Ideal Finance And Investment Company Limited & Anor V. Financial Opportunity Centre Limited & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the Lagos State High Court delivered on the 2nd day of November, 2000 by HON. JUSTICE MONI FAFIADE (MRS) wherein the appellants’ application to set aside sale of the property situate at No. 16, Abiola Street, Alapere Ketu, Lagos and for which possession had been given to the 2nd Respondent.

The appellant dissatisfied with the said ruling filed an Amended Notice of Appeal dated 23rd June, 2003 filed on the 24/6/2003 setting out 4 grounds of appeal.

FACTS:

The brief facts of the case are that the Appellants were judgment debtors/applicants at the Lower Court. The 1st Respondent was Plaintiff. The 1st Appellant applied for a loan from the 1st Respondent while the appellants gave corporate and personal guarantee for N1,000,000.00 (One Million Naira) at 10.5% per month interest for 90 (Ninety) days to the 1st Respondent.

Appellant’s effort at repayment issued Eko International Bank Plc cheque which failed, the cheque was dishonoured. The 1st Respondent took out a writ of summons against the appellants which was contested and subsequently withdrawn. Thereafter the 1st Respondent (Plaintiff) filed a summons under Order 10 Rules 1 & 2 of the Lagos State High Court Rules 1972 and judgment was entered on the 24/2/1994.

The appellants applied for instalmental payment and stay of execution by way of motions which were struck out for want of diligent prosecution. The 1st Respondent thereafter applied for a writ of fifa against the judgment debtors and same was executed and moveable items attached were sold by public auction early October, 1994. The sum of N42,292.00 (Forty Two Thousand, Two Hundred and Ninety Two Naira) Only was realized.

An attempt to relist the appellants’ motion for installment payments was also struck out. Then the Respondent as judgment creditor caused a writ of fifa to be issued against the immovable property of the 2nd Appellant within the court’s jurisdiction at No. 16 Abiola Street, Alapere, Ketu.

Further efforts at repaying the debt through the offer of some plots of land at Iba was rejected. The Appellants later applied to set aside the writ of fifa issued against the 2nd appellanf/judgment debtor’s immovable property at 16 Abiola Street, Alapere, Ketu on the ground that there was no valid notice of the auction.

The Public Notice in question is dated 27/9/95 for auction on 25/10/95 at 11.30am but the sale finally took place on 23/10/97 after another Public Notice for the sale was pasted same day and auction sale conducted at 1.30pm. An application to set aside the sale was made on the 28/10/97 while the Chief Judge of Lagos State issued the Certificate of purchase in favour of the 2nd respondent on the 24/4/1998. The application to set aside the auction was refused thus this appeal. The court granted leave to hear appeal on Appellants’ and 2nd Respondent’s briefs only.

The Appellants brief of Arguments dated 2nd May, 2006 was filed on same day and a reply on points of law filed on the 17th January, 2007 and deemed filed on the 5/2/2015. The 2nd Respondent’s brief dated 3/10/06 filed on 26/10/06 was deemed filed on the 9/11/10. The 1st and 3rd Respondent did not file any brief.

The appellant formulated 4 issues for determination as follows:

2.01 1. Whether the Public Auction sale of the properties at 16, Abiola Street, Alapere Ketu, Lagos State was on the Public Notice posted on the property in October 1995 or the notice issued and posted in October 1997.

2. Whether part payment of N300,000.00 (see page 81 records of 13th March, 1997) in 1997 was an acceptance of installment payment of the judgment debt.
3. Whether the Deputy Sheriff whose material irregularity in the conduct of the sale of the properties on 23/10/97 refusal to deny the allegations is an admission of the allegations against him. If the answer is in the affirmative whether the sale ought to be set aside.
4. If the Public Auction sale was found to be on the Public Notice posted in October 1997, whether there was material irregularity in the conduct of the sale which occasioned injury to the 2nd appellant.

The 2nd Respondent also formulated 4 issues for determination namely: