Setting Aside Sale of an Immovable Property Pursuant to an Order of Court
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 18th Day of December, 2020
Before Their Lordships
Nwali Sylvester Ngwuta
Musa Dattijo Muhammad
Chima Centus Nweze
Uwani Musa Abba Aji
Justices, Supreme Court
Alhaji Ameen Suleiman Mohammed
Suraj Garba Karaye Appellants
Alhaji Abubakar Mohammed Gwarzo Respondent
(Lead judgment delivered by Honourable Nwali Sylvester Ngwuta, JSC)
“Section 47 of the Sheriffs and Civil Process Law of Kano State provides a remedy which the Appellants, in their wisdom or lack of it ignored to their costs. By that law Appellants had twenty-one (21) days from the date of the sale complained of to apply to the court to set aside the sale.”
By a Deed of Legal Mortgage, a certain Musa Adamu obtained an overdraft facility from the defunct United Arab Bank in the sum of N250, 000.00 (two hundred and fifty thousand Naira). The facility was secured by two properties, one of which is a property situate at No. 93, Ibrahim Umar Street, adjacent BUK staff quarters, Kano and covered by a Certificate of Occupancy No. LKN/RES/RC/82/1790 (“the property”). Upon the default of Musa Adamu to service the loan, the bank instituted an action against him in Suit No. K/347/92 and obtained judgement against him. Subsequently, the property was sold to the Respondent on 3rd January, 1995 by an ex parte Order of court. The Respondent was issued a certificate of purchase in this regards.
However, while Suit No. K/347/92 was pending before the court, Musa Adamu sold the property to the 1st Appellant who put the 2nd Appellant in possession and instituted another suit, Suit No. K/258/1993. Judgement was delivered in the subsequent Suit No. K/258/1993 in the year 2000, by which the sale of the property to the 1st Appellant was upheld.
Further to the foregoing, the Respondent commenced this action via an Originating Summons at the High Court of Kano State seeking inter alia, a declaration that the judgement in Suit No. K/258/1993, delivered in the year 2000, is a nullity. At the conclusion of hearing, the trial court dismissed the Respondent’s suit and he appealed to the Court of Appeal. The Court of Appeal allowed the appeal and set aside the judgement of the trial court. Dissatisfied with the decision of the Court of Appeal, the Appellants appealed to the Supreme Court.
Issue for Determination
The following issue, as extrapolated from the issues formulated by the parties, was determined by the Apex Court –
“Whether the Court of Appeal was right in holding that the ex parte Order of attachment and consequent sale of the immovable property in this case was valid and subsisting when the Supreme Court of Nigeria has firmly established in the case of Leedo Presidential Motel Ltd v Bank of the North (1998) 10 NWLR (Pt. 570) 353 at Pp. 380 -381 and Alhaji Baba M. Saleh v Alhaji Shertima Monguno (2006) 15 NWLR (Pt. 1001) 26 that an order for attachment and sale of immovable property on the basis of an ex parte application is made without jurisdiction and is a nullity and all things done pursuant thereto a nullity”
Counsel for the Appellants argued that the ex parte application upon which the trial court granted the order for the attachment of immovable property is invalid and the consequent sale ought to be set aside. He relied on the cases of LEEDO PRESIDENTIAL MOTEL LTD v BANK OF THE NORTH (1998) 10 NWLR (Pt. 570) 353 at 380-381 and ALHAJI BABA M. SALEH v ALHAJI SHERTIMA MONGUNO (2006) 15 NWLR (Pt. 1001) 26.
In response, the Respondent’s counsel relied on the provisions of Section 15 of the Sheriffs and Civil Process Law of Kano State and argued that the Respondent acquired a good title to the immovable property sold pursuant to the Order of court.
Court’s Judgement and Rationale
By the decision of the apex court the Appellant who was aggrieved by the Order of sale made by the trial court ought not to have been made further to the ex parte application, ought to approach the court and pray that the Order be set aside. Their Lordships reasoned that it was improper to institute another action to challenge the Order. The conduct of the Appellants by failing to explore the procedure laid down for setting aside an Order of sale as in this instance, amounted to a waiver of their right to challenge the order for sale. The court relied on the decisions BEEIMES (NIG) PLC v UNEGBEDCEN (2012)15 NWLR (Pt. 1322) 31; and SEEAKSO MUHAMMADU BUHARI v ALL NIGERIA PEOPLES PARTY (ANPP) (2005) 8 MJSC 1.
Also, the Supreme Court held that by the provisions of ection 47 of the Sheriffs and Civil Process Law of Kano State, a remedy available to the Appellants was to apply to the court to set aside the sale within twenty-one (21) days from the date of the sale. The court observed that the Appellants ignored this remedy and by the operation of law, they lost their right to challenge the sale.
In addition, the court held that where matters involving the same parties and claims are raised contemporaneously in two or more courts, it is desirable and in the interest of justice that the matters be heard in only one of the courts to avoid multiplicity of proceedings on the same issues. The Supreme Court found that where two actions are filed one after the other and both actions are seeking for a relief common to both of them, the second action is clearly vexatious and calculated to irritate and annoy the adversary. Therefore, once the action is between the same parties, on the same subject matter, even if differently worded but with the same result, the suit filed later in time is an abuse of court process which is liable to be struck out – PDP v SHERIFF & ORS (2017) LPELR-42736 (SC) PP. 33-34, PARAS. A-E. The court held that the filing of Suit No. K/258/1993 during the pendency of Suit No. K/347/92 was an abuse of court process.
Dr. G.O.A. Ogunyomi with Ifeanyi Ndimego, Esq. and P.O. for the Appellants.
Kenneth Einmewe, Esq. for the Respondent.
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