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In The Federal
Supreme Court
On Monday, the
5th day of November 1962
F.S.C. 350/1961
Before Their
Lordships
Between
And
Judgement of the Court
Delivered by
Charles
Dadi Onyeama.
Ag. F.J.
This is an appeal from a judgment of the High Court of the Western Region of
Nigeria (Doherty J.) whereby it was ordered that the sale of the plaintiff's
farm land allegedly wrongly attached by the bailiff be set aside.
The plaintiff, who is the respondent in this appeal, had claimed judicial
relief and sought an order setting aside the sale of a farm of land situated
at Odunlewe said to have been sold by a Court
bailiff under a writ of fieri
facias at the instance of the second and
third defendants, who are two of the appellants.
It appears that the second and third defendants obtained judgment in a court
action against one Robert Inawo
Akinnubi. This Akinnubi
was in possession of an area of land called Ahakoh
Forest as successor of his father who has been put in possession of the land
by the plaintiff. In execution of the judgment of the Court, the first
defendant who was the bailiff of the court proceeded to attach a piece of
land which was pointed out to him by the second and third defendants, the
judgment creditors, and said to be the property of the judgment debtor,
Akinnubi. The land was sold to the fourth
defendant, the other appellant.
The respondent who claimed ownership of the land raised a claim in the High
Court and obtained the judgment from which this appeal has been brought.
Mr Adeyefa for the appellants argued two grounds
of appeal. The first was that since the learned trial judge was unable to
determine the identity of the land which was sold, he could not properly set
aside the sale. The second was that, in any case, the relief claimed by the
plaintiff was inappropriate since the purported sales only transferred to
the purchaser the right, title and interest of the judgment debtor in the
property sold. If the plaintiff was right in his claim that the land
belonged to his family and not to the judgment debtor then, of course, the
purchaser got nothing.
The first contention put forward in support of the appeal appears to me a
sound one. The learned judge left no doubt in anyone's mind that the
plaintiff had not established the identity of the land said to have been
sold.
He said:—
The next point is, what is the identity of the
land which the defendants allege was in fact sold on the day in question? I
confess that I am unable to answer the question with any degree of certainty
on examination of the evidence adduced on the point.
And also:—
Now it is common ground that according to the evidence adduced in these
proceedings the land which is in dispute between the parties is known as
Odolawe Egedege and
it is the vast area depicted on both plans exhibits A and E and thereon
edged pink. It is obvious from the evidence of the bailiff that this was not
the land which was sold. According to him the land which he sold was at
Abusoro
....
And finally:
In these circumstances I am quite unable to determine what land was sold.
Since the defendants were responsible for the sale the onus is on
them to establish the identity of the land which they sold beyond all
possible doubt.
It is, perhaps, unnecessary to point out that to obtain judgment the onus is
on a plaintiff to prove the facts on which he relies. There is no doubt that
the plaintiff in the case under consideration had failed to establish the
identity of the land he claimed was unlawfully sold and that the land
belonged to his family.
It is not easy to see how an order setting aside a sale can be made without
clear evidence of the subject matter of the sale.
The second ground of complaint of the appellants appears to me equally
valid. When a claim is brought seeking an order to set aside a sale it is
postulated by such a claim that the sale attacked is prima facie
valid and would remain effective if it was not set aside. If, as appears to
have been the case in the suit before the High Court, the complaint is that
no valid sale has taken place because the judgment debtor has no title to
the property sold, the remedy available to the party claiming ownership of
the property would be a claim for a declaration of title to the property
and/or damages for trespass depending on what action the supposed purchaser
has taken to give effect to the purported purchase. An application for the
sale to be set aside under the Sheriffs and Civil Process Act in such
circumstances would be inappropriate: see O. Odejoke
and others v. John Holt & Co. Ltd. and Another
8 W.A.C.A. 152, and also AM.
Shoti
v. Paul and Others UN.L.R. 120.
The present case illustrates the importance of compliance with the
Sheriffs and Civil Process Act.
Section 50 of the Act provides that after a sale of immovable property has
become absolute the court shall grant a certificate of purchase. The
certificate is to be in the Form 46 in the First Schedule to the Judgments
(Enforcement) Rules, which provides for a description of the land, and the
proper procedure for the sheriff to follow is contained in Order VII, rule
5(a) and Order I, rule 13. If he follows this procedure the
certificate should be issued as a matter of course. The certificate requires
to be registered under the Land Registration Act, for which purpose a plan
of the land would be required, and once the certificate is issued oral
evidence of the sale would be excluded under section 131 of the Evidence
act. If this procedure had been followed after the sale with which the
present case is concerned no question could have arisen as to what land was
sold, but it is for consideration whether the certificate of purchase should
not expressly refer to a plan. In this connection, the possibility of
amending the Rules of Court accordingly needs to be examined.
For the reasons already stated I would allow the appeal with costs of the
appeal assessed at 76 guineas.
Order proposed:
That the judgment of the High Court of the Western Region
be set aside and in substitution therefore
judgment be entered for the defendants with costs assessed at
£52-10s-0d.
Sir Adetokunbo
Ademola.
C.J.F.
I concur.
Sir Lionel Brett.
F.J.
I concur.
Counsel
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