SAGAMA CONSTRUCTION & ENGINEERING NIGERIA LIMITED & ANOR v. IFYSCO MANUFACTURING COMPANY LIMITED & ORS
(2018)LCN/12196(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/K/356/2016
RATIO
COURT AND PROCEDURE: NON COMPLIANCE WITH RULES OF COURT
“As also held by the Supreme Court in the case of Famfa Oil Ltd v. A/G Federation (2003) 18 NWLR (Pt. 852) P. 453 @ 476, Para F-G, Per Edozie JSC, any non-compliance with any rules of Court is prima facie an irregularity and not a ground for nullity unless such non-compliance amounts to a denial of natural justice. It is not very irregularity that automatically nullifies the proceedings, particularly where the irregularity did not in any way materially affect the merits of the case. A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered a miscarriage of justice. SeeFamfa Oil Ltd v. A/G Federation Supra @ P. 468, Para D-H per Belgore JSC (as he then was ); Egbo v. Agbara (1997) 1 NWLR (Pt. 481) P. 293 @ 312, Para E per Iguh JSC.” PER IBRAHIM SHATA BDLIYA, J.C.A.
COURT AND PROCEDURE: TO SEEK EXTENSION OF TIME
“The law is trite, in an application for an order to extent or enlarge the time to do an act which ought to have been done within a specified period, relevant materials ought to be placed before the Court for the proper exercise of its discretion when determining an application for enlargement of time. It is the applicant that has the burden of making such materials available. In other words, it is the duty of an applicant seeking for an enlargement of time to establish the merit of his application and not to rely on the weakness of the respondent’s case. See Alamieyeseigha v. F.R.N (2006) 16 NWLR (Pt. 1004) 1. It is the facts deposed to in the affidavit evidence that would hold relevant in giving the requisite information directing the exercise of discretion, which must be judicial and judicious. See SCOA (Nig.) Plc v. Omatshode (2009) 11 NWLR (Pt. 1151) P. 106 @ 112.” PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
1. SAGAMA CONSTRUCTION & ENGINEERING (NIG) LTD
2. ALHAJI ALI NUHU Appellant(s)
AND
1. IFYSCO MANUFACTURING COMPANY LIMITED
2. SUPREME SYSTEMS CONSULTANT LIMITED
3. UMAR BALEWA
4. TAJUDEEN MOHAMMED
5. THE DEPUTY SHERIFF, KADUNA STATE HIGH COURT OF JUSTICE
6. ALIYU ABDULWALIYU Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the Kaduna State High Court of Justice (the lower Court) in Suit No. KDH/KAD/1125/2014 delivered on the 7th day of April, 2016. The historical background facts of this appeal are simple and straightforward. The 1st respondent obtained judgment against the 2nd, 3rd, and 4th respondents in Suit No. KDH/KAD/1125/2014, at the High Court of Justice (No. 4), Kaduna State. They applied for an order to attach and sale property situate at No. L. 7 River Close, Kabala Costain, Kaduna. The appellants who resided in Abuja also owned property situate at No. L. 5 Constitution Road, New Extension, Kaduna, Kaduna State. The property that was eventually attached and auctioned is that situate at No. L. 5 Constitution Road, New Extension, Kaduna; not the property at No. L. 7 River Close, Kabala Costain, Kaduna.
By the time the appellants became aware of the attachment and auction of the property, at No. L. 5 Constitution Road, New Extension, Kaduna the durational time of Twenty one (21) days had elapsed (expired).
They therefore brought an application by Motion on Notice filed on the 4th day of February, 2016 seeking for the following orders.
(a) AN ORDER of this Honourable Court extending the time within which the Applicants may apply for an Order of Court setting aside the Auction/Sale of the property situate at No. L5 Constitution Road, New Extension, Kaduna, Kaduna State on the 29th of December, 2015. (b) AN ORDER of this Honourable Court setting aside the Auction/Sale made on the 29th of December, 2015 of the property situate at No. L5 Constitution Road, New Extension, Kaduna State.
(c) AND for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”
The grounds upon which the application was predicated are thus:
(a) That the property which was referred to in the Writ of Attachment and auction is that situated at L7 River Close Kabala Costain, Kaduna; while the Applicant’s property which was Auctioned is located at No. L5 Constitution Road, New Extension, Kaduna, Kaduna State.
