ALH. TIJANI MOHAMMED DANMALLAM v. MRS. R. A. IDAKULA
(2014)LCN/7690(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of April, 2014
CA/J/231/2002
RATIO
EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN A CIVIL MATTER
The burden was on the Appellant to prove that there was indeed the sale of the property by Public auction on 27/12/1991 and that he bought same.
“The burden of proof in a civil matter such as this is on the party who alleges the affirmative. That party could be the Plaintiff or the defendant, depending on the state of the pleadings. In other words, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side. While the first burden is on the party who alleges the affirmative in the pleadings, the second burden, the evidential burden, lies on the adverse party to proof the negative”
Per Niki Tobi JSC in ONYENGE V. EBERE (2004) 13 NWLR (PT. 889) 20 at 37. per. CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A.
COMMERCIAL LAW: PUBLIC AUCTION SALE; THE EFFECT OF A PUBLIC AUCTION SALE THAT IS IRREGULAR
Once it is proved that there were irregularities in the Public Auction sale, the issues as to whether or not the Respondent complied with Section 47 of the Sheriffs and Civil Process Act becomes irrelevant and of no moment. The reason is that once a Public Auction sale is irregular, it becomes irregular for all intends and purpose. Compliance or otherwise with the provisions of the said Section 47 of the Sheriffs and Civil Process Act cannot and is not capable of curing the irregularity. Section 47 of the Sheriffs and Civil Process Act become relevant and could be invoked when there is proper service of the date of the Public Auction on a party, in this case the Respondent. Throughout the proceedings at the trial Court there was no cogent, concrete or convincing evidence to show that the new date of the Public Auction was communicated to the Respondent. The Circumstances surrounding this case make it unnecessary to invoke the said Section 47 of the Sheriffs and Civil Process Act. per. CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A.
Before Their Lordships
ALI ABUBAKAR BABANDI GUMELJustice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYAJustice of The Court of Appeal of Nigeria
Between
ALH. TIJANI MOHAMMED DANMALLAMAppellant(s)
AND
MRS. R. A. IDAKULARespondent(s)
CHIOMA E. NWOSU-IHEME (Ph.D), J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was the plaintiff at the lower Court in an action he instituted against the Respondent as defendant claiming the following reliefs:
1) The sum of N80,000.00 arrears of mesne profit for being in use and occupation of the property situate at plots 15/16 Miango Road, Jos, Plateau State from the 27th day of December, 1991 to the date of filing the action.
2). The sum of N50,000.00 from the date of filing this suit against the Defendant until delivery thereof to the Plaintiff, the property situate and lying at plots 15/16 Miango Road, Jos, Plateau State, for being in use and occupation of the said property.
3). An order of Court that the defendant delivers up the property situate and lying at plots 15/16 Miango Road, Jos, Plateau State now being withheld by the defendant.
Pleadings were duly filed and exchanged. The matter went for trial before Damulak J, at the end of which the court entered Judgment for the Respondent and dismissed the claim of the appellant. This appeal is predicated on that Judgment.
Counsel for the Respondent Ugwuala Esq raised a preliminary objection that this appeal be struck out for being incompetent. He contended that both the original and amended Notices of Appeal and brief of argument were signed by Dr. S.S. Shikyil as solicitor to the Appellant.
That at all material time to this appeal, Professor S.S. Shikyil was a full time staff of the University of Jos where he is a senior Lecturer and Head of Department.
He argued that while Professor S. S. Shikyil remains so employed with the University of Jos an educational Institution fully owned and financed by the Federal Government of Nigeria, he is a public officer within the meaning of the word in the Constitution, by the provisions of Section 177, 318 Fifth Schedule parts I and II of the 1999 Constitution.
That being a Public Officer, Professor S. S. Shikyil is not entitled to engage in the Private Practice of the Legal Profession and as such cannot, while he remains in the full time employment of the University of Jos, validly sign the Notice of Appeal or other processes on behalf of the Appellant as a Legal Practitioner.
He submitted that having signed the Notice of Appeal in this matter where he is not entitled to Private law Practice, the said Notice of Appeal and other processes filed become null and void.
He cited FIRST BANK OF NIGERIA PLC & ANOR V. MAIWADA (2003) FWLR (PT. 151) 2001 AT 2014 – 2015 C – C.
NEW NIGERIA BANK PLC V. DENCLAG LTD. & ANOR. (2005) 4 NWLR (PT. 916) 549 AT 574.
