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Home » Nigerian Cases » Supreme Court » Mr. Akinfela Frank Cole V Mr Adim Jibunoh & Ors (2016) LLJR-SC

Mr. Akinfela Frank Cole V Mr Adim Jibunoh & Ors (2016) LLJR-SC

Mr. Akinfela Frank Cole V Mr Adim Jibunoh & Ors (2016)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is an appeal by the Appellant against the judgment of the Court of Appeal, Lagos Division delivered on 17th day of November, 2005, wherein it held that:

“Issue of estoppels has been successfully raised to sustain plea of Res judicata.”

The background facts in this appeal are briefly exposed for the better understanding of the issues involved as follows: The suit No. ID/1082/90- REV. CLM FAJEMIROKUN (2nd Respondent herein) v. MRS. TITILAYO COLE (Appellant herein) had been previously tried in Lagos State High Court, Ikeja Division. The 2nd Respondent herein, as plaintiff in the suit, was successful and the sum of N169, 000 was awarded in his favour against the Appellant herein, as the defendant. Consequently a writ of fifa was filed to cause execution against Appellant’s moveable property. That execution yielded sum of N15, 812.50; which the 2nd Respondent felt was insufficient to satisfy the judgment debt. Consequently, as a judgment creditor, the 2nd Respondent applied to Court for issuance of a writ of attachment and sale of the immovable property of the

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appellant for the sum of money outstanding against the judgment debtor, the Appellant herein.

Consequently the Court made an order for writ of attachment to issue against the immovable property of the judgment debtor known as No.23 OSIPITAN STREET, BARIGA, LAGOS.

The Judgment debtor, Appellant herein after the order of writ of attachment of her immovable property, still failed, neglected and/or refused to pay the judgment debt. However, on 24/04/94, she filed a motion seeking to set aside the order of writ of attachment by the Court.

Upon the dismissal of the application of the judgment debtor, the Deputy Sheriff, Lagos State High Court issued a Public Notice of Auction sale, advertising the sale of the property of the judgment debtor.

On 23/11/94 the sale was conducted publicly and the Appellant’s property was sold for the sum of N450,000 to the 1st Respondent herein, the highest bidder and accordingly a certificate of purchase of the property was issued to him, after 21 days from the date of sale.

Dissatisfied with the sale of her property, the Judgment debtor, Appellant herein now instituted a fresh suit No. ID/3228/94 on 23/12/94

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challenging the sale and seeking to declare it null and void.

The 1st Respondent herein, in reaction to the Writ of Summons and Statement of claim filed a Notice of Preliminary Objection challenging the jurisdiction of the Court to try the suit on grounds that the issues raised in Suit No. ID/3228/94 had been raised and determined in the previous Suit No. ID/1082/90 and that the Sale of the Appellant’s property has become absolute pursuant to the provision of the Sheriff and Civil Process Law of Lagos State.

A point that has been made and our attention have been promptly drawn to by the learned counsel for the 1st Respondent in his Amended Brief that the period between the date of sale of the properly on 23/11/94 and the date of fifing suit No. ID/3228/94 on 23/12/94 was 30 days. The learned trial judge had ruled that there was no merit in the preliminary objection filed by the 1st Respondent herein, as the nature of the action brings it outside the ambit of the Sheriff and Civil Process Act. He then dismissed the preliminary objection to try the suit.

Being dissatisfied with the foregoing Ruling of the learned trial judge, the 1st Respondent

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herein, appealed to the court below. It is further noted that in that Court, while the Appellant herein filed her brief of argument on 19/09/2001, and the 2nd Respondent herein filed his brief on 18/04/2002 the 3rd Respondent did not file any brief of argument.

On 4/10/2005, the Court below allowed the appeal of the 1st Respondent herein. The Appellant being dissatisfied with this judgment appealed against it to this Court by filing a Notice of Appeal containing two grounds of Appeal with their particulars, as follows:-

“1. The learned Justices of Court of Appeal erred in law when they held as follows:

“that issue of estoppel has been successfully raised to sustain the plea of Res Judicata.”

PARTICULARS OF ERROR

(1). A close look at Suit No. ID/1082/90 and Suit No. ID/3228/94 will reveal that the parties are not the same.

