Alfa Arowosaye V. Felix Oluwasegun Ogedengbe & Anor. (2008)

LawGlobal-Hub Lead Judgment Report

CHIMA CENTUS NWEZE, J.C.A.

The second respondent sued the first respondent for the recovery of a banking facility it granted to his company. It obtained judgment. That was in suit number KWS/240/94.

Subsequently, upon a motion ex parte filed by Kayode Oyende Esq. on behalf of the second respondent, creditor to the first respondent’s companies, the High Court of Kwara State (coram: Folashade Oju J) ordered the disposal of the property of the first respondent– by public auction – to satisfy the judgment debt.

Pursuant to that order, the Sheriffs of the court conducted a public auction on 6/2/1998. The appellant was the highest bidder.

The first respondent resisted the appellant’s attempt to take possession of the building [subject of the auction sale]. On 11/8/1998, he originated a suit at the lower court. He beseeched the court to favour him with an order setting aside the writ of attachment, the auction notice, warrant of possession and sale of his said building.

Upon application, the trial High Court, in a considered ruling, struck out the Sheriffs who were originally the second – fourth defendants on the ground that they were sued three months after the accrual of the cause of action and thus protected by the Public Officers’ Protection Law.

It, however, ruled that the suit was competent against the remaining defendants: the appellant and the second respondent herein.

On May 18, 2006, almost seven years after the ruling, and eight years after the suit was commenced, the appellant, by way of motion, moved the lower court to dismiss the suit for being statute-barred. Folayan J heard the application and dismissed it. This appeal is against that ruling.

Learned counsel for the appellant formulated the following issues for determination:

(1)Whether the provision of Order 4 Rule 1(1) and (2) of the Kwara State (Civil Procedure) Rules, 2005 could be called in aid to regard a breach of Section 46 of the Sheriffs & Civil Process Law of Kwara State, CAP 146 as mere irregularity to confer jurisdiction in (sic) a Court.

(2)Whether in the circumstance of this case (sic) issue of jurisdiction raised (sic) for non-compliance with a mandatory statute can constitute a waiver of statute of Limitation.

(3) If the answer to issues 1 & 2 are in the negative, was the trial court right in construing the word “may” as used in section 46 of the Sheriffs and Civil Process Law of Kwara State, CAP 146, to be in permissive sense to allow filing of the suit outside the prescribed time limit.

The first respondent formulated two issues, namely:

(1) Whether the Sheriffs and Civil Process Law (supra) is of any relevance to the first respondent’s suits. If so, whether any of its provisions can bind the suit so as to make it statute-barred.

(2) Whether the Appellant’s application before the trial High Court is competent and whether by his conduct the Appellant has not waived his right to complain assuming he has any.

The second respondent also formulated two issues:

(1) WHETHER COMPLIANCE WITH THE PROVISIONS OF SECTION 46 OF SHERIFFS AND CIVIL PROCESS LAW OF KWARA STATE HAS BEEN WAIVED BY THE CONDUCT OF THE APPELLANT IN THIS APPEAL

(2) WHETHER HAVING REGARD TO THE PLEADINGS, OTHER MATERIALS BEFORE THIS HONOURABLE COURT AND ALL THE CIRCUMSTANCES OF THIS APPEAL, THE PROVISIONS OF SECTION 46 OF SHERIFFS AND CIVIL PROCESS LAW OF KWARA STATE IS (sic) APPLICABLE TO THIS APPEAL WHERE THE 2ND RESPONDENT NEITHER AUTHORIZED ANY SALE NOR RECEIVED ANY PURCHASE PRICE OR ANY CONSIDERATION WHATSOEVER FROM THE PURPORTED SALE OF THE 1ST RESPONDENT’S PROPERTY TO, THE APPELLANT

Having regard to the Grounds of Appeal, I take the view that the issues formulated by the appellants sufficiently address the main questions thrown up by this appeal. I shall, accordingly, adopt them as the issues for determination in this appeal.

ARGUMENTS ON THE FIRST ISSUE

Appellant’s counsel canvassed four points in elaboration of this issue.

In the first place, he noted that the jurisdiction of a court is determined by the plaintiff’s claim as endorsed on the process filed. As such, jurisdiction can only vest in the court where a case comes before it, initiated by due process of law and upon fulfilment of any condition precedent to the exercise of that jurisdiction, Madukolu v Nkemdilim (1962) 2 SCNLR 341; Abiegbe v RTAC (1992) 5 NWLR (PT-241) 366.

He submitted that the suit before the lower court was not properly instituted.

Drawing attention to paragraphs 12, 13, 19, 23 and 29(1) of the first respondent’s amended Statement of Claim (see page 25-29 of the Record), he observed that the public auction of the property (that is the property which the appellant purchased at the auction sale pursuant to the order of High Court) was conducted on 6/2/1998. However, he (the first respondent) filed his writ of summons on the 12/8/1998 (see Page 2 of the record).

He, therefore, impugned the said writ as a flagrant violation of the provision of section 46 of the Sheriffs and Civil Process Law of Kwara State, CAP 146.

He argued that provisions of a statute affecting limitation of an existing right of action operate as a statute of limitation, John Eboigbe v NNPC (1994) 6 SCNJ 71, 77. He, therefore, construed the provision of section 46 (supra) as a statute of limitation.

Although, the cause of action accrued on 6/2/98, the writ to set aside the sale was issued on 12/8/98. It was, therefore, filed more than twenty one days from the date of sale. He found support for this construction in NIPOL LTD v BIOKUNU & PRO CO LTD (1992) 4 SCNJ 56 at 71.

Hence, the entreaty for an order of court to set aside the sale of the immovable property, as was done in this case, is incompetent. It is therefore, within the inherent power of the lower court to dismiss the suit, AJAYI v OMORIEGBE (1993) 6 NWLR (pt. 301) 512 at 534.

On the strength of the above contention, he concluded that the lower court wrongly placed reliance on Order 4 of the Kwara State High Court (Civil Procedure) Rules, 2005 in holding that the first respondent’s non-compliance with section 46 was a mere irregularity.

Secondly, learned counsel forcefully contended that a rule of procedure cannot vest jurisdiction on a High Court. The Kwara State High Court is a creature of statutes (in this case section 6(1) to (6) of the 1999 Constitution, generally, and by extension, the Kwara State High Court Law). Only these statutes can vest, vary and alter its jurisdiction.

To illustrate his point, he prayed in aid section 13 (2) of the Kwara State High Court Law – Laws of Kwara State Cap 67. It provides thus:

The jurisdiction conferred upon the High Court by the provision of this Law and of any other written Law shall be exercised subject always to the limitation imposed by the Constitution.

The phrase “any other written Law” contemplates provisions of such enactments as section 46 of the Sheriffs and Civil Process Law of Kwara State. The implication, therefore, is that the lower court derives its jurisdiction from only two sources. These are: the Constitution and “any other written law”. The said Kwara State High Court Law, Laws of Kwara State, CAP 67, is an instance.

Hence, a High Court can not entertain any suit that is not in compliance with these two sources, TIZA -V- BEGHA (2005) 22 NSCQR (pt. 2) 642 at 655. Consequently, Order 4 can neither make an exemption from, nor can it be used as an aid in, the interpretation of such an enabling law that vests jurisdiction.

Next, he contended that Order 4 (supra) only remedies any technical inadequacy in relation to steps taken pursuant to the Rules generally. It can not redeem any defect relating to a statutory provision. Order 4 Rule 1(1) of the Kwara State High Court (Civil Procedure) Rules, 2005 provides that:

Where in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirement of these Rules, whether in respect of time, place, manner, form or content … (emphasis supplied).

The sole objective of Order 4 Rule 1 (1), in his view, is to deem as regular any defect emanating from a party’s “failure to comply with the requirement of [the] Rules…”

According to him, proceedings taken pursuant to section 46 cannot be within the ambit of “the requirement of these Rules…” contemplated by Order 4. This Order can only cure a step taken pursuant to the Kwara State High Court (Civil Procedure) Rules, 2005. The trial court was, therefore, wrong in broadening the scope of this provision in order to excuse the applicant’s non-compliance with section 46. A court cannot expand its jurisdiction deliberately, Africa Newspaper v Nigeria (1985) 2 NWLR (PT.6) 137 at 141.

A rule of court can neither vest, nor can it be called in aid to vest, jurisdiction in a court where a statute provides otherwise as in this case, ONUORAH v. KADUNA (2005) 21 NSCQR 130 at 140.

The net effect is that non-compliance with the said provision of section 46 cannot constitute a mere irregularity that is curable by Order 4. The reason is simple: a statutory provision such as the section under reference, cannot be subjected to a rule of court whose sole purpose is to aid procedure in that court, Odu’a Investment v TALABI (1997) 7 SCNJ 600 at 650.

Interestingly, there is an authority for the proposition that where a law prescribes a particular method of exercising a statutory power, any other method of its exercise is excluded, OGUALA v ATTORNEY GENERAL, RIVERS STATE (1997) 5 5CNJ 240 at 251.

Finally, he submitted that the suit, as constituted, is a flagrant abuse of the process of the court for being in breach of the said section 46. So, the lower court ought to have dismissed it. The court was in error by using the instrumentality of the said Order 4 to breathe life into it because: “Once a court is satisfied that any proceeding before it is an abuse of process, it has the power, indeed, the duty to dismiss it”, per Nnaemeka-Agu, JSC in ARUBO v AIYELESU (1993) 24 NSCQR (Pt.1) 255.