JUSTICE F.O.M. ATAKE V. CHIEF NELSON A. AFEJUKU (1994) 9 NWLR (PT. 368) Page 379 at 427.
In his reply contained in the appellant’s amended reply brief, learned counsel for the Appellant professor S. S. Shikyil argued that any allegation that a public officer has committed a breach of or has not complied with the provisions of the code of conduct should be made to the Code of Conduct Bureau established by the Constitution. That this Court has no original jurisdiction with the issue of breach of Code of Conduct for Public Officers.
He contended that where a prima facie case of breach of Code of Conduct is established against a Public Officer, only the Code of Conduct Tribunal has original jurisdiction. That this Court has only appellate jurisdiction relating to the issue raised in the Preliminary Objection by virtue of the provisions of paragraph 18(4) of the fifth Schedule part I to the 1999 Constitution.
He argued that the applicant has no locus standi to raise the issue. That only the Code of Conduct Bureau has the locus standi to initiate an action in the Code of Conduct Tribunal against a Public Officer accused of contravening any of the provisions of the Code of Conduct under Section 172 and the Fifth Schedule to the 1999 Constitution.
Counsel therefore submitted that the Notice of Appeal and other processes filed in this Court by him (as Counsel for the appellant) are competent and therefore this Court has jurisdiction to entertain the appeal on the merits. He urged the Court to dismiss the Preliminary Objection.
It is note worthy that the right to practice Law in Nigeria is governed by the Legal Practitioner’s Act. Section 2(1) of the Legal Practitioner’s Act provides that a person shall be entitled to practice as Barrister or Solicitor if his name is on the role of legal Practitioners.
Once the name of a Legal Practitioner is on the role of legal Practitioners, he is entitled to practice law in Nigeria and no Court has the power to refuse him right of audience in Court except as provided for under Section 8(2) of the Legal Practitioners’ Act.
Section 8(2) of the Legal Practitioners’ Act provides thus:
“8(2) No Legal Practitioner(other than such a person as is mentioned in sub Section 3 of Section 2 of this Act) shall be accorded the right of audience in any Court in Nigeria in any year, unless he has paid to the registrar in respect of that year a Practicing fee….
(a) In the case of a Senior Advocate of Nigeria of N200.00
(b) In the case of a person of 15 or more years standing as a Legal Practitioner at the beginning of that year not being a Senior Advocate of Nigeria of N100.00
(c) In the case of a person of more than 10 but less than 15 years standing as a Legal Practitioner at the beginning of year not being a Senior Advocate of Nigeria of N75.00
(d) In the case of a person of more than 5 but not more than 10 years standing as a Legal Practitioner at the beginning of that year of N40.00 and
(e) In any other case of N20.00.”
The complaint of the Applicant does not fall within the circumstances under Section 8(2) of the Legal Practitioners Act. There is no provision in Section 8 of the Legal Practitioners Act that when a Legal Practitioner is in breach of the Code of Conduct for Public Officers he cannot validly sign any Court process.
The punishment to be imposed on a Public Officer are clearly and explicitly spelt out in paragraph 18(2)(a) to (c) of the Fifth Schedule to the 1999 Constitution. There is nowhere in paragraph 18 of the Fifth Schedule Part I of the 1999 Constitution, where it is provided that any act done by a Legal Practitioner who is a Public Officer in contravention of the said Code of Conduct shall be incompetent.
The contention of learned Counsel for the Respondent that the Appellant’s Counsel breached the provision of paragraph 2(b) of Part I of the Fifth Schedule to the 1999 Constitution and to that extent, rendered the Court processes filed in this appeal incompetent and also rendered the appeal itself incompetent is totally misconceived. The Preliminary Objection is unmeritorious and is accordingly overruled.
On the appeal proper, the Appellant formulated two issues for determination:
(1) “Whether the lower Court was right to set aside the sale conducted on 27/12/1991 on the ground that there were irregularities in the conduct of the sale.
(2) Whether the lower Court was right to dismiss the Plaintiff’s claims on the basis that the Plaintiff did not establish or show that he had a better title to the said property than the defendant.”
The Respondent also formulated two issues for determination they read:
(1) “Was the learned trial Court right in dismissing the Appellant’s case in the circumstances of this matter?
(2) Was the learned trial Court right in setting aside the purported sale of the property in issue in this matter?
The issues formulated by Counsel for the Appellant as well as that formulated by Counsel for the Respondent are very similar even though couched differently and could be compressed into one single issue thus:
“Whether the lower Court was right to have set aside the sale conducted on the 27/12/1991 and proceeded to dismiss the claim of the Plaintiff”.
