3PLR – BAYERO V. CRUSADER INS. CO. LTD

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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BAYERO

V.

CRUSADER INS. CO. LTD

COURT OF APPEAL

(KADUNA DIVISION)

CA/K/180/96

FRIDAY 24TH APRIL, 1998

3PLR/1998/24  (CA)

OTHER CITATIONS

6 NWLR PART 553 PG.214

BEFORE THEIR LORDSHIPS:

UMARU ABDULLAHI;

ATINUKE OMOBONIKE IGE;

IBRAHIM TANKO MUHAMMAD.

BETWEEN

1. K. BAYERO

AND

CRUSADER INSURANCE COMPANY LIMITED;

THE DEPUTY SHERIFF, KADUNA HIGH COURT; TIJJANI AMINU.

REPRESENTATION

MAIN ISSUES

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – Execution of judgment -Attached immovable property When can be sold – Order 7 rule 6(l) of the Judgment (Enforcement) Rules.

PRACTICE AND PROCEDURE – Service Of Process – Service of order granting leave to attach property – Whether can be taken as service of the notice of attachment.

Issues:

1        Whether the non-compliance with the order of court directing that the sale of appellant’s property shall not take place until he has had notice of the attachment and proposed sale is enough to vitiate the sale and set it aside.

2. Whether the service of the court’s order on the appellant by posting same on the disposed property was sufficient compliance with the provisions of Order 5 rules 3 and 4 of the Judgment (Enforcement) Rules so as not to set aside the sale.
3. Whether the non-compliance with the provisions of Order 7 rule 6(l) and Order 5 rules 3 and 4 of the Judgment (Enforcement) Rules was not a material irregularity to necessitate the setting aside of the sale of appellant’s property.

Facts.

The appellant had lost in an action instituted against him by the 1st respondent at the Kano High Court. Upon failure to pay the judgment debt at the quarterly rate fixed by the court, the 1st respondent enrolled and registered the said judgment at the Kaduna State High Court.

Subsequently, the 1st respondent took out a writ for the attachment of the appellant’s immovable property in Kaduna. The Kaduna High Court granted the 1st respondent leave to attach the said property. But in doing so the court ordered that the sale of the property was not to take place until the appellant had notice of the attachment and sale. It was also ordered that the sale should be carried out by the Deputy Sheriff of the High Court.

The 1st respondent served the order granting leave to attach the property on the appellant in Kano. However the notice of attachment and sale was posted on the property in Kaduna. Within eleven days of issuing the writ of attachment, the 2nd respondent sold the property to the 3rd respondent. On learning of the sale of his property, the appellant applied to the High Court praying it to set aside the sale mainly on the grounds that the order of the court as to service of the notice of attachment and certain provisions of the Sheriffs and Civil Process Law and the Judgment (Enforcement) Rules were not complied with. After hearing counsel on the motion the same court which made, directions as to service of the notice of attachment refused to set aside the sale. The ground for the refusal was that the appellant did not establish that the sale was characterised by material irregularity or that he had suffered substantially as a result of the irregularity. Dissatisfied with the decision of the court, the appellant appealed to the Court of Appeal.

In determining the appeal, the Court of Appeal, considered the following statutory provisions.

Order 5 rules 3 & 4 and Order 7 rule 6(1) of the judgment (Enforcement) Rules which respectively provide as follows:

Order 5:

“3.     The attachment of immovable property shall be effected by the delivery of the notice of attachment in Form 40 mentioned in the next succeeding rule, and, unless the court shall otherwise order, by posting in a conspicuous place on the land a notice in Form 40 prohibiting all persons from receiving the same by purchase, gift, or the sheriff may also take and retain actual possession otherwise; and of the land, by putting into possession thereof some fit person approved by the sheriff.

4. The person proceeding to attach any property shall deliver to the judgment debtor or leave at the place where the attachment is effected a notice of attachment in Form 41.”

Order 7:

“6(l)   No immovable property attached shall be sold for the purpose of satisfying the writ of execution until the expiration of at least fifteen days next following the day on which the property has been attached unless the person whose property has been attached so requests in writing:

Provided that the sheriff may, if he is unable from want of time to complete the sale, adjourn the same for a period of not more than three days, and so on as often as may be necessary;

And provided further that the court may, if it thinks fit, direct that the sale shall be postponed for any time not exceeding twenty- eight days after the attachment.”

MAIN JUDGEMENT

Held:

1. By virtue of the provisions of order 5 rules 3 and 4 of the Judgment (Enforcement) Rules the attachment of immovable property shall be effected by the delivery of the notice of attachment in Form 41 and unless the court shall otherwise order by posting in a conspicuous place on the land a notice in Form 40 prohibiting all persons from receiving the same by purchase, gift or otherwise. The person proceeding to attach such property shall deliver to the judgment debtor or leave at the place where the attachment is effected the notice of attachment in Form 41.
2. Service of notice of attachment could be effected by posting same on the immovable property on which the attachment is to be effected. But where the court orders otherwise, the court order must be carried out in the exact words. Thus in the instant case where the court had ordered that the sale of appellant’s property shall not take place until he has had notice of the attachment and sale delivered to his residence at Kano, the court ought not to have refused the application to set aside the sale for violating that order.
3. Court order granting leave to attach property is not equivalent to notice of attachment. Thus service of the order cannot be taken to be service of the notice of attachment of sale of the property as required under Order 5 rules 3 and 4 of the Judgment (Enforcement) Rules. In the instant case the trial court erred by ruling that the notice of attachment was served on the appellant personally in Kano.
4. So vital and fundamental is the service of notice of attachment that any irregularity in respect thereof would vitiate the sale of the attached property. In the instance case the irregularity in respect of service of the notice of attachment has vitiated the sale of the appellant’s property by the 2nd respondent. [Aladegbemi v. Fasanmade (1988) 3 NWLR (Pt.81) 129 at 155 referred to]
5. By virtue of the provision of order 7 rule 6(t) of the Judgment (Enforcement) Rules no immovable property attached shall be sold for the purpose of satisfying the writ of execution unto the expiration of at least fifteen days next following the day on which the property has been attached unless the person whose property has been attached so requests in writing. However the Sheriff may, if he is unable for want of time to complete the sale, adjourn the same for a period of not more than three days, and so on as often as may be necessary. Also the court may, if it thinks fit, direct that the sale shall be postponed for any time not exceeding twenty-eight days after the attachment. In the instant case where the sale of appellant’s property was carried out within 11 days instead of 15 days after the issuance of the writ of execution the trial court was wrong to have held that the irregularity was immaterial.
6. Provisions of the law should be strictly complied with. In the instant case it was wrong for the trial court to have dismissed the non-compliance with the provisions of the Judgment (Enforcement) Rules by the respondents with a wave of the hand.

Per IGE:

“it is very important that the provisions of the law should be strictly complied with. It was very wrong of the learned trial Judge to dismiss the non-compliance of these provisions by the respondents with a wave of the hand by saying ‘it did not amount to material irregularity’. This failure on the part of the learned trial Judge to insist upon the compliance of both his own order and the provisions of the enabling laws has amounted to a grave miscarriage of justice and I will not hesitate to set aside the sale of the appellant’s property by the respondents”