Both the Deputy sheriff of Lagos High Court and Mr. Adim Jibunoh are not parties in Suit No. ID/1082/90.

(2), The subject matter in Suit No.ID/1082/90 had to do with debt simpliciter while the subject matter in No.ID/3228/94 has to do with the sale of the property situate at No.23A, Oshipitan Street,

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Bariga Lagos.

(3). The issue raised in Suit No. ID/1082/90 had to do with whether or not the Defendant therein Mrs. Titilayo Cole was owing the sum of N169,000.00 as claimed in the Writ of Summons while the subject matter in Suit No. ID/3228/94 borders on the propriety of the sale of the Plaintiffs property situate at No.234, Oshipitan Street Bariga Lagos by the Defendant.

(4). The Appellant in the Lower court was unable to satisfy and the conditions for a successful plea of Res Judicata.

(2.) The learned Justices of Court of Appeal erred in law in holding that the Appellant did not bring suit No. ID/3228/94 within 21 days as contained in Section 47 of the Sheriffs and Civil Process Law when it held as follows:

“that if an applicant fails to set aside a Writ of attachment and sale of immovable property, he will be free to institute a fresh suit to set aside the sale but this mustbe done within 21 days from the date of the sale of the property since a writ of Possession is not supposed to be issued to the Purchaser for value until 21 days have elapsed following the sale.”

PARTICULARS OF ERROR

  1. Section 47 of the Sheriff and Civil

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Process Act 1990 Laws of the Federation does not apply to the Plaintiff/Appellant’s case in Suit No. ID/3224/94.

  1. The Appellant’s complaints in Suit No ID/3228/94 is not based on irregularity as contained in Section 47 of the sheriff and Civil Process Act but on fraud and forgery.
  2. Section 47 of the Sheriff and Civil process Act 1990 Laws of the Federation of Nigeria is invoked where there is irregularity in the sale of attached property.
  3. The word “may” as appeared in Section 47 of the Sheriff and Civil Process Act 1990 Laws of the Federation of Nigeria is generally permissive and not mandatory. It does not foist on a party a legal duty which must be performed.
  4. The particulars of fraud having been particularized by the Plaintiff/Appellant in paragraph 22 of her statement of claim brings this action clearly outside the ambit of Sheriff and Civil Process Act.

The two issues raised for determination by the Appellant in her brief of argument are as follows:-

“1. Whether an Order for Writ of attachment and sale of immoveable property made by a High Court for the enforcement of Judgment debt obtained in previous suit No.

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ID/1082/90 – REV. C.L.M. FAJEMIROKUN VS MRS. TITILAYO COLE operates as a RES JUDICATA precluding the Plaintiff/Appellant from filing a fresh suit ID/3228/94 – MRS. TITILAYO COLE VS. C. L.M. FAJEMIROKUN & TWO OTHER to challenge the sale of the immoveable property carried out fraudulently and illegally.

  1. Whether the Plaintiff/Appellant herein is right to have filed a fresh writ ID/3228/94 challenging the sale of her property through fraudulent means instead of filing an application within 21 days to the same Court to set aside the sale pursuant to Section 47 of Sheriff and Civil Process Act Cap 407 LFN 1990.”

The 1st Respondent in his brief of argument formulated two issues for determination as follows:

“2.1. Whether the issue of the setting aside of the writ of Attachment and sale of the Appellant’s property known as No.23 Osipitan Street Bariga, Lagos raised in the present suit No. ID/3228/94 has not been raised and determined upon in suit No.ID/1082/90 to entitle the 1st Respondent plead issue estoppels being a Judgment in rem.

2.2 Whether the Court can by a fresh suit or otherwise set aside a sale which title has crystallized and a

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certificate of purchase issued thereon, after 21 days from date of sale, to a third party Bona Fide Purchaser for value without notice.

The 2nd Respondent on the other hand in his brief of argument formulated two issues for determination similar to those of the 1st Respondent, needless reproducing them.

See also  Jombo United Company Limited V. Leadway Assurance Company Limited (2016) LLJR-SC

It is note worthy that the 3rd Respondent did not file any brief of argument in this appeal.

