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Festus Makene Ikomi V. John Ojobo Agbeyegbe (1948) LJR-WACA

Festus Makene Ikomi V. John Ojobo Agbeyegbe (1948)

LawGlobal Hub Judgment Report – West African Court of Appeal

Civil Procedure—Action to set aside sale by Order of Court—Sale in 1938—Action brought in 1938 struck out for non-appearance of plaintiff—Action relisted in 1947—Application then to amend writ—Judgment for plaintiff declaring sale a nullity—Exercise of Court’s discretion—Supreme Court (Civil Procedure) Rules, Order XL rule 6—English R.S.C., Order XXXVI rule 33 and Order LXI V rule 7—No appeal against order to re-list—West African Court of Appeal Rules, 1937, rule 30—Sheriffs and Enforcement of Judgments and Orders Ordinance, sections 46 and 47.

To grant an application for re-listing a case made nine years after the case was struck out for non-appearance of the applicant was not a. correct exercise of judicial discretion in the circumstances of this case, and deprived the purchaser at the sale of the protection which the legislature intended to afford him.

Cases referred to:

  1. Rooke’s case, 77 E.R. 209.
  2. Sharp v. Wakefield (1891), A.C. 173 (appeal); (1888), 22 Q.B.D. 239; 58 L.J.M.C. 57; 60 L.T. 130; 53 J.P. 20; 5 T.L.R. 140.
  3. London S.S., etc., Corporation v. Russian Volunteer Fleet, 135 L.T. 607; 42 T.L.R. 632; 70 Sol. Jo. 838.
  4. Laird v. Briggs (1881), 19 Ch. D. 22; 45 L.T. 238.
  5. White v. Witt (1877), 5 Ck. D. 589; 46 L.J. Ch. 560; 36 L.T. 123; 37 L.T. 110.

Appeal from the Supreme Court of Nigeria.

David for Appellant (defendant below).

Respondent (plaintiff below) in person.

The following Judgment was delivered:

Verity, C.J. This is an appeal from a judgment of Rhodes, J., declaring to be a nullity the sale by the Deputy Sheriff of certain land the property of the respondent.

The facts are that on the 30th December, 1937, the Court ordered the sale of the land in an action in which the respondent was judgment-debtor. The Order provided that notice of the sale should be published in three consecutive issues of the Nigeria Gazette. The notice was published twice only, but nevertheless on 27th May, 1938, the land was sold at public auction to the appellant. On 31st May, 1938, the respondent brought action to set aside the sale, but on 7th July, 1938, when it came on for hearing the respondent did not appear and the action was struck out.

On 8th June, 1947, nine years later, the respondent moved the Court for leave to re-list. The motion came on for hearing on 15th September, 1947. The respondent and the appellant together with a co-defendant appeared in person, and, as would appear from the record leave was granted without argument on either side. The case was relisted and came on for hearing on 18th December, 1947, the respondent being represented by Counsel but the appellant and his co-defendant again appearing in person. After the respondent had given evidence, leave was asked to amend the writ. This was opposed by the appellant, but leave was granted and the hearing adjourned sine die, At the resumption of the hearing on 16th March, 1948, Counsel appeared on behalf of the appellant for

the first time. The hearing was concluded on 25th March, 1948, and judgment delivered on 2nd April, declaring the sale a nullity.

There are several grounds of appeal, the first being that the learned Judge erred in relisting the case and in allowing an amended claim to be filed nine years after the original claim had been struck out. I must confess some surprise that the case should have been re-instated after so long a delay and upon the inadequate grounds set out in the respondent’s affidavit, but the issue before us is not whether we should have exercised our discretion in like manner, but whether the learned Judge exercised his discretion properly and whether, if not, this Court now has power to intervene and allow the appeal on this ground.

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Leave to re-list appears to have been granted under Order XL rule 6 of the Supreme Court (Civil Procedure) Rules which provides that:—

“Any cause struck out may, by leave of the Court, be replaced on the cause list on such terms as to the Court may seem fit.”

It is to be observed that this rule prescribes no time limit within which application for leave is to be made. The English rule most nearly analogous (Order XXXVI rule 33 R.S.C.) requires that application should be made-within ten days (until 1940, within six days). Under Order LXIV rule 7 R.S.C., however, the Court may in its discretion enlarge the time. While there is no time limit fixed by the local rule it is obvious that the granting of leave is not as of course, but is in the discretion of the Judge, a discretion which must not be exercised arbitrarily but judicially, ” according to the rules of reason and justice ” (as was said in Rooke’s case (1) so long ago as 1598 and approved by Lord Halsbury, L.C., in Sharp v. Wakefield (2). In the exercise of the discretion the Judge is to take into consideration all the circumstances, including’ such questions as the extent of the delay in making the application, the reasons therefOr, the nature of the claim and the effect of granting leave upon the rights of the other party. It is clear that in the present case the learned Judge either failed to consider or disregarded these factors when he exercised his discretion in favour of the respondent. The delay of nine years upon grounds which as set out in the affidavit supporting the motion are patently inadequate, the fact that the suit affected the ownership of land, to which the appellant had acquired a certificate of title and in undisturbed possession of which he had remained for many years—these are factors to which due consideration should have been given and which should not have been lightly disregarded. Regard should have been had, moreover, to the fact that under the Rules of Court in force at the date of the sale (Order XLV rules 31 & 32, Cap. 3) and the statute in force at the date when leave was sought (The Sheriffs and Enforcement of Judgments and Orders Ordinance, 1945, sections 46 and 47) purchasers at execution were and are protected against delayed actions to. set aside sales for irregularity, by the requirement that applications to set aside such sales must be made within twenty-one days, and that if no such application be made within the prescribed time the sale shall be deemed absolute. Whatever may be the meaning of the word ” sale ” in the present case and no matter what distinction may be drawn between the words ” shall be deemed absolute ” and ” shall be absolute ” (about which we have heard- much argument), there can be no doubt that by the order of the Court granting leave to re-list this case the appellant has been deprived of the protection which the legislature intended to afford him.

