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  • Yusuf v. Salawudeen
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  • 2012-08-13
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Yusuf v. Salawudeen

ALHAJI ABDULGANIYU YUSUF

V

MRS. LATIFAT SALAWUDEEN

MALLAM ISA HASSAN LIMAN MAKERA

( Substituted for Mallam Hassan (Deceased ))

DEPUTY SHERIFF, HIGH COURT, KADUNA

COURT OF APPEAL

( KADUNA DIVISION )

MARY U. PETER-ODILI JCA ( Presided and Read the Lead Judgment )

JOSEPH TINE TUR JCA

OBANDE F. OGBUINYA JCA

CA/K/59/2005

MONDAY, 28 MARCH 2011

COURT - Unsolicited reliefs - Court granting - Impropriety of

INTERPRETATION OF STATUTES - Plain and unambiguous words of statutes - Duty on court in interpreting

PRACTICE AND PROCEDURE - Extension of time - Applicant seeking -   Duty thereon

PRACTICE AND PROCEDURE - Mandatory stipulations of statutes Duty on court to enforce

PRACTICE AND PROCEDURE - Plain and unambiguous words of statutes - Duty on court in interpreting

PRACTICE AND PROCEDURE - Unsolicited reliefs - Impropriety of court granting

Issue:

  1. Whether the learned judge of the lower court was right in setting aside the auction sale pursuant to an application filed twenty-eight (28) days after the auction and without an application suo motu to extend the time within which the applicant shall file the same.
  2. Whether the purported non issuance of forms 38, 40 and 41 amounted to material irregularity causing substantial injury as required by section 47 of the Sheriff and Civil Processes Act, Cap. 407, Laws of the Federation of Nigeria, 1990.

Facts:

The 1st respondent obtained a monetary judgment  against the 2nd respondent from the defunct Upper Area Court, Daura Road, Kaduna on 1 November 1997. An appeal by the judgment debtor to the appellate session of the Kaduna State High Court was unsuccessful as the judgment of the Upper Area Court was upheld.

In a bid to enforce the judgment, the 1st respondent filed an originating summons pursuant to section 144 of the Sheriffs and Civil Process Act, 1990 before the High Court of Kaduna State seeking, inter alia, leave to attach and sell the 2nd respondent’s landed property. This was granted, and the property was auctioned. The appellant’s bid of N300,000.00 (three hundred thousand naira) was accepted and the property sold to him.

The appellant applied to the court seeking an order ejecting the 2nd respondent from the property. The 2nd respondent filed an application for an order setting aside the ruling of the court and an order setting aside the auction sale.

The court accordingly set aside the auction sale on the grounds of procedural irregularity. The 2nd respondent died in the course of proceedings and was substituted with his son.

Aggrieved, the appellant appealed to the Court of Appeal.

In determining this appeal, reference was made to sections 46 - 52 of the Sheriffs and Civil Process Act which provides as follows:

“46(1) Every house or other building belonging to the owner of the land on which it stands shall be dealt with as immovable property and may be taken in execution accordingly, and where any house or other building is on the land which is not the property of the owner of the house or other building, or on land held under the provisions of the Land Use Act, all the right, title and interest of the owner of the house or other building on the land on which the house or building is erected may be sold, together with the house or other building, and the same shall be dealt with as immovable property, subject to the provisions of the said Act.

(2) In any such case as last aforesaid any rent reserved by such lease, certificate of occupancy or instrument and remaining unpaid shall be recovered as in section 35 of this Act.

  1. 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.
  2. If no such application as is mentioned in section 47 of this Act is made, the sale shall be deemed absolute. If such application be made and the objection be disallowed the court shall make an order affirming the sale; and in like manner, if the objection be allowed, the court shall make an order setting aside the sale for irregularity.
  3. Where a sale of immovable property is set aside the purchaser shall be entitled to receive back any money deposited or paid by him on 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.
  4. After 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 right 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.
  5. If the property sold shall consist of a house, land or other immovable property in possession of a judgment debtor or some person on his behalf or of some person claiming under a title created by the judgment debtor subsequently to the attachment of such property, the court shall, on the application of the purchaser, order delivery thereof to be made by putting the party to whom the house, land or other immovable property may have been sold or any person whom he may appoint to receive delivery on his behalf, in possession thereof and, if need be, by removing any person who may refuse to vacate the same.
  6. If the purchase of any immovable property sold in execution shall, notwithstanding the order of the court, be resisted or obstructed in obtaining possession of the property, the provisions contained in section 28 of this Act relating to resistance or obstruction to the execution of process shall be applicable in the case of such resistance or obstruction.”