On the 1st issue, learned counsel for the appellant submitted that to sustain a plea of Res Judicata, the party pleading it must satisfy the following conditions:- that the parties or their privies are the same in the present case as in the previous case; that the issue and the subject matter are the same in the present case as in the previous suit; that the adjudication in the previous case must have been given by a Court of competent jurisdiction; and finally that the previous decision must have finally decided the issues between the parties. Reliance was placed on the decisions of this Court in NKANU v. ONUN (1977) 5 SC. 13; IBERO v. UME-OHANA (1993) 3 NWLR (Pt.277) 510 at 513 and FALEYE v. OTAPO (1995) 3 NWLR (Pt.381) page 1 at page 10. Learned

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Counsel submitted that a close look at the two cases in question namely: ID/1082/90 – Rev. CLM FAJEMIROKUN v. MRS. TITILAYO COLE and ID/3228/94 – MRS. TITILAYO COLE v. 1. REV. CLM FAJEMIROKUN 2. THE DEPUTY SHERIFF HIGH COURT, LAGOS 3. MR. ADIM JIBUNOH; will reveal that the parties are not the same. The reason being that both the Deputy Sheriff and Mr. Adim Jibunoh are not parties in suit No. ID/1082/90. Secondly, that the subject matter in suit No. ID/1082/90 had to do with debt of N169, 000.00 owed by Mrs. Cole to Rev. CLM Fajemirokun, while the subject matter in Suit No. ID/3228/94 has to do with the property at No.23A Osipitan Street Bariga, Lagos. It is contended therefore that the plea of estoppel per Res Judicata cannot be sustained. It is further explained that the issue raised in suit No. ID/1082/90 had to do with whether or not the Defendant therein (appellant herein) was owing the sum of N169, 000.00 as claimed in the Writ by the plaintiff therein, Rev. CLM Fajemirokun. That the granting of an order of attachment against the immovable property of the Appellant herein was not part of the issues raised in Suit No. ID/1082/90. In the present case

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ID/322A/94 the issue before the Court borders on the sale of the Appellant’s property. It is submitted that once allegation of fraud, particulars of which are contained in the statement of claim, is proved, it vitiates the sale and takes away the right of title and interest which the 1st respondent had purchased. It is urged on us to hold that the plea of Res Judicata cannot succeed in this case as to preclude the appellant herein from bringing another suit to challenge the sale of her property fraudulently by the Respondents herein.

On his part, the 1st Respondent has contended that the main issue in Suit No. ID/3228/1994 between MRS. TITILAYO COLE VS. REV. CLM FAJEMIROKUN AND OTHERS was a claim by the Appellant herein praying the Court to set aside the writ of attachment and sale of her property known as No. 23A Osipitan Street Bariga, Lagos which prayer had been made in suit No. ID/1082/90 between RE v. CLM FAJEMIROKUN VS. MRS. TITILAYO COLE and was refused by Ola Martins J. That there is admission by the Appellant herein that the judgment was given against her in the previous said Suit No. ID/1082/1990 as averred in paragraph 5 of her statement of

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claim. That she also admitted that due to her inability to settle the judgment debt in that suit an order of attachment and sale was made against her immovable property as stated in paragraph 7 of her Statement of Claim. It is the further contention of the Appellant that she applied to the Court to set aside the order of writ of attachment and sale which the Court refused. In paragraph 9 of her statement of claim she averred that the sale of her property took place on 23/11/1994.

Learned Counsel for the 1st Respondent has submitted that the Appellant having admitted the foregoing set of facts no further evidential proof was required. It is accordingly submitted that all the entire set of facts and circumstances necessary for the appellant to prove and succeed in Suit No ID/3228/94 have been adjudicated upon previously Suit No. ID/1082/90

It is submitted that if the trial Court is allowed to assume jurisdiction it will proceed with the instant Suit and possibly enter judgment in favour of the Appellant herein and this will tantamount to a review of the decision of the Court in the previous suit No. ID/1082/90.