THE SECOND ISSUE

The appellant’s impeachment of the lower court’s ruling on this issue throws up the age-old problematic of the cogency of jurisdiction of courts.

Firstly, counsel submitted that the learned trial judge was wrong when he dismissed the appellant’s preliminary objection on the ground that it was brought seven years after the suit was filed.

The issue of jurisdiction is so sacrosanct that it can be raised at any stage of the proceeding. Indeed, with leave, it can even be canvassed at the Supreme Court, AMADI v NNPC (2000) 2 SCQR 990.

What is more, on the Record, (see pages 3 and 39) the appellant entered a conditional appearance. In addition, by paragraph 24 of his amended Statement of Defence, he gave notice of his intention to contest the competence of the court’s jurisdiction in the case. Interestingly, hearing has not even commenced in this suit. It is not his fault that the Kwara State Government introduced the new High Court (Civil Procedure) Rules, 2005 before the hearing of the case. The new rules prompted the filing of additional processes which were not contemplated in the repealed Rules.

Counsel further contended that the said law, being a statute of limitation, is a substantive law. Its effect is that any act or step taken by the lower court, when a party who invoked its provision has not fully complied with its antecedent requirement, is void. As such, no agreement, an action or inaction on the part of the parties can confer jurisdiction on the court, where a provision of such a statute of limitation is breached.

On this ground, he challenged the conclusion of the lower court that the appellant’s acts of filing his Statement of Defence and other processes constituted a waiver of his right to complain against the apparent breach of Section 46.

This challenge prompted the question: can a statute of limitation be waived?

He advanced four reasons why this question must be greeted with firm disapprobation.

In the first place, he highlighted the difference between jurisdiction of a court over a subject matter and the applicable law(s) in the exercise of that jurisdiction.

In this case, section 46 is the applicable law in the exercise of jurisdiction over the subject matter. Put differently, that section is the appropriate provision for determining the validity of the sale, by public auction, which took place on 6/2/1998. (It was from that sale that the appellant purchased the first respondent’s property).

In counsel’s view, this provision cannot be waived since it neither relates to tort nor contract, ARAKA v EJEAGWU (2000) 4 NSCQR 308 at 346.

The above principle crystallised from the rule that where a statute creates a remedy and delimits the time within which that remedy can be pursued (section 46 now under reference affords a classical example), that statute erects a limitation period. In that case, that statute of limitation becomes a defence which can not be waived on ground of public policy, ARAKA V. EJEAGWU (supra) at 346.

An impregnable principle has evolved from this formulation: where a court had jurisdiction over a subject matter at the time the cause of action arose, but loses that jurisdiction at the time the action is instituted, the cause of action becomes stale, ADAH v NYSC (2004) 7 SCNJ 374 at 379. Thus, as a measure public policy, the exercise of jurisdiction becomes time-bound.

The effect of the above rule on this case is that the purported steps taken by the parties pursuant to the said rules of the Kwara State High Court are irrelevant in determining the jurisdiction of the court. Such steps are not provided for in the substantive law cited above. The conclusion, then, is that the court wrongly subjected the interpretation of section 46 to the steps taken by the appellant in filing his processes. What the court ought to have considered was the plaintiff’s claim since that was what vested the court with jurisdiction.

In consequence of the above submissions, he opined that the appellant cannot be said to have waived a statutory stipulation under section 46. This is because once there is a breach of an applicable limitation law or Act to a matter such as section 46, the right of enforcement and the right of action; the right of enforcement and the right of judicial relief conferred on the complainant, are denuded. Such a complainant is left with only a bare and empty cause of action, ARAKA v EJEAGWU (supra) at 333 – 224.

He then urged the court to hold that as at 12/8/1998, when the suit was filed, the first respondent had a bare and empty cause of action, KACHALLA v BANK 1 (2001) 10 NWLR (Pt.721) 442 at 466.

He submitted that compliance with section 46 (supra) is a condition precedent to the evolution of a competent suit under this procedure. A party who fails to comply with such an initiating process can not be taken seriously, per I.C. Pats-Acholonu JSC at page 138 in OKOLO v UBN (2004) 17 NSCQR 105.

Next, on the question whether the action of the appellant in filing his statement of defence and other processes amounted to acquiescence to the first respondent’s non-compliance with a purely jurisdictional, statutory provision, counsel invited the court’s attention to the opinion of Niki Tobi JSC in OKOLO v UBA supra at page 118.

Furthermore, counsel pointed out that the defect of non-compliance with section 46 is such that goes to the competence of a court; such defects are fatal since they are inextricably tied to the adjudicatory power of the court, Odu’a Investment (supra) at 617.

In other words, the appellant’s complaint comes to this: the first respondent’s non-compliance with the enabling law (section 46), rendered the suit void ab-initio. Thus, no question of waiver can come in for consideration as the parties cannot waive such an irregularity, Odu’a Investment, (supra) at 617.

Sympathy does not come into play in considering the issue of jurisdiction, NEPA v OBIESE (1999) 10 NWLR (PT.623) 478 at 490.

ARGUMENTS ON THE THIRD ISSUE

This issue borders on the construction to be placed on the word, “May”, employed in section 46.

Learned counsel faulted the lower court’s interpretation of the word “May” as used in the section as being permissive to justify the filing of the suit outside the twenty one days mandatory period. His disagreement with that interpretation is predicated on four grounds.

Firstly, he took the view that a breach of a mandatory enactment renders what has been done null and void. To determine whether such a mandatory enactment is directory or obligatory, “it is the duty of a court of justice to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be constructed,” Odu’a Investment Case (supra) at 652-653.

He submitted that section 46 is a power- conferring provision. He urged the court to determine the purpose for which such power is conferred so as to able to come to the true meaning of the word “May” as used therein.

Relying on JULIUS v LORD BISHOP OF OXFORD (1880) 5 APP. Cas 214, he maintained that if the object for which a power is conferred is for the purpose of enforcing a right, then, a duty is cast on the donee of the power to exercise it for the purpose stipulated.

Accordingly, section 46 empowers the first respondent to vitiate the auction sale on the ground of irregularity. The object of such vested power is to protect his right to the property sold by the auction sale of 6/2/98. Hence, a duty is cast on the first respondent (by the use of the word “May”) to seek redress (by way of exercise of that vested power) within the designated period of twenty one days. He observed that the cardinal object of section 46 is to empower such a person who has a vested right in the property being sold, and to indicate that time to pursue that right is not without limit. Hence, the plain aim and object of the legislature is defeated if section 46 is taken as permissive.

According to him, this is a situation where the command to do a thing in a particular manner implies a prohibition from doing it in any other, expression unius est exclusio alterius. Hence, the specific stipulation of the twenty one days within which to seek remedy forecloses any other method of doing so.

Secondly, he noted that where a statute directs the doing of a thing for the sake of justice or public good, the word “May” suggests a mandatory power. It becomes synonymous with the word “shall”, WORDS AND PHRASES LEGALLY DEFINED, (2nd Edition), Vol. 3 by John & B. Saunders at page.229.

In his view, the first respondent invoked section 46 to seek justice. He is, therefore, under obligation to do so within twenty one days. Any failure on his part is fatal to his suit.

Further more, he referred to the principle of construction of statutes which is that “where a statute creates a duty, the first, and primary, question for judicial decision is: what is the sanction that has been provided for its breach. This is because no statute creates an obligation without anticipating a breach. If there is a sanction, then it is mandatory. It is absolute”, citing Erastus Obioha v Iyibo Kio Dafe (1994) 2 NWLR (pt.325) 157 at 180-181.

Elsewhere, it has been noted that “[a]n absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially”, Maxwell on Interpretation of Statutes, 12th Edition, page 314.

Counsel then invited attention to section 47 of the said Law for the ascertainment of the real intention of the Legislature by the use of the word “May”. Section 47 stipulates that failure of the first respondent to file his case within twenty one days from the time the cause of action arose shall make the sale absolute. That is the sanction prescribed for the anticipated breach of failure to file the suit within twenty one days. Suffice is to say that, if the drafters had intended the word “May” to be merely directory, then section 47 which makes the sale absolute, would not have been included by the legislature. Giving a permissive meaning to the word ‘May’ to allow for the filing of the suit outside twenty one days is inconsistent with the legal presumption of sanction provided for in section 47. Therefore section 47 cannot be wished away as it is a mirror of the real intention of the drafters of section 46 in making the word “May”, mandatory.

Counsel found support for this proposition in Hawad International School Ltd v Mina Project Venture Ltd & Ors (2005) 1 NWLR 579. Section 47 of Sheriffs and Civil Process Law of Kaduna State (which is in pre-materia with section 46 of Sheriffs and Civil Process Law of Kwara State) fell for interpretation in that case. The court took the view that non-compliance with section 47 makes such a sale absolute. Hence, it can no longer be challenged. Thus, where the suit is not filed within twenty one days, the lower court’s jurisdiction is extinguished.