In his argument learned Counsel for the Appellant contended that there was no application by the Respondent within 21 days to set aside the sale for any material irregularity in the conduct of the sale as required by Section 47 of the Sheriffs and Civil Process Act. He contended that the Respondent did not counter claim seeking for an order that the sale be set aside.
Counsel submitted that the lower Court granted the Respondent a relief that she did not seek and that at the time the lower Court set aside the sale, the sale had become absolute by virtue of the provisions of Section 48 of the Sheriffs and Civil Process Act. He submitted that the Appellant established that he purchased the property in question as can be seen from exhibits ‘A’ ‘8’ and the evidence of PW1 and PW2 and submitted that the learned trial Judge wrongly evaluated and ascribed probative value on the evidence before him and urged the Court to set aside the said Judgment.
In his reply, learned Counsel for the Respondent contended that the Appellant could not prove the venue of the alleged Public auction where he allegedly bought the Respondent’s property.
He argued that the appellant could not prove by credible evidence that there was a public auction of the property in issue on 27/12/1991, as there was no evidence to show that there was a public Auction fixed for that date. Counsel submitted that there was also doubt as to the property bought by the Appellant and submitted that the provisions of Section 47 of the Sheriffs and Civil Process Act do not apply to the circumstances of this case and urged the Court to affirm the Judgment of the trial court as it meets the justice of the case.
In determining this issue, it is very important to ascertain whether or not there was a sale of the Respondent’s property in question on 27/12/1991 or at all.
The burden was on the Appellant to prove that there was indeed the sale of the property by Public auction on 27/12/1991 and that he bought same.
“The burden of proof in a civil matter such as this is on the party who alleges the affirmative. That party could be the Plaintiff or the defendant, depending on the state of the pleadings. In other words, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all was given on either side. While the first burden is on the party who alleges the affirmative in the pleadings, the second burden, the evidential burden, lies on the adverse party to proof the negative”
Per Niki Tobi JSC in ONYENGE V. EBERE (2004) 13 NWLR (PT. 889) 20 at 37.
The Appellant in his amended statement of claim paragraph 3 which is on page 14 of the record pleaded thus:
“3. The Plaintiff avers that sometime in December 1991 at the High Court of Justice Jos, there was a Public auction of the property known and situate at Plots 15/16 in satisfaction of the Judgment debt in the case of DORCAS RICHARDS V. AMOS BEZ IDAKULA IN Suit NO PLD/J334/89”
At page 55 of the Records a witness for the prosecution PW2 testified that the same public auction took place along Miango Road Jos and not the High Court of Justice Jos as pleaded by the Appellant. PW2 stated thus:
“I was in the office on the date of the sale.
I would not know the venue of the sale because the sale was done by the Chief Bailiff. I presume the venue of the sale was at Miango Low-Cost Area…”
The Appelllant (as Plaintiff in the Court below) testified as PW4. Contrary to his claim in paragraph 3 of his amended statement of claim stated thus:
“On 27/12/1991, I was going to my friend’s house and on my way I heard Auction Auction and they were ringing a bail (sic) My friend’s name is Jerry and his house is along Miango Road, Jos. I went to the scene of Auction. They people (sic) were binding (sic) and I was the highest binding (sic) and the house was sold to me” See 60 – 61 of the Record.
It is obvious that the pleadings of the Appellant and the evidence led as regards the venue of the alleged sale are clearly at variance.
The Respondent on the other hand through her witnesses, DW1, DW2 and DW4 led evidence to show that no Public auction took place in the premises of the property in issue on 27/12/1991. At pages 65 – 66 of the Record, DW1 testified thus:
“The Action sale did not take place on 12/12/1991 because we were all at home…
On 27/12/1991 we were all at Nos 15 and 16 Miango Road, Jos receiving friends and visitors because it was Christmas period. I was in the house between 9:00a.m. and 4:00pm. As far as I know my house has never been sold by Auction at any given time.”
DW2 and DW4 testified to the effect that there was no public Auction on the said property on 12/12/1991, 27/12/1991 or at all.
The said Public Auction was said to have been conducted by a Registered Auctioneer named Alhaji Danbaba. The said Danbaba was not called to testify concerning the venue of the auction sale or the exact date of the auction sale.