(b) That the Applicants’ property located at No. L5 Constitution Road, New Extension, Kaduna, Kaduna State is well covered with a Certificate of Occupancy and Site layout that situates the Applicant’s property to be at No. L5 Constitution Road, New Extension, Kaduna, Kaduna State and not L7 River close Kabala Costain, Kaduna.
(c) That the said property lying and situate at No. L5 Constitution Road, New Extension Kaduna State, is a subject of pending litigation at the Kaduna State High Court of Justice, Kaduna with Suit No. KDH/KAD/625/2015 involving the 2nd Applicant and the 3rd Respondent on issues of title of the property.
(d) That the 1st and 2nd Applicants are the lawful owners of the Property lying and situate at No. L5 Constitution Road, New Extension Kaduna, Kaduna State having lawfully acquired and divested the original title documents, and effective possession from the 2nd and 3rd Respondents since the year 2014.
(e) That the Applicants were misdirected by the address set out in the notice of auction referred to L7 River Close Kabala Costain, Kaduna and not the Applicant?s property at No. L5 Constitution Road, New Extension Kaduna.”
After a consideration of the application, the affidavit, counter-affidavit and addresses of learned counsel to the parties, the learned judge of the lower Court delivered his ruling on the 7th of April, 2016, wherein, the application was refused and dismissed. The appellants, aggrieved by the ruling, filed a Notice of appeal challenging the dismissal of their application. The appellants filed their brief of argument on the 15th of February, 2017, with a sole issue for determination on page 6 thereof, which is thus:
“WHETHER THE LOWER COURT WAS RIGHT IN REFUSING THE APPELLANTS? APPLICATION DATED 4TH FEBRUARY, 2016 ON THE FAILURE OF THE APPELLANTS TO CHALLENGE THE AUCTION SALE WITHIN 21 DAYS EVEN THOUGH NO WRIT OF ATTACHMENT AND AUCTION NOTICE WERE ISSUED OVER THE APPELLANTS? PROPERTY SITUATE AT NO. L.5 CONSTITUTION ROAD, NEW EXTENSION, KADUNA.”
The 5th respondent filed brief of argument on the 23rd day of August, 2016, which was, with an order of Court, deemed duely filed on the 1st of November, 2018, with a sole issue for determination, on page I thereof, which is thus:
“Whether, in the circumstances of the application before it, the Court below rightly refused the Appellants’ application to set aside the auction sale of the immovable property.”
The 6th respondent filed brief of argument on the 16th of March, 2012, containing a sole issue for determination on page 7, thereof, which is thus:
WHETHER the trial Court was justified in refusing to set aside the auction sale having regard to the processes filed and circumstances of the case
The 1st, 2nd, 3rd, and 4th respondents did not file brief of argument. A Reply brief to the arguments contained in the 6th respondent’s brief of argument was filed on the 6th of March, 2017. The issues contained in the appellants’, 5th and 6th respondents’ briefs of argument are not dissimilar in that same are dovetailing, interwoven and intertwined such that the resolution of one would also resolve the others. For this reason, the issue for determination contained in the appellants’ brief of argument would be taken and resolved in the determination of the appeal, after all it is they that have appealed against the ruling of the lower Court delivered on the 7th of April, 2016.
RESOLUTION OF SOLE ISSUE
B. O. Ebeghi Esq., of learned counsel who settled the appellants’ brief of argument, did submit that there was no order made by a Court of law to attach, auction and or sale property No. L. 5 Constitution Road, New Extension, Kaduna, on the 5th of August, 2015. That the order made on the said day was in respect of property No. L. 7 River close, Kabala Costain, Kaduna, as could be seen on pages 83 and 84 of the printed record of appeal. It is learned counsel’s further contention that since no order of attachment was made in respect of property No. L. 5, Constitution Road, New Extension Kaduna, its attachment, auction and disposal by the 5th respondent was unlawful, null and void. That in view of the foregoing adumbration, the learned judge of the lower Court ought to have granted the application of the appellants because the provisions of Sections 47 and 48 of the Sheriffs and Civil Process Act, only applies when there has been mere irregularity in the attachment, auction or disposal of the property pursuant to an order of Court.