Instructively, there is also authority for the view that where, in the con of a statute, a duty is imposed for the purpose of seeking justice or doing an act for public purpose, as in this case, the word “May” is interpreted as a directory requirement, Ex-Parte Adenaya v Governor-in-Council, Western Region (1962) All NLR 299 at 303-304 (interpreting a similar provision i.e section 16(3) of the Chief Law of Western-Region, Cap 57)

He, therefore, opined that in construing the word “May”, in a permissive sense, the trial court had deliberately expanded its jurisdiction. However, a court cannot expand its jurisdiction beyond the stipulation of the law, African Newspaper v Nigeria (1985) 2 NWLR (Pt.6) 137 at 141.

Next, he enjoined the court to do a constructive reading of sections 46, 47 and 48 of the Sheriffs and Civil Process Law of Kwara State. What will emerge from such an exercise is the need to uphold justice not only for the benefit of the first respondent, but also for the appellant by stipulating a time period within which the first respondent must seek remedy.

The practical implication of non-compliance with the time limit in section 46 is that if the court upholds the first respondent’s complaint on the basis of section 47, the court bailiffs would be visited with the telling provisions of section 48. That is to say, the Sheriff of the High Court must refund the purchase sum to the appellant.

This is no longer possible here. On 6/3/2000, the trial court struck out the names of the Sheriff, the Deputy-Sheriff and the bailiff who conducted the auction sale in this suit. The effect is that no order could be made, in this suit, against these officers.

Thus, to allow the suit to stay would amount to an over indulgence in favour of the first respondent, to the detriment of the appellant. After all, the justification for the application of a statute of limitation is that:

(a) long dormant claims have more cruelty than justice in them

(b) that the defendant might have lost the evidence to disprove a stale claim (it is instructive to note that the Sheriff, Deputy – Sheriff, and the bailiff who conducted the sale had been struck out of the proceedings), and

(c) a person with a good cause of action should pursue it with reasonable diligence, Aremo II v Adekanye (2004) 7 SCNJ 218 at 233.

The draftsman, therefore, had a mandatory power in mind when he employed the word “May” in section 46. The idea was to obviate the abovementioned justifications for statutes of limitation.

The consequence of the first respondent’s tardiness is that he cannot institute a legal proceeding properly or validly after the expiration of the prescribed period, Aremo II v Adekanye (supra) at 233. This derives from the well-known principle that when a court had jurisdiction over a subject matter at the time of the cause of action but lost that jurisdiction at the time the action was instituted, it could not entertain such an action, Mustapha v Governor Of Lagos State (1987) 2 NWLR (PT.58) 539. Similarly, where the law prescribes a particular method of exercising a statutory power such as the statutory power of a twenty one days grace, as in this case any other method 0f exercising it is excluded – see Oguaji v Attorney General (1997) 5 SCNJ 240 at 251.

FIRST RESPONDENT’S RESPONSE

Counsel pointed out that the first respondent’s claim, as per his writ of summons of 11/8/98, is a civil claim within the constitutional jurisdiction of the High Court (Section 236 of the 1979 Constitution applicable at the time the action was filed (now, section 272 of the 1999 Constitution). The action is squarely rooted within the provisions of the Kwara State High Court (Civil Procedure) Rules, 1989 (applicable as at then) as to the commencement of the action by writ of summons. Where a claim is within the substantive enactment under which it is brought, the High Court is not precluded from adjudicating upon it, JIMOH AKINFOLARIN v S. O. AKINOLA (1994) 4 SC NJ 30, 43; ANYAH v DR. FESTUS IYAYI (1993) 9 SCNJ 53, 66 – 67.

Next, he contended that the matter is within the jurisdiction of the court. This is because the claim is seeking declaratory and injunctive orders on the validity of an auction sale. The sale is being challenged on grounds of fraud and illegality for non-compliance with relevant laws particularly, section 22 of the Land Use Act.

He submitted further that from the processes filed, the parties are competent before the High Court. The action is also one, going by the allegations upon which it is founded and the reliefs sought, competent to be initiated by a writ of summons. It has not been argued that the writ of summons contravened any known law.

This provision of the Sheriffs and Civil Process Law is limited in scope. It relates only to an application to challenge irregularities in the conduct of sale. The provision is clear and unambiguous and its words must be given their ordinary and natural meaning, DOGO DAUDA v JOHN SAMCI (1989) 1 M Q L RN20, 21; ONAGORUWA v. ADENIJI (1993) 5 NWLR (PART 293) 317, 334

In construing a statute, the provision has to be interpreted strictly in accordance with the ordinary meaning of the words used. There is no use adorning it with words not contained therein to make it attractive, OGBA v. THE STATE (1992) 2 N.W.L.R. (PART 222) 164,186.

Above all, a statute that seeks to take away vested rights of a citizen like the Sheriffs and Civil Process Law must be construed narrowly and strictly, This is to ensure that the existing jurisdiction is not withdrawn without very clear words to that effect, ANYAH v DR. FESTUS IYAYI (SUPRA) 70.

The first respondent’s suit before the High Court, as formulated in the writ, is founded on fraud, illegality and unconstitutionality. These are not issues for application within the ambit and contemplation of the Sheriffs and Civil Process Act or Law. They are founded on the due process of a writ summons.

Learned counsel canvassed the view that section 46 specifically mentioned “application”. Therefore, the maxim expression unius exclusio alterius, the express mention of one thing automatically excludes any other, applies, UDOH and ORS v. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD and Anor (1993) 7 S C N J 436, 443.

Section 46 only mentioned “application”. It, therefore, cannot be interpreted to affect a writ of summons. It means that the twenty one days limitation applicable to an “application” does not apply to the first respondent’s suit by a writ of summons.

Secondly, the first respondent is not ventilating irregularities in the conduct of the sale of his properties. The issues involved are the fundamental vices of fraud, illegalities and unconstitutionality premised on the circumstance of the sale and non-compliance with the provisions of the Land Use Act 1978 in respect of the purported auction sale of his property covered by a Certificate of Occupancy. The first respondent’s Amended Statement of Claim on pages 25- 29 of the Record, refers.

Above all, it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the same, JIMOH AKINFOLARIN v. S. O. AKINOLA (SUPRA) AT 43

In line with the provision of section 36 of the 1 999 Constitution, the first respondent’s cause of action can only reasonably be taken at a full trial where parties are allowed to ventilate their facts and not by way of a motion or application. The twenty one days provision of the Sheriffs Act is thus not relevant here.

He submitted that in determining the rights of the parties before a court, It is necessary to look at the facts and circumstances of each case in order to decide the rights involved and what the justice of each case deserves, A.E.S.S. LTD v. AINA ADEOSUN & SONS LTD (1993) 5 NWLR (PART 283) 377, 382 – 383. The first respondent’s claim raises issues beyond the contemplation of section 46.

In applying the law to an issue or matter before a court, a court of law only deals with a law which relates to or is relevant to the matter before it. It has no jurisdiction to anticipate the case of the parties and invoke a law not directly apposite in the circumstances of the issue or issues before it, KOTOYE v SARAKI (1991) 8 NWLR (PART 211) 638, 649 – 650. The Sheriffs and Civil Process Law or Act is totally inapplicable.

Thirdly, the first respondent also alleged fraud. An allegation of fraud must be proved beyond reasonable doubt, Section 138(1) of the Evidence Act. This cannot be achieved in an application for irregularity but through a writ of summons. In addition, no length of time is a bar to a relief in the case of fraud, MICHAEL AROWOLO v. CHIEF TITUS IFABIYI (2002) 19 W.R.N. 111, 126 – 127

Finally, the competence and jurisdiction of a superior court are always presumed, MOBIL PRODUCING (NIG) UNLIMITED v. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 12 SCNJ 1, 19

There is no law providing that allegations of fraud, illegality and unconstitutionality of an auction sale cannot be ventilated by a writ of summons, and neither had it been argued that the writ is statute barred. This suit originated by a writ of summons is competent.

The first respondent also addressed the question of waiver.

Counsel contented that even if it is assumed, without conceding, that the issues in the appellant’s application before the trial High Court were well grounded, the substance is that the claimant ought to have complained by way of an “application” to the court and not by filing a writ of summons.

Counsel took the view that it is not competent for the defendant (appellant) to dictate which of the available modes of ventilating a right, a claimant (first respondent) should adopt. Above all, such an objection should be taken at the earliest opportunity and before such a defendant takes a step in the case, KOSSEN (NIG) LIMITED & ANOR v SAVANNAH BANK NIG, LTD (1995) 12 SCNJ 29, 37.

Counsel highlighted the antecedents of the appellant in this suit as follows:

i. Upon service of the writ on him he entered an unconditional appearance.

ii. He filed a Statement of Defence

iii. By application, he amended his Statement of Defence

iv. Upon the coming into effect of the High Court (Civil Procedure) Rules, 2005, he complied by filing written depositions of his witness.

v. He has participated in the pre-trial conference, and the matter is by consent of all parties fixed for hearing.

He submitted that he did all these fully aware that he was responding to a “writ of summons” and not an “application.” It has taken him seven years of consent to the procedure to now realize it was wrong.

Assuming, without conceding, that this suit ought to come by way of “application” the appellant has waived his right to complain and this objection is incompetent. The appellant cannot complain anymore. It has not been suggested that the claimant is limited to any time within which to commence his action by a writ of summons, as distinct from an ‘application’ which is limited to twenty one days.

He submitted that this suit is competent and parties have submitted to the ‘jurisdiction of the trial High Court on the writ of summons.

Furthermore, an objection to a suit on the ground of a statute of limitation is a special defence. The party raising it must do so in his Statement of Defence with all particulars, MOBIL v. L.S.E.P.A. (SUPRA) PG 18 – 19; ALHAJI KANO v OYELAKIN (1993) 12 SCNJ 65, 72.

He contended that this issue was not raised, in any manner howsoever, in either the original Statement of Defence or in the Amended Statement of Defence. He referred to pages 19 – 22 and 37 – 39 of the record of proceedings. The special defence of statute of limitation was not raised. The application, and this appeal on it, coming seven years after the commencement of the suit, are incompetent.

A statute of limitation, assuming it avails the appellant, can be waived and he has waived it, ALHAJI KANO v. OYELAKIN (SUPRA).

The provision of the Sheriff and Civil Process Law, relied upon by the appellant, is merely directory and not mandatory since it affords discretion. If a statute is merely directory, it is immaterial, so far as it relates to the validity of the action taken, ODU’A INVESTMENT CO. LTD v JOSEPH TAIWO TALABI (1997) 7 SCNJ 600, 652 – 653.

Assuming, without conceding, that an application can be used to ventilate fraud, illegality and unconstitutionality, by entering unconditional appearance, filing pleadings and amending same, filing written deposition of his witness in compliance with the High Court (Civil Procedure) Rules, 2005, and participation in the pre-trial conference, in the action spanning seven years, the appellant is deemed to have waived his right to object. He cannot later in the proceedings seek to set the proceedings or the suit aside for incompetence on statute of limitation or howsoever, ODU’A INVESTMENT COMPANY LTD v JOSEPH TALABI (supra) 654.

SECOND RESPONDENT’S RESPONSE

The second respondent first addressed the issue of waiver.

Learned Counsel pointed out that the appellant has actively participated in the suit on appeal for a period of seven years by taking the steps already highlighted above. It took the appellant seven years before he raised the issue of the alleged non-compliance with section 46 for the first time.

He submitted that the failure of the appellant to object to the alleged non-compliance with section 46 amounts to a waiver of his right to complain against. such non-compliance, Auto Import Export v Adebayo (No.2) (2006) 35 W.R.N.P. 1 at 101; Ariori & Ors v Elemo & Ors (2001) 36 WRN 94; (1983) 1 SC 13 at P.25; also, Prince Olufemi Fasade & 15 Others v Prince Iyiola Babalola & Anor (2003) 4 SC (Pt.1) 157 at 166.

Counsel submitted that the right or privilege created by section 46 could be waived and has, indeed, been waived. In the circumstance, the lower court was right in invoking the provision of Order 4 Rule 2(1) (supra) in holding that the appellant had waived his right to complain about any alleged non-compliance with section 46.

The second respondent raised what it called ISSUE NO.2 thus:

WHETHER HAVING REGARD TO THE PLEADINGS, OTHER MATERIALS BEFORE THIS HONOURABLE COURT AND ALL THE CIRCUMSTANCES OF THIS APPEAL, THE PROVISIONS OF SECTION 46 OF SHERIFFS AND CIVIL PROCESS LAW OF KWARA STATE IS (sic) APPLICABLE TO THIS APPEAL WHERE THE 2ND RESPONDENT NEITHER AUTHORIZED ANY SALE NOR RECEIVED ANY PURCHASE PRICE OR ANY CONSIDERATION WHATSOEVER FROM THE PURPORTED SALE OF THE 1ST RESPONDENT’S PROPERTY TO THE APPELLANT

Learned counsel drew attention to page 43 of the record, paragraphs 2 to 11 of the second respondent’s Statement of Defence.

Therein, the following averments can be found:

(2) After the initial suit against the plaintiff, it later agreed with the plaintiff to be periodically offsetting his indebtedness to the first defendant.

(3) it did not authorize Kayode Oyende Esq. and his firm to dispose of the property.

(4) when it got to know that the said Oyende Esq. was concluding steps to dispose of the plaintiff’s property, the first defendant instructed him to suspend the sale.

(5) Kayode Oyende Esq. wrote a warning letter to the High Court Registry to stop action on the purported sale.

(6) subsequently, the said Oyende Esq. clandestinely went ahead to effect the purposed sale of the plaintiff’s property eleven days after his aforesaid letter to the Court.

(7) After the sale, Oyende Esq. deducted a sum of N94,177.55 (Ninety Four Thousand, One Hundred and Seventy Seven Naira, Fifty Five Kobo) only from the purchase price at source and prepared a Union Bank of Nigeria Plc. Bank draft dated 12/2/1998 in the sum of N105,822.45 (One Hundred and Five Thousand, Eight Hundred and Twenty Two Naira, Forty Five Kobo) only which he sought to forward to the first defendant but which the first defendant rejected and returned to Oyende Esq.

(8) The first defendant frowned at the sale by Oyende, and, indeed, disowned it.

(9) The said bank draft was rejected because the sale was unauthorized and because the purported purchase price was ridiculously low and more so when Oyende Esq. unilaterally deducted nearly half of the proceeds of the sale at source.

(10) Kayode Oyede Esq. later accepted that the sale was frustrated as, by his letter dated 31st July, 1998 addressed to the Assistant Chief Registrar (Litigations), he informed the court that the sale of the property was unacceptable to the first defendant (who had directed that the purported purchaser’s money be refunded to him) and that the sale was wrongly and irregularly done prompting him to threaten to sue the High Court Registry.

(11) After the purported sale, the plaintiff was still paying part of his debt to the first defendant at its Ilorin branch and the first defendant was receiving same.”

Counsel further drew attention to page 69 of the Record. The second respondent in paragraph 5 of its counter-affidavit filed on 6th May, 2006 deposed to the following facts.

“5. That the purported auction sale was not authorized by the first defendant.

c) That the said sale could not be done unless with the mandate and authority of the first defendant.

d) That by the pleadings before the court, the written deposition on oath of the first defendant’s witness as well as the attached documents which are all before the court, the purported sale of the claimant’s building was unauthorized and has no foundation.

e) That up till now, the purported consideration of the sum of N200,000 for sale of the property in dispute has not been forwarded to the first defendant.

f) That the original documents of the property in dispute are still in possession of the first defendant.”

Counsel contended that when the property of the first respondent was allegedly sold to the appellant by the officers of the Kwara State High Court, it was not with the consent of the second respondent. He, therefore, submitted that there was no auction sale (known to law) of the property of first respondent by the second respondent.

There could not be no sale without an offer and an acceptance, Son a Breweries Plc. v. Peters (2005) 1 N.W.L.R. (Pt.908) pg 78 at 488; Pan African Bank Ltd. Vs. Ede (1998) 7 NWLR (pt.625) 55; Black’s Law Dictionary (Sixth Edition) at page 1337.

He observed that in this case, it is not in dispute that:-

a) the second respondent did not authorise the sale of the property of the first respondent to the appellant.

b) the purported purchase price of N200,000 (Two Hundred thousand Naira) was never paid to the second respondent up till now.

c) the original title documents in respect of the property in dispute are still with the second respondent.

He, therefore, submitted that there was no sale at all in the circumstances of this case. The purported sale was inchoate, stillborn, null and void and of no effect whatsoever. Yet, nothing can be built on nothing,

Skenconsult (Nig) Ltd v Godwin Ukey (1981) 1 SC 6 at 9; Universal Vulcanizing (Nig) Ltd v. Ijesha United Trading & Transport Company Limited (1992) 11/12 SCNJ, (Pt. II) P.243 at 256

When a sale is a nullity, it can not come within the purview of section 46 of Sheriffs and Civil Process Law.

He submitted that he who comes to equity must come with clean hands. The justice of this case demands that the interest of the second respondent must be well protected. The second respondent disbursed money to the first respondent who used his property in dispute as a collateral security. The first respondent is yet to re-pay the second respondent. Yet attempts are now being made to deprive it of its security through the auction sale which was conducted in bad faith, collusion and/or fraud. All these will inevitably vitiate the alleged auction sale, Okonkwo v C.C.B. (Nig) Plc (2003) 8 N.W.L.R. (Pt.822) P.347.

He took the view that the facts of this case do not fall within the contemplation of section 46 because there was no sale.

He finally pointed out that the application contemplated by section 46 was not mandatory because the section employed the word “may” instead of the word “shall.”

APPELLANT’S REPLY TO ISSUES CANVASSED BY THE RESPONDENTS

In reaction to the issues raised by the first respondent, counsel made three clarifications:

(1) contrary to the first respondent’s assertion, no pre-trial conference was ever held in the case, hence, the appellant could not have participated in it;

(2) the appellant entered a conditional appearance contrary to the first respondent’s assertion.

(3) he attacked paragraph 2.00 of the first respondent’s brief styled “facts of the case” as purely legal arguments and personal opinion of the counsel in total breach of the rule of writing briefs of argument.

In reply to the first point made by counsel for the first respondent, he submitted that the contention of the first respondent is a complete misconception as to the scope of the general (supervisory) power of a High Court of a state (as guaranteed by Section 272 of the 1999 Constitution) and specific legislation regulating exercise of that general power.