It is obvious that the said auction sale did not take place on 12/12/1991. At pages 68 – 69 PW2 stated thus:
“…The date and time of the Auction on the Poster in Red ink is in my writing….I now confirm that the date I wrote on Exhibit ‘F’ was not the date the sale took place I cannot remember what happened on 12/12/1991 that-the sate did not take place….. I cannot remember whether I took steps to ensure that the new date was brought to the notice of the defendant. Normally when new posters are made, the parties are notified. I cannot be sure of the uncertainty (sic) of the Defendant being served with the new poster.”
There is no clear evidence that the new poster or Auction Notice of the 27/12/1991 was served on parties. It is therefore not clear whether the public auction took place on the 12/12/1991 or 27/12/1991 or at all. The Chief Bailiff P.W.1 at page 50 of the Records stated thus:
“On 27/12/1991 we served the Defendant in the case with the Auction Notice fasted (sic) in the High Court Notice Board Seven (7) days before the Action took place.”
A copy of the Auction Notice was never produced. It was on the strength of this same Auction Notice that PW1 said the Auction sale of the 27/12/1991 was conducted.
The Appellant’s Counsel dwelt on the fact that the trial Court ought not to have made the order it made since the Respondent did not counter claim. It is indeed true and obvious that the Respondent did not put up any Counter claim. The Respondent’s defence was that she was never served the new poster or the Auction Notice and that no Public Auction took place in her premises on the 27/12/1991 or any other date.
Appellant also made heavy weather on the fact that the Respondent did not comply with Section 47 of the Sheriffs and Civil Process Act.
Once it is proved that there were irregularities in the Public Auction sale, the issues as to whether or not the Respondent complied with Section 47 of the Sheriffs and Civil Process Act becomes irrelevant and of no moment. The reason is that once a Public Auction sale is irregular, it becomes irregular for all intends and purpose. Compliance or otherwise with the provisions of the said Section 47 of the Sheriffs and Civil Process Act cannot and is not capable of curing the irregularity. Section 47 of the Sheriffs and Civil Process Act become relevant and could be invoked when there is proper service of the date of the Public Auction on a party, in this case the Respondent. Throughout the proceedings at the trial Court there was no cogent, concrete or convincing evidence to show that the new date of the Public Auction was communicated to the Respondent. The Circumstances surrounding this case make it unnecessary to invoke the said Section 47 of the Sheriffs and Civil Process Act.
It is obvious that those clothed with the responsibility of conducting the public auction sale were so incompetent, or deliberately decided to be so that they ended up turning a Public Auction sale into a private business and ended up making a mockery of a very serious business such as a Public auction sale. This unfortunately has resulted in fatal consequences for the Appellant who invested his money on such gross irregularity.
The learned trial Judge at page 116 of the Record stated thus:
“…Thus assuming that the sale of the house by Public action took place on 27/12/1991, there is evidence that the Defendants were not aware of the said sale. I therefore find that the Defendant was not served with the Notice of sale of the house and this amounts to an irregularity in the sale of the said property to Plaintiff”
Again at page 119 of the Record the Court had this to say:
“In the light of this I further find that the purported Public auction held on the 27/12/1991 is shrouded in doubt which seriously affected the validity of the sale”.
Also at page 127 the learned trial Judge made the following observation:
“In the circumstances, I find that the Plaintiff has not convincingly proved his claim, against the defendant. He has not established a possessory title to the property in question hence he is not entitled to the recovery of the said property. The Plaintiff has not shown that he has a better title to the said property than the defendant.
The option left for this Court is to dismiss the Plaintiff’s claim.
The only remedy left for the Plaintiff is to receive back any money he paid from the Registry of the High Court, Jos on account of the aborted sale under Section 49 of the Sheriffs and Civil Process Act.”
The above is clear and succinct. This Court has no justification to distort or reverse it.
The sole issue is therefore resolved against the Appellant in favour of the Respondent. This appeal is dismissed. The Judgment of the trial Court is affirmed. I award N30,000.00 costs to the Respondent.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now, the lead judgment of my learned brother Nwosu-Iheme, JCA. I fully agree with all the reasonings and conclusions. I too see no merit in this appeal and would accordingly dismiss it. I abide by all the consequential orders in the lead judgment.
IBRAHIM SHATA BDLIYA, J.C.A.: I was afforded an opportunity by my learned brother, NWOSU-IHEME, J.C.A. to read the leading judgment before today. I am in complete agreement with my learned brother that the appeal lacks merit. I dismiss same accordingly. Judgment of lower court is affirmed. I abide by the order made on costs.
Appearances
Z. M. Lashom Esq.For Appellant
AND
H. N. Ugwuala Esq. with L. S. L. AlbarkaFor Respondent
