Electrical & Mechanical Construction Co. Ltd. v. Total Nig. Ltd. & Anor. (1972)

LawGlobal-Hub Lead Judgment Report

O. ELIAS, C.J.N.

This is an appeal against the judgment of Bello J. at the High Court, Kaduna, on 30th March, 1971, in which he refused to set aside the sale of the property, 7 Sokoto Road, Kaduna, which belongs to the judgment debtor, to the purchaser of the property at an auction held by the Deputy-Sheriff on 13th August, 1970.

The case originated in Suit No. Z/33/1968 which the plaintiffs brought in the High Court at Kaduna by writ of summons dated 17th September, 1968, in which the plaintiffs’ claim was for the sum of ‘a336605 being the value of petroleum products delivered by them to the defendants on credit at the latter’s request and for which the defendants had failed to pay despite demand.

The facts of the case, which are not is dispute, may be summarized as follows: that the appellant obtained judgment against the respondent for the sum of ‘a336605 on 26th October, 1968; that the judgment creditor issued a writ of fifa on 16th November, 1968, for the attachment of the movable property of the respondent in satisfaction of the Judgment debt but that the writ was returned for the reason that the respondent had no movable property on which to levy execution within the jurisdiction of the High Court; that upon the application of the judgment creditor, the High Court at Kaduna, on 19th April, 1969, granted leave for the sale of the immovable property of the respondent, namely, 7 Sokoto Road, Kaduna, in satisfaction of the judgment debt; and that, in compliance with this order of the Kaduna High Court, the Deputy Sheriff sold 7 Sokoto Road, Kaduna, for ‘a3313,000 to Alhaji Sanni Bakori as purchaser at a public auction held on 13th August, 1970.

By his affidavit, Mr. G. A. Obayan, counsel for the applicant in the lower court, averred that on 14th August, 1970, he reported the sale of the property in question to his senior partners, Messrs Irving & Bonnar at Kano, that he was then informed that the judgment debtor had settled the judgment debt and costs, but that no notice of the said settlement of the debt was given in time to the solicitors to revoke the order for sale. Mr. Obayan further averred that he returned from Kano on 15th August 1970, and thereafter wrote to the Registrar to stop making the sale absolute; and that he filed an ex parte motion on 20th August, 1970, to set aside the sale.

In his counter-affidavit, Mr. V. T. Ekuere, a Manager of the respondent, averred that on 15th April, 1969, the applicant/judgment creditor registered in the Lagos High Court a certificate of the judgment he had obtained in the Kaduna High Court; and that, in consequence of the writ of execution issued out of the Lagos High Court, the respondent paid to the applicant/judgment creditor the judgment debt together with costs. The purchaser who was not represented by counsel but who had been put on notice regarding these proceedings on 10th March, 1971, argued that he bought the property at a public auction and that he was not aware of any defect in the sale. He further stated that he paid the purchase price and obtained a Certificate of Occupancy from the Governor.

The learned trial judge noted that counsel for the applicant/judgment creditor drew his attention to the correspondence file of the Kaduna High Court Registrar in respect of a notice from the Registrar of the Lagos High Court to the effect that a writ of execution had been issued against the movable property of the respondent in Lagos on 16th April, 1969. He nevertheless proceeded thereafter to hold as follows:-

“From the foregoing I find that the sale of the property, 7 Sokoto Road, Kaduna, took place after the judgment debt had been liquidated; that neither the applicant/judgment creditor nor the respondent judgment debtor who were both aware of the settlement of the debt before the sale took any step to stop the sale.

I also find that the Deputy Sheriff and the purchaser were not aware of the fact that the judgment debt had been settled at the time of the sale. I find that the purchaser purchased in good faith.”

Both Mr. Razaq for the judgment debtor and Mr. Obayan for the judgment creditor contended that the sale was void and should be set aside because, the judgment debt having been fully paid before the sale, the execution was wrongful; and Mr. Obayan also argued that as the sale had not been made absolute at the time he filed his ex parte motion within 21 days of the sale, the provision of section 47 of the Sheriffs and Civil Process Law of the Northern States had been complied with. This section provides as follows:-

“At any time within twenty-one 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.”

The learned trial judge cited Bate J.’s judgment in Attorney-General (North) v. Nigerian Embel Tin Smelting Ltd. and 3 ors., Suit No. JD/8/63 delivered on 23rd June, 1967 (unreported) to show that two irregularities were found in the execution proceedings which led to the sale being set aside. He observed that the irregularities were that the goods were unlawfully attached by the Deputy-Sheriff and that the latter had notice of a claim to the goods attached on the part of a third party before the sale and nevertheless failed to take interpleader proceedings to determine the claim to that third party. The learned trial judge, however, observed:-

“I find no evidence of any irregularity in the conduct of the sale. The order for sale was made before the liquidation of the judgment debt in Lagos. Neither the Registrar of this court nor the Deputy-Sheriff was notified of its liquidation. If there is any irregularity whatever, it was the negligence of the applicant/judgment creditor, who employed the process of the court to sell the property and the respondent/judgment debtor, who sold over their attached property in failing to apply to the court to revoke the order for the sale. Both parties are estopped from relying upon their negligence to deprieve a bona fide purchaser for value of the property.”

In order to emphasize this view that he took of the matter, the learned trial judge further observed:-