Section 46 (supra) is the specific law that vests the court with jurisdiction on the issue before the court. Since it essentially regulates the procedure for the exercise of the general jurisdiction of the court it becomes imperative and therefore relevant because “enactments regulating the procedure in court are usually construed as imperative and this must be so where procedural provisions are given by the court,” IDIGBE, JSC in Aroyeun v Adebanji (1965) 1 All NLR 219.

In essence, where there is a general legislation and a specific enactment on the same issue, the latter takes precedent. Hence, there is no competence to exercise the judicial powers vested in the courts by section 272 (or any other provision) of the 1999 Constitution in the absence of jurisdiction emanating from a breach of specific law, DANGOTE v CIVIL SERVICE (2001) 4 SCNJ 131 & 151.

The first respondent’s contention on pages 7 and 8 of his Brief that non-compliance with the provision of Section 46 (supra) can not operate to vitiate his suit which is founded on allegation of fraud, illegality, and unconstitutionality lacks merit.

Such a contention is a desperate attempt to clothe the lower court with jurisdiction. The word “irregularity”, as used under section 46, is all encompassing. It accommodates such allegations as “fraud,” “illegality” and “unconstitutionality” in the course of sale of immovable property by the Sheriff and Deputy Sheriff of the court. Indeed, the word “irregularities” connotes an act not done in accordance with rule, law and established custom; an improper or dishonest conduct, Merriam Webster’s Collegiate Dictionary, 10th edition at page 618.

The first respondent’s allegations (in his pleading) are: the dishonest conduct, namely, breach of the provision of section 22 of the Land Use Act by the Sheriff, Deputy-Sheriff, the Bailiff of the court and the solicitor to the second respondent at the lower court and failure to follow rules and regulation governing sale of immovable property made pursuant to order of a court as alleged by the first respondent. These are issues of law within the realm of “irregularity” envisaged by section 46 (supra). They are complaints grounded on dishonest conduct or act done “not in accordance with rule, law and established custom”. So, an allegation based on “fraud” “Illegality” unconstitutionality” constitutes “irregularity”, in law. Fatimoh Akinfolahan, (supra) (ii) AESS Ltd, (supra) and (iii) Kotoye cited by the first respondent at pages 8 and 9 of his Brief are consistent with reasons why this court should uphold his contention on this issue.

He further submitted that the first respondent’s contention at page 7 of his Brief that the provision of section 46 relates only to proceedings initiated by “application” is belated.

The word “Application” in section 46 relates to the whole legal proceeding initiated by a writ of summons, Kampe’s Application (1942) 59 R.P.C. 72 at 74. The word “application” also refers to the forms of writ of summons as prescribed by the rule or enactment.

Hence, an aggrieved party who seeks legal redress is deemed to have forwarded his “application” to the court upon filing the prescribed FORM 1 i.e the writ of summon), Order 5 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 1989, (being the Rule in operation at the time of filing the suit) provides thus:

A writ of summons shall be issued by the Registrar or other officers of the court empowered to issue summons, on application. The application shall ordinarily be made in writing by the plaintiff’s solicitors by completing FORM 1 in the Appendix of these Rules…. (The underlining mine for emphasis).

Assuming without conceding that the word “application” is limited to form in the manner of Originating motion, and section 46 being an imperative and specific legislation governing the first respondent’s cause of action, then it is submitted that the lower court has no jurisdiction to entertain the case, the first respondent having initiated the suit in a manner other than the prescribed form by the enabling law. Where a particular method is prescribed by statute, any other method can not be adopted to clothe the court with jurisdiction. The legal maxim expressio unius est exclusio alterius is relevant here, Madukolu & Ors. v Nkendilim (1962) 1 ALL NLR 587 at 593.

Consequently, counsel’s contention on issue No 1 of his brief that the first respondent is at liberty to pursue his redress in any manner on the basis of the general power of the court as vested by the 1999 Constitution is inconsistent with the attitude of the apex court in DONGTOE v CIVIL SERVICE (2001) 4 SCNJ 131 at page 151. It is the legal duty of a court not to act in vain, but for a purpose, Chief of Airforce Staff v Iyen (2005) 21 NSCQR at 687. To proceed to the hearing of the suit when the first respondent’s right of action is deemed extinguished would amount to a fruitless exercise.

Indeed, the plaintiff’s claims vest the court with jurisdiction. The first respondent’s cause of action is entirely against the Sheriff, Deputy Sheriff and the bailiff of the court and, by implication, the second respondent’s solicitor as made clear from the first respondent’s 29 paragraphs Amended Statement of Claim. The only reference to the appellant is in the first relief. By its ruling of 6/3/2000, on page 30-35 of the Record, the court had declined jurisdiction to enquire into the activities of the said officers, on the matter.

Notwithstanding how the reliefs are couched, the main grouse of the plaintiff in the matter is as to the legality or otherwise of the conduct of the said court officers in the sale of the building.

On this premise, he submitted that the core of the matter is the propriety of the sale of the first respondent’s building to the appellant by the Sheriff, Deputy Sheriff and the Bailiff pursuant the order of court dated 29/7/1997 (see pages 49-50 of the Record). The time limit for the exercise of a right of action against such a sale is as stipulated in section 46 (supra).

In effect, the main claim is inextricably tied to, or bound-up with, the ancillary claims, that is, the allegation of fraud, and other irregularities alleged in the first respondent’s Statement of Claim against the Sheriff, Deputy Sheriff and the Bailiffs in the conduct of the said sale.

Since the court has, by its ruling [on page 30-35 of the record], declined power to adjudicate on this issue by virtue of section 2 of the Public Officer Protection Law, it can not sustain the ancillary claims without making a pronouncement or adjudicate on the conduct of the said officers.

Counsel maintained that where the determination of an ancillary claim cannot be done without involving a consideration of the main claim, over which the court lacks jurisdiction, courts are enjoined to decline jurisdiction, Tukur V Taraba State (1997) 6 SCNJ 86 at 115. It is proper, therefore, for the court to decline jurisdiction for non compliance with section 46 because the court can not adjudicate on the relief before it without adjudicating on the conduct of the persons whose names have been struck out. The case of Arowolo v Chief Titus (supra), relied upon by the first respondent is distinguishable.

Counsel further pointed out that though an allegation of crime is raised in this purely civil action, the court can not, for the purpose of avoiding the application of Section 46, treat this suit as if it is a criminal case. In any case, the unfounded allegation of crime is against persons whom the lower court can not investigate.

In reply to ISSUE no 2, counsel adopted his arguments on issue No.1 of the Appellant’s Brief. He stated further that the nature of the jurisdiction complained of here can neither be waived nor can it either by acquiescence of a party or consent of parties confer jurisdiction in court.

So, even if further steps were taken by the appellant, after becoming aware of the first respondent’s said non compliance, such steps can not defeat the appellant’s objection. This must be so for the non-compliance complained of is against an imperative statutory provision which goes to the root of the suit, Odua Investment v Talabi (1997) 7 SCNJ 600 at 618 H4.

Contrary to the first respondent’s contention in (paragraph 4.60 page 11 of his brief), the appellant pleaded the circumstances of the statute of limitation in paragraph 24 (on page 39 of the record). Above all, the nature of jurisdiction being contested is one that the objector can raise by way of motion without pleading same, NONYE v ANYICHIE (2005) 1 SCNJ 306 at 310. Above all, neither a practice direction nor, indeed, a rule of court can override a statutory provision, Auto Import & Export v Adedayo (2002) 18 NWLR (pt.799) 551 at 580.

Thus, KOSSEN v SAVANNAH BANK (Supra), cited by the first respondent is irrelevant to the issue before the court. What fell for consideration was whether non-compliance with a rule’ of court (i.e the Plateau State High Court Civil Procedure) Rules, 1989 can vitiate a proceeding where such objection is raised well after judgment and for the first time on appeal.

On the contrary, the substance of the appellant’s complaint relates to non-compliance with a mandatory and imperative statutory provisions and not the rule of court. The jurisdiction contested arose from non-compliance with a statutory requirement, DANGTOE v CIVIL SERVICE (SUPRA) at 149; also, DANGOTE v CIVIL SERVICE (SUPRA).

Counsel also reacted to the issues raised by the second respondent. On the first issue, he argued that Order 4 (supra) deals with the general effect of non-compliance with (any step taken pursuant to) the provision of the rules. As such, it is not a warrant for the expansion of the jurisdiction conferred by statute (for eg section 46). This is so for a court cannot expand its jurisdiction, Gomble v P.N (Nig) Ltd (1995) 7 SCNJ 19 at 76-37.

The different State High Court rules do not confer jurisdiction on the State High Courts. Rather, they attempt to set out how the jurisdiction derived under the Constitution and all other laws are to be exercised as between the judicial divisions comprised in each State High Court, NGIGE v Capital Bancorp Ltd (1999) 7 NWLR (pt.609) 71 at 80-81.

The respondent’s suit is statute-barred. The implication is that he never had a cause of action, AJAYI v MIL. ADMIN, ONDO STATE (1997) 5 NWLR (pt. 504) 237 at 273. In effect, the purported step taken in filing pleadings is, at best, an attempt by parties to confer jurisdiction on the court in breach of section 46. This, he submitted, is in vain, as parties can not by agreement or acquiescence confer jurisdiction on a court. The nature of the breach by the first respondent’s suit is so fundamental that the lower court could have raised the issue of jurisdiction suo-motu, AJAYI v MIL. ADMIN ONDO STATE (Supra) at 258 – 259.