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In my view then, the learned Judge erred in exercising his discretion in favour of the respondent in that he did not apply his mind to the proper considerations or else did not give effect to the rules of reason and justice applicable thereto.

It was submitted, however, – on behalf of the respondent that, even if the learned Judge should not have granted leave to re-list, this Court cannot give any relief in the present appeal inasmuch as such leave was not opposed by the appellant at the time and no appeal was brought from the Order granting it.

It is true as was held in London S.S., etc., Corporation v. Russian Volunteer Fleet (3) that any objection that such an application was out of time must be made at the earliest possible moment. It must be remembered, however, that the appellant was not at the material time represented by Counsel and that the circumstance of so belated an application was so extraordinary that the Court itself should have given due consideration to the facts and to the principle; upon which its discretion was to be exercised, and should have refused leave even in the absence of opposition, which could not in the circumstances be held to have operated as consent.

It would be monstrous to allow the respondent to sleep on his rights for nine years and yet penalise the appellant because, not being represented by Counsel, he did not raise objection ” at the earliest possible moment ” in a literal sense.

As to failure to appeal against the order, we think that this is covered, in the circumstances of this case, by rule 30 of the West African Court of Appeal Rules, 1937, now Rule 34 of the West African. Court of Appeal Rules, 1950, which provides that

” No interlocutory order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision on the appeal as may seem just.”

As was said by Jessel, M.R., in Laird v. Briggs (4) a case in which liberty to appeal out of time from an interlocutory order was sought after notice of appeal from the judgment had been given,

” As you have appealed from the whole judgment the whole case will be open on the appeal.”

It must not be thought that in no circumstances will failure to appeal against an interlocutory order bar an appellant from raising an issue which should have been dealt with by Appeal from an interlocutory order for, as was said by James, J., in White v. Witt (5) in relation to the similar English rule (Order LVIII rule 14):—

“It was never intended that an interlocutory order which amounts to a finding of verdict, should be open to appeal after the twenty-one days, because the time for appeal from the final order founded on it has not expired.”

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Jessel, M.R., in the same case said:—

“This rule was only intended to prevent the right of appeal from being interfered with by the existence of an interlocutory order which incidentally involved a decision of the point.”

The present case, however, clearly falls within that intention and to hold otherwise would be to defeat the purpose of the rule. The interlocutory order does not amount to a finding or verdict, but upon its validity the whole of the subsequent proceedings including the final judgment must stand or fall.

In holding that the appeal must succeed I am not unduly impressed by the view of the learned Judge in the Court below that the case” revealed before him a gross miscarriage of justice ” for I am at a loss to understand how, upon the vague and extremely unsatisfactory evidence before him, he can have held that by reason of the irregularity in the conduct of the sale the respondent sustained substantial injury.

In my opinion, the appeal should therefore be allowed, the Order of the Court below granting leave to replace the cause on the cause list and consequently all proceedings thereafter should be set aside and judgment entered for the appellant in the court below with costs. The appellant should have his costs of this appeal.

Blachall, P. I have the advantage of reading my brother Verity’s judgment. I find myself in entire agreement with it and have only this to add. The learned trial Judge has stated that the respondent gave evidence that he had been offered £2,000 for the property, but that the offerer and offeree were waiting for the third publication in the Gazelle. From this it would appear that he was under the impression that the respondent had one such offer only. But in fact the respondent said : ” I had offers of £2,000 made to me for the purchase of the land but they were waiting for the completion of the Gazette notices “. Had the learned Judge realised this he might not have been so ready to accept without corroboration the inherently improbable story put forward by the respondent. He might have enquired who these anonymous gentlemen were, and why, if they were prepared to pay nearly three times the price obtained at a brisk auction sale, they were not sufficiently interested to attend the sale themselves. He might also have enquired whether any of these would-be purchasers subsequently approached the appellant with a view to a re-sale. Seeing that they were willing to pay a price so greatly in excess of what he had paid for the property, they were in a position to make him a very tempting offer—one which he would hardly have refused at that time. During the nine years that have elapsed since the sale, property values have, however, risen considerably, and it well may be that at the present time the respondent could obtain a higher price than it was sold for in 1937. This offers a possible clue to the present belated proceedings.


Appeal allowed.

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