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  • Arto Pharmaceutical v. Gamji Bank (Nig.) Plc
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  • 2013-08-12
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Arto Pharmaceutical v. Gamji Bank (Nig.) Plc

ARTO PHARMACEUTICAL AND ANOR.

V

GAMJI BANK OF NIGERIA PLC AND ORS.

COURT OF APPEAL

( SOKOTO DIVISION )

AHMAD OLAREWAJU BELGORE JCA ( Presided )

TUNDE OYEBANJI AWOTOYE JCA ( Read the Lead Judgment )

JAMES S. ABIRIYI JCA

CA/S/158/2009

MONDAY, 4 MARCH 2013

APPEAL - Ground of appeal - What is - Purport of

JUDGMENT AND ORDERS - Judgment debtor - Immovable property of - Notice of attachment of - Right of thereto - Proceedings for  Inapplicability of ex parte application in - Failure to serve Effect of - Time limit to set aside defective execution Inapplicability of - Section 43, Sheriffs and Civil Process Law of Sokoto State, Cap. 44 considered

PRACTICE AND PROCEDURE - Judgment debtor - Immovable property of - Notice of attachment of - Right of thereto Proceedings for - Inapplicability of ex parte application in Failure to serve - Effect of - Time limit to set aside defective execution - Inapplicability of - Section 43, Sheriffs and Civil Process Law of Sokoto State, Cap. 44 considered

STATUTE - Sheriffs and Civil Process Law of Sokoto State, Cap. 44, section 43 - Judgment debtor - Immovable property of - Notice of attachment of - Right of thereto - Proceedings for Inapplicability of ex parte application to - Time limit to set aside defective execution - Inapplicability of

Issue:

Whether the trial court was right when it assumed jurisdiction and dismissed the claims of the appellants.

Facts:

The 2nd appellant and the 1st appellant were plaintiffs in the High Court of Sokoto State. They claimed that they were judgment debtors of the respondent bank. The 2nd appellant claimed that when he travelled to go and look for some money to offset the debt, the respondent bank auctioned his houses at giveaway prices without notice to him. They therefore prayed the lower court for declaratory reliefs that the purported public auction sale of the properties situate at Sokoto town, Rini Tawaye, Tudun Audu Area and Illela Motor Park Area is null and void as same was done in contradiction of Auctioneers Laws of Northern Nigeria and also in total disregard of subsisting court judgment and having been made at an undervalue. They also prayed for an order setting aside the purported sale to the 2nd respondent. The trial court dismissed the claims and not being satisfied, the appellants filed an appeal to the Court of Appeal. They contended that the trial court erred by holding that their failure to challenge the auction within the statutory required 21 days deemed same absolute and that they failed to give particulars of fraud alleged by them.

In determining the appeal, the Court of Appeal considered the following statute:

Sheriffs and Civil Process Law, sections 18, 43, 46 and 47

“18(1)In this part and in parts IV, V and VI;

“attached” includes distrained upon and seized;

“attachment” includes distress and seizure;

“court” includes the High Court and a Magistrate Court;

“the High Court” means the High Court of Sokoto State;

“Judge” means a judge of High Court;

“ judgment” includes “order’’;

“judgment creditor” means any person for the time being entitled to enforce a judgment;

“judgment debtor” means a person liable under a judgment; “order” includes an injunction, an order for the payment of costs by any party, and an order for the payment of a counterclaim by a plaintiff;

“process” means a formal written authority addressed to the sheriff for the enforcement of a judgment in manner provided by this law or prescribed, and includes “writ of execution” and warrant and order of arrest, commitment or imprisonment; “sheriff” includes deputy sheriff;

“writ of execution” includes writ of attachment and sale, writ of delivery, writ of possession, and writ of sequestration.

(2) Nothing in this part or in parts IV, V or VI shall be construed to authorise the service or execution outside the state of the process of a court.

43. If sufficient movable property of the judgment debtor can be found in the state to satisfy the judgment and costs and the costs of execution, execution shall not issue against his immovable property, but if no movable property of the judgment debtor can with reasonable diligence be found in the state, or if such property is insufficient to satisfy judgment and costs and the costs of execution, and the judgment debtor is the owner of any immovable property, the judgment creditor may apply to the court for a writ of execution against the immovable property of the judgment debtor, and execution may issue from the court against the immovable property of the judgment debtor in accordance with the provisions of this law, and any rules made thereunder:

Provided that where the judgment has been obtained in a Magistrate Court execution shall not issue out of the Magistrate Court against the immovable property but shall issue out of the High Court upon the conditions and in the manner prescribed.

  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 46 be made, the sale shall be deemed absolute. If such application be made and the objection be disallowed, the court shall make an 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.”