Once a suit is statute-barred, regardless of the stage or age of the case, the court must not take further steps in the case because where the court lacks jurisdiction, it can not make any order affecting the subsequent determination of the case on the merits, AKINMOBOLA v PILSON F. (1991) 1 SCNJ 117.

Learned counsel derided the second issue in the second respondent’s brief as being incompetent. He prayed that it be struck out for being in breach of Order 3 Rule 14(2) of the Court of Appeal Rules, 2002 (sic).

Although at page 3 (line 4.02) of its brief, the second respondent hinged the said issue 2 on Ground 4 of the appellant’s Notice of Appeal, he submitted that the facts alluded to, and the argument proffered by the second respondent in the said issue 2 do not in any way relate to the particulars of the said Ground 4. The question of law raised under that ground is as to the appropriate legal construction of the word “may” in the con of the provision of section 46.

On the contrary, the second respondent merely quoted selective paragraphs of his pleading and its counter affidavit of 6/5/2006 without reference to the appellant’s processes filed thereto [at page 8 of the Brief] to arrive at certain declarations.

Counsel observed that the above position taken by the second respondent in introducing an issue of law not covered by the Notice of Appeal of the appellant is improper. It also constitutes an abuse of the process of the court because an issue for determination must arise and to relate to the Grounds of Appeal, GARBA v THE STATE (2000) 2 SCNQR 402. Above all, counsel can not canvass arguments that are inconsistent with those in the Grounds of Appeal, DERIS INTERNALIZE v SHALL D.P. PORT-HARCOURT (1966) ALL NCR 7 at 10. It is also in breach of Order 3 Rule 14(2) of the Court of Appeal Rules, 2002 (sic). This order permits a respondent, who seeks to retain a judgment/order but, requests a confirmation of that judgment/order in its favour on other grounds, to have recourse to a Respondent’s Notice, ELEMA v NEPA (2000) 2 NWLR (pt.644) 336 at 346.

However, by Order 3 Rule 14 (2), a Respondent’s Notice must be filed when the respondent desires that the decision of that court should be affirmed on grounds other than those relied on by the court by giving notice of that contention, NTUKS v NEPA (2000) 4 NWLR (pt.654) 639 at 645. No such notice was given by the second respondent.

Counsel, therefore, submitted that the grounds argued in the second respondent’s brief, to justify its request for the ruling appealed against, are not related to the appellant’s Ground 4. They are, also, quite different from the grounds proposed by the presiding judge in her ruling of 28/7/2006. Order 3 Rules 14(2) and (4) (a) require that the second respondent must file a Respondent’s Notice. The said notice must also be served on the appellant within fifteen (15) days after the service of the notice of appeal on the respondent. Non-compliance with this provision renders the argument thereon incompetent, NIMOTA OLUMO & CO. O.G.F. ADEBOLA (1964) ALL NLR 67 at 72.

CONSIDERATION OF THE ARGUMENTS

Now, as shown above, the High Court of Kwara State (coram: Folashade Ojo J) ordered the disposal of the first respondent’s property — by public auction. Pursuant to that order, the Sheriffs of the court conducted a public auction on 6/2/1998.

On 11/8/1998, he originated a suit at the lower court. He beseeched the court to favour him with an order setting aside the writ of attachment, the auction notice, warrant of possession and sale of his building. Learned counsel for the second- the fifth defendants impugned the competence of the suit as it affected them (Sheriff; Deputy Sheriff and Bailiffs) for being statute-barred. He invoked section 2(a) of the Public Officers Protection Law. In a ruling dated 6/3/200, the learned trial Judge, Folayan J upheld the said objection of the second – fifth defendants. The court struck out the action as it affected them.

On the 18th May, 2006, almost seven years after the ruling, and eight years after the suit was commenced, the appellant, by way of motion, moved the lower court to dismiss the suit for being statute barred. Folayan J heard the application. In a ruling of 26/7/2006, His Lordship dismissed the application. In the said ruling, the lower court made far-reaching pronouncements that aggrieved the appellant herein. At page 79 of the Records, the court settled the issue of the time of the accrual of the cause of action. Listen to this:

On the statute of limitation … there is no doubt the said law allows an aggrieved party to bring an application to set aside the auction sale that is allegedly wrongly carried out within twenty one days and there is no contention that such application was not filed within 21 days, this suit was filed on 11th August, 1998 and the act complained of was carried out on 6th February, 1998.

The court then invoked Order 4 Rule 2(1) (supra) to “give an equitable relief to the Respondent” (page 81). The court also held that the language of section 46 is not mandatory because the draftsman employed the word “May”. Now, section 46 provides thus:

At anytime within 21 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 same 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…

Learned counsel for the appellant took the view that the lower court was wrong in holding that the provision is not mandatory.

This issue once again raises the question of the relevance of limitation statutes in our corpus juris. Limitation statutes owe their evolution to considerations founded on public policy. First, there is the ancient principle which is now famous for its ubiquity. It is expressed in Latin: interest rei publicae sit finis litium – it is in the public interest that there should be an end to litigation.

In addition to this requirement of public policy, the Law has also taken the view that a state claim may not only be unfair to a defendant, it may actually wreak cruelty on him.

The reason is simple: with the vagaries of events; the concatenation of unavoidable circumstances and the sheer passage of time, such a defendant stands the chance of losing material pieces of evidence which hitherto formed part of the formidable arsenal of his defence. Limitation statutes thus evolved to vouchsafe to such a defendant a statutory defence to such a stale action. That is why such an action is said to be statute barred! This formulation has an illustrious judicial ancestry, Aremoll v Adekanye (2004) 42 WRN 1; Ogboru v SPDC Co Nig Ltd (2005) 26 WRN 128.

It is, however, important to note that what the statute bars is the action and not the cause of action. This important distinction is not often understood. Whereas the cause of action refers to the facts or combination of facts which the plaintiff must adduce to be entitled to any relief, the action itself is the medium which affords him the opportunity to ventilate his bundle of facts, Patkum Industries Ltd v Niger Shoes Ltd (1988) 5 NWLR (pt. 93) 138. Put differently, a plaintiff’s right of action eventuates from the existence of a cause of action, Ikine v Edjerode (2001) 12 KLR (pt 131) 3711, 3724

In the con of this distinction, what emerges is that whereas the plaintiff’s cause of action remains intact, although in a vacuous and bare form, a statute of limitation denudes him (the plaintiff) of his action, that is, his right of enforcement; the right to judicial relief, Egbe v Adefarasin (1987) 1 NWLR (Pt 47) 1; Eboigbe v NNPC (1994) NWLR (Pt. 347) 549. To be able, therefore, to enjoy the dividends which recourse to the judicial process affords, such a plaintiff must commence his action within the period stipulated by statute. In other words, it is a mandatory requirement, Sidi Ali v Takwa (2004) 1 WRN 180. Thus, legal proceedings cannot be validly instituted after the expiration of the prescribed period, Sanda v Kukawa Local Government (1991) 2 NWLR (pt 174) 374.

Now, in this case, the lower court held otherwise. His reason is that the word “may” was employed in section 46. Is this interpretation correct?

The interpretation of the word “may” has always posed some difficulties. In some circumstances, the word has been held to import discretion. However, in other circumstances, it has been held to be mandatory, Ejiogu v Onyeagocha (2004) 30 WRN 141; Mokelu v FCWH (1976) ALL NLR (pt 1) 176; (1976) 3 SC 35.

So, how does one approach the interpretation of the word “may” in section 46? This calls for an exploration of the intention of the lawmaker. What then was the intention of the law maker in granting an aggrieved party the authority to apply to set aside a sale?

Sections 47 and 48 are relevant here for they clearly demonstrate that the law maker did not intend to extravagate words by delimiting the time within which an aggrieved party can take steps to vacate a sale of an immoveable property.

From the tenor of section 47, it is obvious that failure to comply with the requirement of section 46 attracts the dire consequence ordained in section 48. This being the case, I take the view that the duty imposed by section 46 is neither facultative nor optional. It is mandatory, Bakare v AG (Federation) (1990) 5 NWLR (pt.152) 516; Adesola v Abidoye (1999) 12 KLR (pt. 93) 3183, 3211.

The clear effect of both sections is that a plaintiff who fails to invoke his right of action in time, risks the extinction of such a right of enforcement; of entitlement to a judicial relief, A.C.B. PLC v N.T. S. (Nig.) Ltd (2007) 1 NWLR (pt 1016) 596,637; Ibrahim v JSC Kaduna (1998) 12 KLR (pt 73) 2489.

As shown above, the lower court fell back on Order 4 Rule 1(1) of the Rules of court. In so doing, he held that the provision of the said rule was a remedial authority for “treating the non-compliance with 21 days within which [the] application can be made as [an] irregularity”.

Expectedly, the appellant’s counsel was not persuaded by this approach. He contended that Order 4 (supra) only remedies any technical inadequacy in relation to steps taken pursuant to the Rules generally. It can not redeem any defect relating to a statutory provision. The sole objective of Order 4 Rule 1(1), in his view, is to deem as regular any defect emanating from a party’s failure to comply with the requirement of the Rules of court.

