and sets out his claim. This was eloquently demonstrated in the earlier case of Aliu Bello & 13 Others v. Attorney General of Oyo State (1986) 5 NWLR (Pt. 45) 828. In that case, this court, per Oputa, JSC, at page 886 restated the principle thus:-

“Law and all its technical rules ought to be but a hand maid of justice and legal inflexibility (which may be becoming of law) may, if strictly followed, only serve to render justice grotesque or even lead to outright injustice. The court will not endure that mere form or fiction of law, introduced for the sake of justice, should work a wrong, contrary to the real truth and substance of the case before it …”

And at page 871, Karibi-Whyte restated the principle more pointedly when he said:-

“I think it is erroneous to assume that the maxim ubi jus ibi remedium is only an English Common Law principle. It is a principle of justice of universal validity couched in Latin and available to all legal systems involved in the impartial administration of justice. It enjoins the courts to provide a remedy whenever the plaintiff has established a right. The court obviously cannot do otherwise. It is enjoined to eschew reliance on technicalities in the determination of disputes – See State v. Gwonto & Others (1983) 1 SCNLR 142 at 160.

The substance of the action rather than the form should be the predominating consideration. The appellants have relied on the decision of this court in Falobi v. Falobi (1976) 1 NMLR 169, 171 to argue that even if the writ of summons and statement of claim had not specified a particular law under which the action was brought, the court will give a remedy where the facts as disclosed fall within a remedy recognised in law. I think this is a correct principle deducible from Falobi v. Falobi (supra).”

See also Margaret Chinyere Stitch v. A.-G. of the Federation (1986) 5 NWLR (Pt. 476) 1007; (1986) 2 NSCC 1389, where the principle was again amply demonstrated by this court. There the plaintiff/appellant claimed for the release of her car which was taken in the custody of the Board of Customs in 1982. She lost at the High Court and her appeal to the Court of Appeal was dismissed. Her further appeal to this court succeeded. This court found her entitled to the release of the car as claimed. But by the date of the judgment 12/12/86 what was left of the car was only the wreck which release to the appellant would not meet the justice of the case. And for the purpose of providing a remedy for the appellant for the wrong she suffered, this court ordered the award of damages (which she never claimed) and remitted the case back to the trial court for assessment of same.

In the light of the above, would the two courts below be said to have done substantial justice between the parties by dismissing the motion in its entirety for the non-compliance with Order 1 rule 2(1) of the Borno State High Court (Civil Procedure) Rules, in view of the established factual situation The factual situation is contained in prayer (B) of the motion and paragraphs 5, 6 and 7 of the supporting affidavit which I have reproduced earlier in this judgment. It is to the effect that the 1st respondent, in collusion with the 2nd respondent and feigning a court order that never existed, sold the four properties in relief (B) to some of the 3rd – 8th respondents. It is an allegation of fraudulent manipulation of the court’s process for an unlawful deal.

The allegation is not denied by the 1st and 2nd respondents. The 3rd respondent who filed a counter-affidavit some 10 years after on the 21/2/97 said nothing in denial. And of course they (respondents) cannot deny in the face of the overwhelming evidence on record.

The appellant has proved beyond any doubt that he has been unduly deprived of his properties for over 22 years. He has firmly established a right for which he is entitled to a remedy in law. In the face of this very strong factual situation entitling the appellant to a remedy at law, should he be denied redress by this court because of the admittedly wrong procedure by which he has come to court I shall answer this question in the negative.

There is yet another factor worth considering on this vexed issue of the wrong procedure. The decision whether to come by way of a motion or a writ of summons was entirely that of the appellant’s counsel G. Brown-Peterside, SAN who formulated the process. (See page 2 of the record.) This court has insisted in a long line of cases that parties should not be punished for the ignorance or mistake of their counsel.See Ibodo v. Enarofia (1980) 5-7 SC 42; Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184; Obidiaru v. Unique & Anor. (1986) 3 SC 39; Afolabi v.Adekunle (1983) 8 SC 98; (1983) 2 SCNLR 141. In Bello v. A.-G., Oyo State (supra) at 870 – 871 this court, per Karibi-Whyte, again articulated this principle of justice in the following terms:-