The principle of law espoused in the cases of Alhaji Nakyantu v. Alh. Maikamu & Ors (1977) ALL NLR P. 215 @ 225. Leedo Presidential Motel Ltd v. BON & Anor (1998) NWLR (Pt. 570) P. 353 @ 381; Alhaji Saleh v. Alh. Monguno & 7 Ors (2006) 15 NWLR (Pt. 1001) P. 26 @ 46 and Adewumi v. Societe-General Bank Ltd (1998) 6 NWLR (Pt. 552) P. 154 were cited and relied on to reinforce the submissions supra.
Learned counsel referred to the depositions contained in paragraphs 5 and 9 of the affidavit in support of the motion on Notice of 4th February, 2016, and submitted that the respondents did not controvert same, therefore, the learned judge of the lower Court ought to have relied on same to grant the order sought by the appellants. That depositions in an affidavit which have not been controverted nor denied are deemed accepted and can be relied on to arrive at a decision by a Court of law has the support in the principles of law enunciated in the cases of Badejo v. FME (1996) 8 NWLR (Pt. 464) P. 118; Agbaje v. Ibru Sea Foods Ltd (1972) 5 SC P. 50; Jibrin v. Eje (1992) 7 NWLR (Pt. 255) P. 617 and Obikoya v. Wema Bank Ltd (1989) 1 NWLR (Pt. 157) P, amongst others.
It is learned Counsel’s further contention that the learned judge of the lower Court ought to have considered and granted the application of the appellants, on its merit, in view of the provisions of Order 41 Rule 3 of the Kaduna State High Court Civil Procedure Rules, 2007 and Order 2 rules 2(1) (a) of the Sheriffs and Civil Process Act, 2004.
For the 5th respondent, M. T. Muhammed Esq., did submit that the appellants knew that their property was attached and auctioned, yet they took no action until after the expiration of 21 days when they filed an application at the lower Court for extension of time seeking for an order to set it aside. It is counsel?s contention that the learned judge of the lower Court rightly refused to grant the order sought in that he had no jurisdiction to do so. Counsel cited and relied on the principle of law espoused in that case of ACB Plc v. Nwanna Trading Stores (Nig) Ltd (2007) 1 NWLR (Pt. 1016) P. 586 to buttress the submissions supra, that is, an application of this nature, the applicant must (i) bring the application within 21 days after the sale of the property, (ii) the application must be based on material irregularities in the conduct of the sale and (iii) prove to the satisfaction of the Court he had sustained substantial injury by reason of such irregularities. That the foregoing conditions enumerated are mandatory for the granting of an order to set aside a completed act of sale of property auctioned by an order of court.
K. K. Mustafa Esq., who settled the 6th respondent’s brief of argument made an observation on page 7 of the brief of argument that there being no issue distilled out of ground 2 of the Notice and grounds of appeal, same is deemed to have been abandoned as enunciated in the cases of Bawa v. Aliyu (2015) 3 NWLR (Pt. 1447) P. 523 @ 537 and Wassah v. Kara (2015) 4 NWLR (Pt. 1449) P. 374 @ 405. Counsel therefore urged that ground 2 of the Notice and grounds of appeal be struck out accordingly.
Submitting further, learned counsel pointed that the appellants had, before now brought an application to stop the execution of the judgment of the lower Court to no avail. That they waited for 21 days until the order of attachment and sale of the property was executed, when they brought an application for extension of time to do what they ought to have done within the prescribed durational time of 21 days. It is learned counsel’s submission that, an order that have been executed cannot be reversed or restrain in law as propounded in the cases of Zenith Bank Plc. v. John (2015) 7 NWLR (Pt. 1458) P. 383 @ 425; Ideozu v. Ochoma (2006) 4 NWLR (Pt. 970) P. 304 @ 385 and Alon v. Dandrill (Nig) Ltd (1997) 8 NWLR (Pt. 517) P. 495 @ 501. It is further submitted that the attachment of the property and its having been auctioned, can only be challenged within the 21 days prescribed by Section 46 of the Sheriffs and Civil Process Law of Kaduna State.
In conclusion, learned counsel contended that the property attached and auctioned belonged to the 3rd respondent, and it is immaterial that it was wrongly described as to its location. This Court has been urged to refuse and dismiss the appeal for lacking in merit.
The appellants? filed a Reply brief responding to the argument canvassed in the 6th respondent?s brief of argument. On the provisions of Sections 46 and 47 of the Sheriff and Civil Process Law, learned counsel submitted that same are application only where there had been an irregularity in the conduct of the attachment and auction of a property, and not where the same is a nullity in law.
Learned counsel cited and relied on the principles of law enunciated in the cases of Alhaji Labaran Nakyauta v. Alh. Ibrahim Maikima and Ors (1977) ALL NLR P. 215 @ 225; Leedo Presidential Motel Ltd v. B. O. N & Ors (1998) (Pt. 570) P. 353 @ 381; Alh. Baba M. Saleh v. Alh. Shettima Monguno & Ors (2006) 15 NWLR (Pt. 1001) P. 26 @ 46 and Adewumi v. Societe General Bank Limited (1998) 6 NWLR (Pt. 552) P. 154) to reinforce the submissions supra.
Learned counsel further pointed out that the principles of law espoused inACB v. NTS (Nig) Ltd (2007) 1 NWLR (Pt. 1016) and Cole v. Jibunoh (2016) 1 SCNJ (Pt. 1) applies to where there has been an irregularity in the conduct of the attachment and auction of the property, not where same is a nullity in law.
Learned counsel further referred to paragraph 5 and 11(a) of the appellants? affidavit filed on the 4th of February, 2016, and submitted that having not controverted the depositions contained therein, it cannot be disputed that the property attached and sold, was not owned by the 3rd respondent. That the law is well settled, depositions contained in an affidavit which have not been controverted nor discredited are deemed to be correct, and a Court of law can act on same to take a judicial decision. The principle of law propounded inLawson v. SPDC (Nig) Ltd (2002) 7 SC (Pt. II) P. 112 was cited and relied on to buttress the submissions supra.
In conclusion, learned counsel did submit that since the 3rd and 6th respondents did not controvert the depositions contain in the affidavit of the appellants in support of the application for extension of time to apply for the setting aside of the auction of the property, the learned Judge of the lower Court ought to have granted their application. This Court has been urged to do so in the circumstances of the appellants’ application before the lower Court.
On the 5th day of August, 2015, the lower Court made an order for the attachment and sale of property situated at No. L. 7 River Close, Kabala Costain, Kaduna, on the application of the respondents to satisfy the judgment debt delivered in their favour in Suit No. KDH/KAD/1125/2014. In the process of enforcing the order, the 5th respondent attached and sold property No. L. 5 Constitution Road, New Extension, Kaduna which also belonged to the appellants.
The appellant were aggrieved by the attachment and sale of the aforesaid property by the 5th respondent, hence the filing of a Motion on Notice on the 4th of February, 2016, seeking the orders herein before set out in the judgment.
In a ruling delivered on the 7th day of April, 2016, the learned trial judge of the lower Court refused and dismissed the application of the appellants thus:
“The applicants 1st application is aimed at extending time within which the applicant may apply for an order of the Court setting aside the auction/sale of the property situate at No. L.5 Constitution Road New Extension Kaduna, Kaduna State. That being so, the applicants 2nd application need not be argued as it is aimed at restraining the Respondents from selling/auctioning the property situate at No. L. 5 Constitution Kaduna, Kaduna State. Section 47 of the Sheriffs and Civil Process provides:
‘At anytime within 21 days from the date of the sale of any immovable property, applicant may be made to Court to set aside the sale on the ground of any material irregularity of the conduct of the sale, but no sale shall be set aside on the ground of such irregularly unless the applicant shall prove to the satisfaction of the Court that he has substantial injury by reason of such irregularity.”
Applicant is 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 Judgment Creditor.
In the instant suit, judgment was entered on the 1st – 7 ? 2015, order of attachment was made on the 5th – 8 ? 2015 while the applicant motion seeking to restrain the Respondents to set aside the Auction/sale are dated 20th – 1 ? 2016 and 4th – 2 ? 2016 respectively.
The sale of the property took place on the 29th December, 2015 so from the date of the attachment to the day of the sale is far more than 21 days.
It was held in the case of Cole v. Jibunoh (2016) 1 SCNJ (Pt. 1) P. 100 that ?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 Section 47 of the Act has exposed her as an indolent party who has not come to the court with clean hand. Consequently, with the provision of Section 48 & 50 become effectual.”
Sections 46 and 47 of the Sheriffs and Civil Process Law, Kaduna State, provides as follows:
SECTION 46 OF SHERIFFS AND CIVIL PROCESS LAW:
At anytime 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 the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity.
SECTION 47 OF SHERIFFS AND CIVIL PROCESS LAW:
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 objection be allowed, the Court shall make an order setting aside the sale for irregularity.”
Was the learned Judge of the lower Court right when he refused and dismissed the application of the appellants for an order extending the time within which to apply for an order to set aside the attachment and sale of property No. L. 5 Constitution road New Extension Kaduna. At this juncture, I think it is pertinent, to have a recourse to the provisions of Order 41 Rule (3) of the Kaduna State High Court (Civil Procedure, Rules, 2007; and Order 2 Rule (1) (a) of The Judgment Enforcement Rules.
“Order 41 Rule 3 of the Rules of 2007:
The Court may as often as it deems fit and either before or after the expiration of the time appointed by these rules or any other judgment or order of the Court, extend or adjourn the time for the doing any act or taking any proceedings:
Provided that any partly who defaults in performing an act within the time authorized by the Court or under these rules shall at the time of compliance, pay to the Court an additional fee of N200,00 (Two Hundred Naira) for each day of default.”
Order 2(1) (a) of The Judgment Enforcement Rules
(a) Where the time for doing any act is prescribed by the these rules or fixed by any judgment, may as of then as he thinks fit, and either before or after the expiration of that time, enlarge or abridge that time.
In the interpretation and application of the provisions of the aforesaid Rules, I must state, and this is well settled, that rules of Court are designed to aid the administration of justice and not to be a handicap to the attainment of justice. This was reiterated by the Supreme Court in the case of Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) P. 91 @ 146 Para B-E per Ariwoola JSC, citing their earlier decision in U.T.C Ltd v. Pamotei (1989) 2 NWLR (Pt. 103) 244 @ 296 where it was held, Per Belgore, JSC (as he then was), as follows:
“Rules of Procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not defeat justice. The rules are therefore aids to the Courts. For the Court to read Rules in the absolute without recourse to the justice of the cause, to my mind, that will be making the Courts slavish to the Rules. This clearly is not the reason of the Rules of Courts.”
His Lordship Ariwoola JSC, Continuing, held:
“Where strict compliance will also lead to injustice and unbearable delay, the Court is enjoined to waive strict compliance.”
As also held by the Supreme Court in the case of Famfa Oil Ltd v. A/G Federation (2003) 18 NWLR (Pt. 852) P. 453 @ 476, Para F-G, Per Edozie JSC, any non-compliance with any rules of Court is prima facie an irregularity and not a ground for nullity unless such non-compliance amounts to a denial of natural justice.
It is not very irregularity that automatically nullifies the proceedings, particularly where the irregularity did not in any way materially affect the merits of the case. A procedural irregularity should not vitiate a suit once it can be shown that no party has suffered a miscarriage of justice. SeeFamfa Oil Ltd v. A/G Federation Supra @ P. 468, Para D-H per Belgore JSC (as he then was ); Egbo v. Agbara (1997) 1 NWLR (Pt. 481) P. 293 @ 312, Para E per Iguh JSC.
A slavish adherence to the provisions of Section 46 and 47 of the Sheriffs and Civil Process Law and any other Rules of Court without regard for the justice of the matter will only tantamount to undue regard to technicalities, which the Courts frown at, in the dispensation of justice.
The provisions of Sections 47 and 48 of the Sheriffs and Civil Process Law are applicable only where, in the process of the attachment and sale of a property, by an order of a Court of law had been infected with irregularity. Where the attachment and sale of the property was not based on an order of the Court, or the wrong property which was not the subject of attachment by the order of the Court, it is illegal, unlawful and unconstitutional. The foregoing propositions of the principles of law supra, has the support of the Apex Court in the case of Alh. Shettima Monguno & 7 Ors v. Alh. Baba M. Saleh (2006) 16 NWLR (Pt. 1001) P. 26 @ 46 wherein TABAI, J.S.C held that:
“Where the immovable properties of a judgment debtor are attached and sold without an order of Court made, the unauthorized and unconstitutional attachment and sale of properties is NOT A MERE IRREGULARITY within the meaning of SECTIONS 47 AND 48 OF THE SHERIFFS AND CIVIL PROCESS LAW, CAP 123 LAWS OF NORTHERN NIGERIA 1963. The attachment and sale will be null and void. In the instant case the attachment and sale of the Appellant four properties specified in relief (B) to the 3rd to 8th respondents was illegal, unconstitutional null and void consequently that the purported attachment and sale passed no title in any of the four properties to whoever of the 3rd – 8th respondents that bought any of them. He is accordingly entitled to the immediate restoration of the properties to him. The Court of Appeal was therefore clearly in error to regard the unauthorized, illegal and unconstitutional attachment and sale of these properties as mere irregularity within the meaning at Section 47 and 48 of the Sheriffs and Civil Process Law Cap 123 Laws of Northern Nigeria, 1963.”
The contention of the appellants is not that there was an irregularity in the attachment and sale of their property No. L 5 Constitution Road, New Extension, Kaduna, but rather, that there was no order made by the Court for such attachment and sale, because the order of the lower Court made on 5th day of August, 2015, by the lower Court was in respect of property No. L 7 River Close, Kabala Costain, Kaduna. Where the attachment and sale of the property was carried out without any lawful order of attachment by the Court, same cannot be lawful. It is a nullity, and the provisions of Sections 46 and 47 of the Sheriffs and Civil Process Law, would not apply in an application for an order to set same aside even after the expiration of the 21 days prescribed in the Law or Rules of Court. See Alh. Labaran Nkyauta v. Alh. Ibrahim Maikima & Ors (1977) ALL NLR (REPRINT) 215 @ 225/226, (1977) 6 SC 51; Leedo Presidential Motel Limited v. Bank of the North & Anor (1998) (Pt. 570) 353 @ 381-383; Alh. Baba M. Saleh v. Alh. Shettima Monguno & 7 Others (2006) 15 NWLR (Pt. 1001) P. 26 @ 46; Adewumi v. Societe Generale Bank Limited (1998) 6 NWLR (Pt. 552) 154 amongst others.
A perusal of the record of appeal would reveal that pursuant to the order of the lower Court made on the 5th of August 2015, the following processes were issued by the lower Court:
“WRIT OF ATTACHMENT AND SALE AGAINST IMMOVABLE PROPERTY, PUBLIC NOTICE OF ATTACHMENT OF LAND FORM 40, NOTICE OF ATTACHMENT FORM 41 AUCTION NOTICE all relating to the property situate at L7 River Close, Kabala, Costain Road, Kaduna and not the Appellants property situate at No. L5 Constitutional Road, New Extension Kaduna (See Pages 90-94 of the Record of Appeal).”
In paragraph 9 of the affidavit in support of the Motion on Notice filed on the 4th of April, 2016, seeking for extension of time to seek for an order to set aside the attachment and sale of their property, which was wrongly, unlawfully and unconstitutionally sold by the 5th respondent, deposed to the following facts, which were not controverted by the respondent.
That the Applicants property located at No. L5 Constitution Road, New Extension, Kaduna, Kaduna is covered with a Certificate of Occupancy and Site Layout that situates and delineate the Applicant?s property at located at No. L5 Constitution Road, New Extension, Kaduna, Kaduna and not L 7 River Close Kabala Costain, Kaduna.”
The depositions contained in paragraphs 5 and 9 of the affidavit of the appellants in support of the Motion on Notice filed on the 4th of April, 2016, for an order extending the time within which they can seek for an order to set aside the attachment and sale of their properly No. L5 Constitution Road, New Extension, Kaduna, have not been controverted by the respondents. The respondents are deemed to have admitted same as the correct position of the assertions therein. See Badejo v. F.M.E (1996) 8 NWLR (Pt. 464); Agbaje v. Ibru Sea Foods Ltd (1972) 5. SC P. 50 and jibrin v. Eje (1992) 7 NWLR (Pt. 255) P. 617.
It is necessary, at this juncture, to refer to the provisions of Order 41 Rule (3) of the Kaduna State High Court (Civil) Procedure Rules, 2007, and Order 2 Rules 2 (1) (a) of the Judgment Enforcement Rules, 2004, to see whether the lower Court, was processed of the jurisdiction to grant the reliefs sought or not. Though the provisions of the aforesaid Rules here been earlier reproduced in this judgment, I consider it appropriate to do same here, notwithstanding being repetitive. Order 41 Rule 3 of the Kaduna State High Court (Civil Procedure) 2007, provides thus:
“The Court may, as often as it deems fit and either before or after the expiration of the time appointed by these rules or any other judgment or order of the Court, extend or adjourn the time for the doing any act or taking any proceedings:
Provided that any party who defaults in performing an act within the time authorized by the Court or under these rules shall at the time of compliance, pay to the court an additional fee of N200,00 (Two Hundred Naira) for each day of default.”
Order 2 Rules 2 (1) (a) of The Judgment Enforcement Rules, 2004, provides thus:
(a) Where the time for doing any act is prescribed by the these rules or fixed by any judgment, may as of then as he thinks fit, and either before or after the expiration of that time, enlarge or abridge that time.”
The law is trite, in an application for an order to extent or enlarge the time to do an act which ought to have been done within a specified period, relevant materials ought to be placed before the Court for the proper exercise of its discretion when determining an application for enlargement of time. It is the applicant that has the burden of making such materials available. In other words, it is the duty of an applicant seeking for an enlargement of time to establish the merit of his application and not to rely on the weakness of the respondent’s case. See Alamieyeseigha v. F.R.N (2006) 16 NWLR (Pt. 1004) 1. It is the facts deposed to in the affidavit evidence that would hold relevant in giving the requisite information directing the exercise of discretion, which must be judicial and judicious. See SCOA (Nig.) Plc v. Omatshode (2009) 11 NWLR (Pt. 1151) P. 106 @ 112.
The depositions in paragraph 5, 6, 7, 8, 9, 12, 13, 14, 15, and 16 of the affidavit in support of the Motion on Notice filed on the 4th of April, 2016, by the appellants are germane in the consideration of whether to grant the application of the applicants or not. They read thus:
5. That the 2nd and 3rd respondents executed agreements, sold, and handed over freely the Original title document and property lying and situate at No. L5 Constitution Road, New Extension Kaduna, Kaduna State to the 1st and 2nd applicants free of all encumbrances since 2014. Copies of the Agreements, Original title and handover documents execute are hereby ANNEXED MARKED EXHIBITS A1-A4.
6. That the applicants are currently enjoying physical and peaceful possession of the property since they were handed over by 2nd and 3rd respondents since the year 2014.
7. That the said property lying and situate at No L5 Constitution road, New Extension Kaduna, Kaduna State, is a subject of several pending litigations at the Kaduna State High Court of Justice, Court No. 5 with suit No. KDH/KAD/625/2015 involving the 2nd applicant and the 2nd respondent on issues of title to the property. Certified copies of the Court documents are annexed and marked EXHIBIT B1-B2.
8.That the property which is referred to in the Writ of Attachment and auction is that situated at L7 River Close Kabala Costain, Kaduna; while the applicant?s property where the Auction Notice was pasted and which was auctioned is located at No. L5 Constitution Road, New Extension, Kaduna, Kaduna.
9. That the applicants property located at No. L5 Constitution Road, New Extension, Kaduna, Kaduna is covered with a Certificate of Occupancy and Site layout that situates and delineate the applicant’s property at located at No. L5 Constitution Road, New Extension, Kaduna, Kaduna and not L7 River Close Kabala Costain, Kaduna.
12. That the 1st and 2nd applicants are in effective possession of the property lying and situate at No L5 Constitution Road, New Extension Kaduna, Kaduna State and 2nd and 3rd respondents had officially and freely handed over the original title documents, agreements and property the applicants.