Now, Order 4 Rule 1(1) of the Kwara State High Court (Civil Procedure) Rules, 2005 provides that:

Where in beginning or purporting to begin any proceedings, or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirement of these Rules, whether in respect of time, place, manner, form or content …. (emphasis supplied)

There is considerable merit in the contention of appellant’s counsel to the effect that Order 4 Rule 1 (1) can only cure a step taken pursuant to the Kwara State High Court (Civil Procedure) Rules, 2005. In this case, it is not the Kwara State High Court Rules that enjoin an aggrieved party to take steps to set aside an auction sale. Rather, it is section 46.

I find merit in the argument that proceedings taken pursuant to the said section 46 cannot be within the ambit of the requirement of the Rules as contemplated by Order 4. I am inclined to accept the forceful contention that the trial court was, therefore, wrong in invoking Order 4 in order to remedy the applicant’s non-compliance with section 46.

The said section has made provisions for the steps to be taken. Therefore, the jurisdiction of a court can only be properly activated when those steps are taken within the time allowed by the statute. The lower court was, therefore, wrong when it prayed Order 4 in aid of the respondent contrary to the tenor and intendment of the said statute, ONUORAH v KADUNA (2005) 21 NSCQR 130 at 140.

The net effect is that non-compliance with the said provision of section 46 cannot constitute a mere irregularity that is curable by Order 4. The reason is simple: a statutory provision such as the section under reference cannot be subjected to a rule of court whose sole purpose is to aid procedure in that court.

Section 46 provides for twenty one days within which to apply to set aside a sale on ground of irregularity in the conduct of such sale. There is no provision for extension of time therein. If an aggrieved party fails to meet the statutory requirement, the trial court will be acting in excess of its jurisdiction by purporting to invoke domestic rules of court to remedy the situation, A.C.B PLC v N.T.S.(Nig) Ltd (2007) 1 NWLR (pt. 1016) 596, 636.

Learned counsel for the first respondent pointed out that the first respondent’s claim, as per his writ of summons of 11/8/98, is a civil claim within the constitutional jurisdiction of the High Court (Section 236 of the 1979 Constitution applicable at the time the action was filed and which section is equivalent to section 272 of the 1999 Constitution). So, the action is squarely rooted within the provisions of the Kwara State High Court (Civil Procedure) Rules.

Next, he contended that the claim seeks declaratory and injunctive orders on the validity of an auction sale. The sale is being challenged on grounds of fraud and illegality for non-compliance with relevant laws particularly, section 22 of the Land Use Act. These are not issues for application within the ambit and contemplation of the Sheriffs and Civil Process Law. They are founded on the due process of a writ summons.

He argued that this provision of the Sheriffs and Civil Process Law is limited in scope. It relates only to an application to challenge irregularities in the conduct of sale.

Learned counsel canvassed the view that section 46 specifically mentioned “application”, therefore, the maxim expressio unius exclusio alterius, applies. The section, therefore, cannot be interpreted to affect a writ of summons. It means that the twenty one days limitation applicable to an “application” does not apply to the first respondent’s suit by a writ of summons.

Above all, it is the claim of the plaintiff which determines the jurisdiction of a court entertaining the same, JIMOH AKINFOLARIN v. S.O. AKINOLA (SUPRA) AT 43.

In line with the provision of section 36 of the 1999 Constitution, the first respondent’s cause of action before the High Court is one which can only reasonably be taken at a full dressed trial where parties are allowed to ventilate their facts and not by way of a motion or application. The twenty one days provision of the Sheriffs Act is thus not relevant here.

He submitted that in determining the rights of the parties before a court, It is necessary to look at the facts and circumstances of each case in order to decide the rights of the parties involved and what the justice of each case deserves, A.E.S.S. LTD v. AINA ADEOSUN & SONS LTD (1993) 5 NWLR (PART 283) 377, 382 – 383.

The first respondent’s claim raises issues beyond the contemplation of section 46.

Thirdly, the first respondent also alleged fraud. An allegation of fraud must be proved beyond reasonable doubt, section 138(1) of the Evidence Act. This cannot be achieved on an application for irregularity but through a writ of summons. In addition, no length of time is a bar to relief in the case of fraud,

MICHAEL AROWOLO v. CHIEF TITUS IFABIYI (2002) 19 W R N 111, 126 – 127.

Finally, the competence and jurisdiction of a superior court are always presumed, MOBIL PRODUCING (NIG) UNLIMITED v. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 12 SCNJ 1, 19.

There is no law providing that allegations of fraud, illegality and unconstitutionality of an auction sale cannot be ventilated by a writ of summons, and neither had it been argued that the writ is statute barred. This suit originated by a writ of summons is competent.

With due respect to learned counsel, his submission on the constitutional jurisdiction of the High Court is premised on the misconception of the difference between the general or substantive jurisdiction of the State High Court and the special jurisdiction exercisable by the court pursuant to special statutory provisions, see, C. C. Nweze, “Jurisdiction of the State High Court”, in E. Azinge (ed.), Jurisprudence of Jurisdiction (Abuja: Oliz Publisher, 2005) 88.

Thus, the jurisdiction conferred on the court by virtue of section 272 (supra) does not, in any way, derogate from the jurisdiction which the High Court is vested with by such special enactments like the Kwara State Sheriffs and Civil Process Law under consideration.

Surely, the effect of section 272 is not to vitiate the exercise of the jurisdiction conferred on the court by such enactments. Hence, where such enactments erect antecedent conditions for the invocation of such special jurisdiction, the conditions must be complied with before the jurisdiction of the court can be properly activated. Section 272 can not avail a party who fails to comply with such conditions precedent. This derives from the old maxim, generalias pecialibus non derogant – general [provisions] do not derogate from special [provisions], Kraus Thompson Organisation v NIPSS (2004) 17 NWLR (pt. 901) 44, 65.

Counsel also contended that the grounds of fraud and illegality for non-compliance with relevant laws, particularly, section 22 of the Land Use Act are not issues for application within the ambit and contemplation of the Sheriffs and Civil Process Law. According to him, section 46 is limited in scope. It relates only to an application to challenge irregularities in the conduct of sale.

Put differently, I understand counsel’s submission to mean that section 46 is in-applicable because the plaintiff’s case is founded on the fraud perpetrated against him in the circumstances of the sale of his property.

This submission is in-accurate. It has long been established that it is only in cases of concealed fraud that the statute of limitation becomes inoperative. Thus, the true position is that the statute of limitation does not apply in cases of concealed fraud so long as the party defrauded remains in ignorance of the fraud without any fault of his own.

The doctrine of concealed fraud traces its roots to the succinct formulation of the English position on the matter by Lord James of Hereford in the old case of Bulli Coal Mining Co v Patrick Hill Osborne and Anor (1899) A. C. 351, 363. This doctrine also applies to limitation statutes in Nigeria, Arowolo v Ifabiyi(2002) 4 NWLR (pt. 757) 356.

So, where the cause of action is concealed by fraud, the period of time does not commence until the fraud is discovered, Nwosu v Offor (1997) 1 KLR (pt. 47) 272, 278.

So, counsel’s submission can only be meritorious if the plaintiff’s case falls squarely within the ambits of the definition of concealed fraud. I am afraid that this is not the position here.

In elaboration of his second issue in his Brief, Adedayo Adediji, learned counsel for the second respondent, in paragraph 6.01, outlined the sequence of events that culminated in the present forensic contest. (see, paragraph 6.01, citing paragraphs 2 to 11 of the second respondent’s Statement of Defence). G. Akande, for the appellant, took a swipe at the propriety of this second issue. I endorse his strictures in toto.

From paragraphs 4, 5, 6, 7 and 9 of the said Statement of Defence, it is not in doubt that the first defendant became aware of the said auction sale twelve days after the conduct of the public auction [see, letter dated February 18, 1998 and another letter dated May 28, 1998, pleaded in paragraph 9 supra]. It is common ground that the suit was filed on August 11, 1998. In effect, whatever arithmetical calculation is employed, the simple fact is that the suit was commenced after twenty one days contrary to the stipulation of the said Law.

In addition to the question of fraud raised by counsel, the sale is, also, being challenged on grounds of illegality for non-compliance with relevant laws particularly, section 22 of the Land Use Act. Counsel argued that these are not issues for application within the ambit and contemplation of the Sheriffs and Civil Process Law.

Again, with respect, this submission flies in the face of section 46 which empowers an aggrieved party to apply to set aside a sale of property “on grounds of irregularity in the conduct of such sale”.

Counsel’s submission that the challenge of the said sale on grounds of illegality for non-compliance with relevant laws particularly, section 22 (supra) is beyond the provision of section, can only be sustained on a restrictive definition of the word “irregularity” in the section. Unfortunately, the lexical meaning of the word does not support such a restrictive view.

Surely, a complaint on the ground of non-compliance with relevant laws is a complaint targeted at the conduct of a sale on the ground of irregularity.

The noun “irregularity” derives from the French word irregularities. It is defined as an improper or dishonest conduct, (Webster’s Ninth New Collegiate Dictionary, page 640); an instance of an action or behaviour, etc which is not in conformity with laid down Jaws, Chambers 20TH Century Dictionary (1983 edition) page 762; Olarenwaju v Afribank (2001) 37 WRN 41, 49.