In the brief of argument of the

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2nd Respondent, his learned Counsel associates and aligns himself with the submissions of the learned Counsel for the 1st Respondent absolutely. However, by way of emphasis, learned Counsel has noted that 2nd Respondent was a party in Suit No. ID/1082/90 and he got judgment on 25/3/92 against the Appellant herein who was the defendant in that case.

It is submitted that all issues raised in Suit No. ID/3228/94 had been adjudicated upon in the previous Suit No. ID/1082/90. That the issues raised in ID/3228/94 relate and concern the sale of Appellant’s property No. 23A Osipitan Street Bariga, Lagos State as a result of her failure to pay the judgment debt in Suit No. ID/1082/90 and her motion to set aside writ of attachment and sale was dismissed by Martin J. That the fact that Appellant herein filed a Suit No. ID/3228/94 challenging the sale of her immovable property ordered by writ of attachment made in previous Suit No. ID/1082/90 and averring allegation of fraud in the conduct of sale will not confer jurisdiction on the trial Court.

Learned Counsel has submitted further that the mere addition of the 1st and 2nd Respondents in suit No. ID/3228/94 is

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misconceived and this cannot justify the institution of fresh suit.

Learned Counsel has finally submitted that the Court sitting in Suit No.ID/3228/94 not being a court of appeal with appellate jurisdiction, conferred on it by S.240 of the Constitution of Federal Republic of Nigeria, 1999 or by any enactment cannot determine whether the order of Martins J. in Suit No. ID/1082/90 was illegal or not.

The main contention of the Appellant in Suit No. ID/3228/94 between MRS. TITILAYO COLE VS. REV. CLM FAJEMIROKUN AND OTHERS is a claim by her praying the Court to set aside the writ of attachment and sale of her property known as No. 23A Osipitan Street Bariga, Lagos which prayer has previously been made in Suit No. ID/1082/90 between REV. CLM FAJEMIROKUN VS. MRS. TITILAYO COLE determined and dismissed by OLA MARTINS J.

Certain admissions or claims have been made by the Appellant herein requiring no evidential proof. These were the entire set of facts and circumstances necessary for her to prove and succeed in Suit No. ID/3228/94. I agree with the learned counsel for the respondents that these set of facts and circumstances have been adjudicated

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upon in a previous Suit No. ID/1082/90 between REV. CLM FAJEMIROKUN VS. MRS. TITILAYO COLE. I shall now come to the similarities set of facts and circumstances in both Suits.

First to those admissions made by the Appellant herein. In paragraph 5 of her Statement of Claim as plaintiff she avers as follows:-

“That Plaintiff avers that on 25th March 1992 judgment was given against her in Suit No. ID/1082/90 in the sum of N169, 000.00 in favour of the 1st Defendant (2nd Respondent herein).”

This is a clear admission by the Appellant that judgment was obtained against her in that previous Suit No. ID/1082/90.

There is also admission by the Appellant in paragraph 7 of the Appellant’s statement claim that due to her inability to pay the judgment debt in that previous suit an order of attachment and sale was made against her immovable property. It is in paragraph 9 of her statement of claim that the appellant made further admission to the effect that she applied to set aside the order of Writ of attachment and sale, but the Court rejected and refused same. As for the date of sale of her property, appellant averred that it was on 23/11/94. As I have

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stated the foregoing set of facts and circumstances necessary for the Appellant to prove and succeed in Suit No. ID/3228/94, have formed the basis for the findings and adjudication in previous Suit No. ID/1082/90. The issue raised in Suit No. ID/3228/94 relate and concern the sale of the Appellant’s property described as No.23A Osipitan Street, Bariga, Lagos.

See also  Stephen Oteki V. Attorney-general Bendel State (1986) LLJR-SC

In paragraph 3.3 of the Appellant’s brief, it is contended that the issues raised in Suit No. ID/1082/90 had to do with the judgment debt of N169, 000 owed by her to the 2rd Respondent while the subject matter of suit No.ID/3228/94 has to do with the property situate at No.23A Osipitan Street, Bariga, Lagos.

This contention is misconceived. The issue of the attachment and sale of the Appellant’s property arose and was accordingly adjudicated upon by the learned trial Judge in Suit No. ID/1082/90. The Appellant’s motion therein to set aside the writ of attachment and sale was dismissed by the said Judge.

The case of the 1st Respondent herein is that the issue of the setting aside of the writ of attachment and sale of the Appellant’s immovable property has been decided in Suit No.

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ID/1082/90.

The fact that the Appellant had filed Suit No. ID/3228/94 which in substance is challenging the sale of her immovable property ordered by writ of attachment made in previous suit No. ID/1082/90 alleging fraud in the conduct of sale this will not confer jurisdiction on the trial Court under any guise, when in fact it has none. I agree with the learned Counsel for the Respondents that the eventual success of the Appellant in suit ID/3228/94 will fundamentally erase and indeed affect the decision already taken in Suit No. ID/1082/90.

Where a Court of competent jurisdiction has finally settled a matter in dispute between parties, neither party or privy may relitigate that issue as under the guise of bringing a fresh action, since the matter is said to be res judicata. The judgment in Suit No. ID/1082/90 is a final judgment of a competent court, which is a judgment in rem. The finding of Martins J. in Suit No. ID/1082/90 is binding on the Appellant in this case and estops her from raising in Suit No. ID/3228/94 the issue that have been finally decided in that earlier case see: K FLOW FARM INDUSTRIES LTD V. UNIVERSITY OF IBADAN (1993)

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NWLR (Pt.290) 719 at 724.

The learned Judges of the High Court of a State have equal powers and coordinate jurisdiction. See Section 6 of the High Court laws of Lagos State 1990 and Section 270 of the 1999 Constitution (as amended).

A Court of co-ordinate jurisdiction has no constitutional power to sit as an appellate Court in another case and review and/or adjudicate on a decision or order made by another Court of the same hierarchy. See: CHIEF GANI V. A-G LAGOS STATE No. 1 (1989) 3 NWLR (Pt.112) 707 at 774 where the Court held:

“The presumption has always been that the decisions of a superior Court are within jurisdiction and are correct until the contrary is proved. It seems to me that even if the decision of the superior Court is a nullity, the only proper way of challenging such decision must be by an application before the very Court which tried the case or by an application to the appropriate appellate Court even if the judgment of Longe J. were d nullity the proper way to set it aside is by an Appeal not be a review before a Court of coordinate jurisdiction …… it seems to me that, in view of the provision of the Constitution, which

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carefully shores jurisdiction to the various Courts …. Only the Court vested with the particular jurisdiction can interfere with the decision of another Court.”

The ruling of the trial Court that it has jurisdiction to entertain the present suit is due to the averments of fraud contained in the statement of claim, whereas the substance or issue in the suit is a challenge and a disguise to set aside the decision and auction carried out by virtue of an order made by a Court of coordinate jurisdiction in the earlier Suit No. ID/1082/90. This is not proper.

In view of the foregoing, the 1st Respondent can rightly raise issue estoppel to sustain plea of res judicata in the circumstances. I agree with the learned Counsel for the 1st Respondent that an order or judgment obtained to attach and sell immovable property is a judgment in rem and since it is an insolvency pronouncement it took away absolutely from the judgment debtor her legal character over the property which has been attached and sold. See: ADESINA OKE v SHITTU ATOLOYE AND ORS (1986) 1 NWLR (Pt. 15) 241 See further; Section 60(1) of the Evidence Act Cap 18, 2011

The Appellant is

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required by law to take prompt action to have the writ of attachment and sale of the said property set aside before the writ of possession could be issued to the 1st Respondent. Be it noted that the writ of Summons was issued on 23/12/94 while the sale took place on 23/11/94 more than 21 days after the sale had taken place. I agree with the Court below when it held on page 166 of the records thus:

“Even if the allegation contained in paragraph 22 of the Statement of Claim is proved, it cannot affect the sale of the property to the Appellant because he has acquired legal title over it by virtue of the Writ of Possession grunted to him. If the application had been made timeously, and the sale was eventually set aside the Appellant would be entitled to receive back the money he paid for the purchase while the 2nd Respondent will still be left with the remedy of executing the Judgment obtained in Suit No. 1082/90.”

It is on the foregoing premise that I resolve this issue in favour of the Respondents herein.

The Appellant’s stance on this second issue is that she is well within the right to have filed Suit No. ID/3228/94 as she has alleged fraud and

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the only way for her to be given an opportunity to table her allegation is to file a fresh suit notwithstanding that the sale was filed 21 days after the sale was concluded. Setting out copiously provisions of Sections 47- 50 of the Lagos state sheriffs and civil Process Law (which is in pari materia with the Sheriffs and Civil Process Act LFN (1990), learned Counsel for the Appellant has submitted that the law does not apply to the Appellant’s case in Suit No. ID/3228/94 contrary to the contention of the 1st Respondent’s Counsel. In buttressing this assertion, learned Counsel for the Appellant submitted that the learned trial Judge in Suit ID/1082/90 between REV. C. L. M. V. MRS.TITILAYO COLE made and order for attachment and sale of the Appellant’s property while Appellant’s case in Suit No. ID/3228/94 which gave rise to this appeal is challenging the fraudulent way the sale was conducted. It is submitted that Section 47 of the Sheriff and Civil Process Act is involved where there is an irregularity in the sale of attached property. Reliance was placed on the cases OKAFOR V. A-G ANAMBRA STATE (1991) 6 NWLR (Pt. 200) 656 at 662 and BANK OF THE NORTH LTD. V.

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NIGERIA BANK FOR COMMERCE AND INDUSTRY LTD AND OTHERS (1990) 5 NWLR (Pt. 150) 263 at 272. That the word “may” as appeared in Section 47 of the Act (Supra) is generally permissive and not mandatory.

Learned Counsel for the Appellant relying on the case of OLORIODE V. OYEBI (1984) 5 SC 1 at 24 has argued that since the Appellant’s case which is based on fraud has not yet been determined, the sale cannot be said to be absolute.

The contention of the learned Counsel for the 1st Respondent is that since the Appellant’s action in seeking to declare the sale of her property illegal, null and void is grounded on fraud, she should have applied to set aside the sale as provided under Section 47 of the Lagos State Sheriff and Civil Process Law.

It is also submitted by the learned Counsel that the only circumstance in which a writ of attachment and/or sale of property can be set aside is by an application to Court brought within 21 days of the sale, pursuant to Section 47 of the Sheriff and Civil Process Act before the crystallization of the title and/or interest of a third party bona fide purchaser for value without notice, otherwise the sale becomes

See also  The Attorney-general, Ogun State V. Alhaja Ayinke Aberuagba & Ors (1985) LLJR-SC

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absolute by virtue of Section 48 of the Sheriff and Civil Process Act.

Learned counsel for the 2nd Respondent submitted that the court cannot by a fresh suit or otherwise set aside sale which title has been concluded and a certificate of purchase issued out to a third party after 21 days. It is submitted that the failure of the Appellant to apply to set aside the sale of her property within 21 days of the sale of her property under S. 47 of the Sheriff and Civil Process Act being the enactment relating and governing the writ of attachment and sale of immovable property of a judgment debtor, has blocked her right of remedy.

The second issue, a portion of which has been dealt with in the first issue is whether the Court can by a fresh suit or otherwise set aside a sale which title has crystallized and a Certificate of purchase issued thereon, after 21 days from the date of sale to a third party bona fide purchaser for value without notice.

To recapitulate, the contention of the Appellant is that the Suit ID/3228/94 is outside the ambit of Section 47 of the Sheriff and Civil Process Act since her allegation is on fraud and forgery perpetrated by

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the Respondents during the sale of her property. That the case is not based on irregularity as contained in Section 47 of the said Act but on fraud and forgery. Besides, it is argued, the word “may” as appeared in the Act is permissive and not mandatory.

Section 47 of the said Law provides:

“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.”

Be it noted that Sections 48 – 50 of the said Law deal with the situation when the sale of immovable property becomes absolute, the return of deposit or purchase money and the issuance of Certificate of title. These sections state as follows:

“48. If no such application as is mentioned in Section 47 of this law is made, the sale shall be deem absolute. If such application be made and the objection be disallowed the Court shall make an

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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.