“The respondent has contended that counsel did not in fact advert his mind to the Torts Law because of his reliance on the maxim ubi jus ibi remedium (meaning where there is a right, there is a remedy), suggested that he knew there was a right but that there was no remedy; and is asking this court to provide one. That may well be the case. Even in such a situation the court cannot in the discharge of its sacred duty to do justice be inhibited by the ignorance or carelessness of counsel. The injustice resulting to the cause of the litigant from such demonstration of ignorance and carelessness does not adversely affect counsel whose fees remain undiminished. I think I am speaking the mind of all those engaged in the administration of justice, not only in this court but in all courts in this country, that the day the courts allow the inarticulacy or ignorance of counsel to determine the result of an action before it, that day will herald the unobstrusive genesis of the unwitting enthronement of injustice aided by the court itself by default.”

This principle should apply with equal force in this case. Rather than decide the case on the mistake of learned counsel to the appellant, the case should be decided on the merit based on the undisputed facts before the court.

Before going to the conclusion, it is necessary to examine the role played by the 1st respondent, Alhaji Lawan Mognuno. He conceived and executed the unwholesome deal of selling the four properties and has deprived the appellant of his properties for over 22 years. He has since abandoned the case for the 3rd, 4th and 7th respondents, ostensibly in the belief that he no longer has anything to lose in its outcome. The effect of a dismissal of the motion is that he takes full benefit of his fraudulent deal and forever deny the appellant of his title to the properties. That would be outright perpetration of injustice. A court of justice cannot allow this. It has been settled that a party who has committed an illegality cannot be allowed to benefit from same. See Oil field Supply Centre Ltd. v. Johnson (1987) 2 NWLR (Pt.58) 625; African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt.210) 391; Ayinke v. Lawal (1994) 7 NWLR (Pt.356) 263.

There is also the appellant’s complaint about the trial court’s adjournment of the motion for nearly 10 years. On the 16/2/88, the trial court adjourned the motion on the ground that a determination of same would render nugatory the decision in suit No. M/36/86 and render the whole exercise merely academic and it remained so stayed for nearly 10 years. The Court of Appeal saw the adjournment as a proper exercise of the court’s judicial discretion. Here again, there was some misconception about the relevance of suit No. M/ 36/86 and the motion. It is my view that the outcome of the fresh suit had nothing to do with the execution carried out in the previous suit No. M/153/82. Its decision could not have restored to the appellant the properties comprised in relief (A) which attachment and sale were carried out under the valid order of the 29/2/84. Nor could the decision in the fresh suit have validated the fraudulent and unlawful sale of the properties comprised in relief (B). The fresh suit was, therefore, irrelevant in the determination of the merits or – demerits of the motion. But for this misconception and the resultant adjournment the motion would have been disposed of about 10 years earlier. The delay, no doubt, aggravated the injuries suffered by the appellant. His complaint about the unwarranted adjournment therefore has merit.

In the light of the foregoing considerations and particularly having regard to the facts and circumstances overwhelming in favour of the appellant and the legal effect of the dubious and unauthorised sale of the properties listed in relief (B) of the motion, a court of equity, which this court is, has a duty to look at the substance of the relief sought in the said prayer (B) and grant such a remedy as meets the justice of the case. The substance of what he claims, from the of the prayer, is for an order of court for the immediate restoration of his properties to him and I would not hesitate to hold that he is so entitled. A dismissal of the motion on ground of defective procedure as contained in the concurrent decisions of the two lower courts would only enthrone injustice. In conclusion therefore, I hold that the appeal partly succeeds and partly fails. The appeal in respect of the three properties in prayer (A) of the motion fails and the judgment of the two courts below in respect thereof be and is hereby affirmed.

The appeal in respect of the four properties in prayer (B) of the motion succeeds and the judgment of the trial court in respect thereof and affirmed by the Court of Appeal be and is hereby set aside. In its place, I substitute a judgment directing that, the appellant who remains the owner, is entitled to immediate restoration and possession of the four properties therein described. I make no orders as to costs.

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SC.403/2001