13. That the applicant was misdirected by the address set out in the notice of auction referred to L7 River Close Kabala Costain, Kaduna and not the applicant’s property at No L5 Constitution Road, New Extension Kaduna. Ex. D1.2.
14. That if the auction of the property lying and situate at No L5 Constitution Road, New Extension Kaduna, Kaduna State is not set aside, it shall frustrate the applicants from pursuit of justice and render nugatory the proceedings of the Kaduna State high Court of Justice, Court No. 5, Kaduna, Kaduna State where the title to the property is the issue and subject of the suit.
15. That if the auction is not set aside, the 1st and 2nd applicants would have lost its property, the sum of N15,000.000.00 value vides dud cheque which the 1st respondents cannot provide and the police in Kaduna State, physical inconvenience and Abuja would lose a vital trail on the 2nd and 3rd respondents.
16.That if the auction is not set aside the applicants would not be able to recover the caterpillar which the 2nd and 3rd respondents failed to produce since the 30th August 2014 till date, nor other sums of monies the 2nd and 3rd respondents collected from the applicants.
The respondents did not file counter-affidavit in opposing the granting of the order sought by the appellants. The law is settled, depositions in an affidavit are deemed to be correct, if not controverted nor challenged by the respondent who ought to have done so. In Bayam v. Agana (2010) 9 NWLR (Pt. 1199) P. 215 @ 233, it was held that:
“Facts pleaded by a plaintiff are deemed admitted if they are not controverted in the defendant?s statement of defence”
Where facts are admitted, no evidence is admissible in proof thereof.’
In Uzodima v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) P. 30, @ 58, the Court espoused that:
“Depositions in an affidavit are the factual positions of the deponent as verily believed by him, and where such facts are not controverted by a counter affidavit, the material facts are taken as unchallenged and undisputed and the Court is bound to act on them
The learned Judge of the lower Court ought to have given due regard to the depositions contained in the affidavit of the appellants in paragraphs 5, 6, 7, 8, 9, 12, 13, 14 and 15 thereof, seeking for extension of time to challenge the unlawful attachment and sale of property No. L5 Constitution Road, New Extension, Kaduna; when there was no Court order obtained by the respondents to do so. The decision of the Apex Court in Alh. Saleh v. Monguno & Ors (2006) 15, NWLR (Pt. 1001) P. 26 @ 46 supra, reinforces the proposition of the law that, any attachment and sale of property in cause of execution of a judgment, without any lawful Court order to do so, is illegal, wrongful, and unconstitutional, therefore the issue of irregularity in the conduct of the attachment and sale, is not of any significance. In the result, I resolve the sole issue in favour of the appellants. The appeal succeeds, the ruling of the lower Court delivered on the 7th of April, 2016 is hereby set aside.
Acting under the provisions of Section 15 of the Court of Appeal Act, I make an order extending the time by 20 days, with effect from the date the order of this Court is served on the appellants, to seek for an order to set aside the attachment and sale of property No. L. 5 Constitution Road, New Extension, Kaduna, in respect of which no Court order was made by the lower Court. The appellants are entitled to costs, assessed at N50,000.00. Same is awarded in favour of the appellants against the respondents.
UWANI MUSA ABBA AJI, J.C.A.: I read in draft the judgment of my learned brother, Ibrahim Shata Bdliya, JCA, just delivered.
I agree with the reasoning and conclusion arrived at by my learned brother that the appeal has merit. It is for the reasons therein adumbrated in the lead judgment which I adopt as mine, that I too allow the appeal.
I endorse the order as to costs.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read in advance the well considered judgment delivered by my learned brother, Ibrahim Shata Bdliya, JCA.
I agree with him that the appeal is meritorious and ought to be allowed, and justifiably allowed. I have nothing useful to add, as my learned brother left out nothing worthy of consideration in the appeal in his judgment.
I also agree with him that the Appellants are entitled to costs in the sum of N50,000.00.
Appearances:
Avong D. Emmanuel, Esq. For Appellant(s)
Y. Ajibola, Esq. for 1st – 4th Respondents
Abubakar A. Mohammed, Esq. for 5th Respondent