The plaintiff, at the lower court, is essentially complaining against the improper manner in which his property was sold. His allegations of fraud and illegality etc boil down to the fact that dishonesty characterised the conduct of the said sale. Accordingly, I find no merit in the contention that his allegations are not within the contemplation of section 46.

In all, therefore, the answer to the first issue is that the lower court wrongly invoked Order 4 of the High Court Rules in other to clothe the plaintiff with a right of action which had become sterile by virtue of his non-compliance with the mandatory provision of section 46.

THE SECOND ISSUE

This issue was couched in an inelegant manner:

Whether in the circumstance of this case (sic) issue of jurisdiction raised (sic) for non-compliance with a mandatory statute can constitute a waiver of statute of Limitation.

The first respondent’s formulation of the said issue is more concise. It is:

Whether the Appellant’s application before the trial High Court is competent and whether by his conduct the Appellant has not waived his right to complain assuming he has any.

The appellant’s counsel submitted that the learned trial judge was wrong when he dismissed the appellant’s preliminary objection on the ground that it was brought seven years after the suit was filed.

The issue of jurisdiction is so sacrosanct that it can be raised at any stage of the proceeding. Indeed, with leave, it can even be canvassed at the Supreme Court, AMADI v NNPC (2000) 2 SCQR 9.

He observed that the appellant entered a conditional appearance (see pages 3 and 39 of the Record,). In addition, by paragraph 24 of his amended Statement of Defence, he gave notice of his intention to contest the competence of the court’s jurisdiction in the case.

In this case, Section 46 is the applicable law in the exercise of jurisdiction over the subject matter. Put differently, that section is the appropriate provision for determining the validity of the sale, by public auction, which took place on 6/2/1998. (It was from that sale that the appellant purchased the first respondent’s property).

He submitted that where a statute creates a remedy, and delimits the time within which that remedy can be pursued (section 46 now under reference affords a classical example), that statute erects a limitation period. In that case, that statute of limitation becomes a defence which can not be waived on ground of public policy, ARAKA .V. EJEAGWU (supra) at 346.

Counsel for the first respondent took the view that it is not competent for the defendant (appellant) to dictate which of the available modes of ventilating a right, a claimant (first respondent) should adopt. Above all, such an objection should be taken at the earliest opportunity and before such a defendant takes a step in the case, KOSSEN (NIG) LIMITED & ANOR v SAVANNAH BANK NIG, LTD (1995) 12 SC N J 29, 37.

Counsel highlighted the antecedents of the appellant in this suit. He submitted that by his conduct, the appellant is deemed to have waived his right to object. He cannot later in the proceedings seek to set the proceedings or the suit aside for incompetence on statute of limitation or howsoever, ODU’A INVESTMENTCOMPANY LTD v JOSEPH TALABI (SUPRA) 654.

Furthermore, an objection to a suit on the ground of a statute of limitation or otherwise is a special defence which must be raised in his Statement of Defence, MOBIL v. L.S.E.P.A. (SUPRA) PG 18 – 19; ALHAJI KANO v. OYELAKIN (1993) 12 SCNJ 65, 72.

He contended that this issue was not raised, in any manner howsoever, in either the original Statement of Defence or in the Amended Statement of Defence. He referred to pages 19 – 22 and 37 – 39 of the record of proceedings. The special defence of statute of limitation was not raised.

A statute of limitation, assuming it avails the appellant, can be waived and he has waived it, ALHAJI KANO v. OYELAKIN (SUPRA)

The second respondent’s counsel also drew the court’s attention to the above steps taken by the appellant. He submitted that the failure of the appellant to object to the alleged non-compliance with section 46 amounts to a waiver of his right to complain against such non-compliance, Auto Import Export v Adebayo (No.2) (2006) 35 W.R.N.P. 1 at 101; Ariori & Ors v Elemo & Ors (2001) 36 WRN 94; (1983).1 SC 13 at P.25.

He, also, cited the case of Prince Olufemi Fasade & 15 Others v Prince Iyiola Babalola & Anor (2003) 4 SC (Pt.1) 157 at 166.

He submitted that the right or privilege created by section 46 could be waived and has indeed been waived by the appellant. In the circumstance, the lower court was right in invoking the provision of Order 4 Rule 2(1) (supra) in holding that the appellant had waived his right to complain about any alleged non-compliance with section 46.

What provoked this issue is the position of the lower court. At page 80 of the Record, he held that the appellant had waived his right.

Now, certain clarifications are imperative here. I have perused the processes filed at the lower court. At pages 3 and 39 of the Record, the Amended Statement of Defence of the appellant can be found. Paragraph 24 is pertinent. For its bearing on this issue, I take liberty to reproduce it:

The 2nd Defendant will contend at and/or before the hearing of this case that the action be dismissed or struck out:

A For want of jurisdiction in the manner of joinder of parties

B The claims against the 2nd Defendant should be struck out as being bad in law as both the writ of summons and its Statement of Claim are embarrassing, frivolous and disclose no cause of action or reasonable cause of action and are an abuse of court process.

So, in effect, contrary to the finding of the lower court and the submissions of counsel for the first and second respondents, the appellant has always maintained his challenge of the competence of the court to entertain the matter. More importantly, however, the question to be considered apropos this issue is whether from the tenor of section 46, the question of waiver even arises.

The provision of section 46 has already been reproduced above. I have read the section over and over again. The drafting technique employed in it reminds me of the mercantile practice of the English livery man called Thomas Hobson.

His tactic was quite slippery. He hired out horses to his customers. However, he insisted that a customer could either take the horse nearest to the door or none at all. The English noun “Hobson’s choice” evolved from the womb of this practice. Hence, the word now means an apparently free choice when there is no real alternative, Webster’s Ninth New Collegiate Dictionary, page 574.

Like Thomas Hobson, the draftsman of section 46 leaves an aggrieved party to either take the option of applying to set aside a sale within twenty one days or he permits the extinction of his right to a judicial remedy. Simply put, therefore, the section erects a mandatory requirement which does not admit of any waiver, Adesola v Abidoye (1999) 12 KLR (pt. 93) 3183, 3211. It is thus of no moment that this application was commenced seven years after the suit was commenced.

What is at stake is the fundamental question of jurisdiction. It is settled that the challenge of a suit on this score can be taken at any time. In deed, even with leave, it can be taken at the Supreme Court, Elugbe v Omokhafe (2004) 18 NWLR (pt. 905) 319; F.R.N v Gold (2007) 11 NWLR (pt. 1044) 1. Contrary to the position taken by the lower court that this objection could not be taken after the appellant had participated in the suit for seven years, the truth is that the objection was properly taken notwithstanding the length of time, Galadima v Tanbai (2001) 11 NWLR (pt. 677) 1.

Even if the appellant entered an unconditional appearance, he was still within his right to have canvassed the question of want of jurisdiction, Bank of Ireland v Union Bank of Nigeria (1998) 7 SCNJ 385; Ogboru v S.P.D.C (NIG.) LTD (2005) 17 NWLR (pt. 955) 596; Osibamowo v Osibamowo (1991) 2 NWLR (pt. 177) 85. I, therefore, resolve this issue in favour of the appellant. I hold that he rightly challenged the jurisdiction of the court. I also hold that his conduct in participating in the case for seven years did not amount to a waiver. The section of the statute in question does not admit of the notion of waiver.

The third issue relates to the construction of the word “may”. I had dealt with it while resolving the first issue. For the avoidance of doubt, I wish to re-emphasize the point that the duty imposed by section 46 is neither facultative nor optional. It is mandatory, Bakare v AG (Federation) (1990) 5 NWLR (pt 152) 516; Adesola v Abidoye (1999) 12 KLR (Pt. 93) 3183, 3211.

In the con of section 46, I rank the word “May” equipollently with the word “shall”. In that section, the two words are not antonymous. Rather, they are synonymous. The clear effect of the section is that a plaintiff who fails to invoke his right of action in time, risks the extinction of such a right of enforcement; of entitlement to a judicial relief, A.C.B. PLC v N.T.S. (Nig.) Ltd (2007) 1 NWLR (pt 1016) 596, 637; Ibrahim v JSC Kaduna (1998) 12 KLR (pt 73) 2489.

Now, counsel for the first respondent took the view that Section 46 only mentioned “application”. According to him, it cannot be interpreted to affect a writ of summons. It, therefore, means that the twenty one days limitation applicable to an “application” does not apply to the first respondent’s suit by a writ of summons.

With respect, there is no merit in this view. I am in agreement with the appellant’s counsel that the word “Application” in section 46 relates to the whole legal proceeding initiated by a writ of summons. He is right in his contention that the word “application” also refers to the forms of writ of summons as prescribed by the rule or enactment.

Order 5 Rule 1 of the Kwara State High Court (Civil Procedure) Rules, 1989, (that was the Rule in operation at the time of filing the suit) affords a typical example. It provides:

A writ of summons shall be issued by the Registrar or other officers of the court empowered to issue .summons, on application. The application shall ordinarily be made in writing by the plaintiff’s solicitors by completing FORM 1 in the Appendix of these Rules…..

In all, having regard to all i have said, I find considerable merit in this appeal. I hereby enter an order allowing it. In consequence, I set aside the ruling of the lower court. I hold that the action is statute-barred.

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Other Citations: (2008)LCN/2849(CA)