  1. Wherever the sale of immovable property is set aside the purchaser shall be entitled to receive back any money deposited or paid by him an account of such sale, with or without interest, to be paid by such parties and in such manner as it may appear proper to the Court to direct in each instance.
  2. After a sale of immovable property shall have become absolute in manner aforesaid, the Court shall grant a certificate to the person who may have been declared the purchaser at such sale, to the effect that he has purchased the tight, title and interest of the judgment debtor in the property sold, and such certificate shall be taken and deemed to be a valid transfer of such right, title and interest.”

Learned trial Judge, after referring to S. 47 to the Sheriff and Civil Process Act stated thus:

“The provision of Section 47 above is not as mandatory as the use of the word “may” depicts that the Plaintiff may or may not apply to the Court to set aside the said sale. She is not mandated to do so.

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It follows thereafter that should a Plaintiff elect not to apply to Court to set aside the order of sale he/she will not be bound by the above provision.”

Disagreeing with the foregoing interpretation of the Section 47 of the said law, the Court below had this to say:

“The application to set aside the sale must be made timeously otherwise the fraudulent party acquires good title which he can transfer to innocent Purchaser for value… It is necessary to point out that Suit No. ID/3228/94 has not taken off the ground. The issue is whether in view of Section 47 of the Sheriff and Civil Process Law, any party who wishes to impugn the sale of immovable property must apply to Court to set the sale and if any other process is token it will be defeated by the plea of res judicata.”

In BANK OF THE NORTH LTD v. NIGERIAN BANK FOR COMMERCE AND INDUSTRY LTD AND 3 ORS. (1990) 5 NWLR (Pt.150) 263, the Court considering the provisions of Sections 47 and 48 of the Sheriff and Civil Process Law, Cap 123, Laws of Northern Nigeria (which is in pari materia with the Lagos State provisions on the matter) the Court below, inter alia, held that the only statutory

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provision upon which one can challenge or set aside a sale under an order of Writ of Attachment is by virtue of Section 47 of the Law. See also G. C. AKUNONU V. BEKAERT OVERSEAS AND 2 ORS. (1995) 5 NWLR (Pt. 393) p. 42 at 66. I agree and endorse this stance of the Court below.

In Suit No. ID/3228/94 instituted by the Appellant in the High court, she is challenging the attachment and sale of property conducted by the 3rd Respondent herein under the Sheriff and Civil Process Law Lagos State and Judgment Enforcement Rules which governs and regulates the enforcement of judgment and all issues related to and arising from judgment enforcement.

The failure on the part of the Appellant to set aside the sale of her property within 21 days of the sale of her property under S. 47 of the Act (supra) has exposed her as an indolent party who has not come to Court with clean hands.

Consequently, the provisions of Sections 48 and 50 of the Law reproduced above, become effectual. She lost the armour provided for in the said S. 47 of the Act. She failed to utilise same as a “saving grace and anchor” to salvage her immovable property, the subject of a writ of

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attachment. It is too late in the day to cry over spilt milk. It is in view of the foregoing that the Court below in its lamentation concluded at page 166 of the records thus:

“I agree with the submissions of the Appellant’s Counsel that the order of Writ of Attachment and sale of the Plaintiff’s immovable property is a judgment in rem and since it is on insolvency pronouncement, it took away absolutely from the Judgment Debtor his legal character over the property which was attached and sold. See: ADESINA OKE VS. SHITTU ATOLOYE AND ORS. (1986) 1 NWLR (Pt.15) 241. That is why the Plaintiff needed to take prompt action to have the same set aside before the Writ of Possession could be issued to the Appellant. The Writ of summons was issued on 24/12/94 while the sale took place on 23/11/94. This is more than 21 days after the sale had taken place. Even if the allegation contained in paragraph 22 of the Statement of Claim is proved, it cannot affect the sale of the property to the Appellant because he has acquired legal title over it by virtue of the Writ of Possession granted to him. If the application had been made timeously and the sale eventually set

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aside, the Appellant would be entitled to receive back the money paid for the purchase…….”

In view of the foregoing I consider this appeal as lacking in merit and it is accordingly dismissed, while the decision of the Court below is affirmed. I award costs of N100, 000 against the Appellant but in favour of the 1st and 2nd Respondents jointly.


SC.142/2006

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