John Ojobo Agbeyegbe V. Festus Makene Ikomi & Another (1953)

LawGlobal Hub Judgment Report – West African Court of Appeal

Immovable property—Sale by auction—Action to set aside sale—Case struckout—Application to re-list—Discretion—Relevant factors—Inadequate explanation of undue delay—Position of bona fide purchaser for value-” Balance of justice “.

Facts

At a public auction sale on 27th May, 1938, held pursuant to leave of the Court to issue execution against land belonging to the appellant judgment-debtor, the land was purchased, subject to the approval of the Governor, by the respondent. A claim by the appellant, brought within the statutory period of twenty-one days, to set aside the sale, was struck out by the Court on 7th July, 1938, on the application of the respondent, who contended that inasmuch as the Governor had not at that date approved the purchase, there had been no sale.

No further proceedings were taken by the appellant until, on 15th September, 1947, he moved the Supreme Court of Nigeria to re-list the suit which had been struck out on 7th July, 1938. As reasons for the delay the appellant gave the death of his legal advisers, his own illness and the difficulties of ascertaining his true position in the matter. The respondent, during his occupation following the approval of the purchase by the Governor, was alleged to have removed some of the buildings on the land and rebuilt others.

The Judge of the Supreme Court granted leave to re-list the suit, and on the hearing of the action found that the sale was irregular and null by reason of inadequate compliance with the Court’s directions relating to advertising the auction sale, and that the appellant had sustained substantial-injury by reason of the irregularity. An appeal by the respondent to the West African Court of Appeal was allowed on the ground that in the exercise of his discretion the trial Judge did not appear to have taken into consideration all the relevant circumstances, including such questions as to the extent of the delay in making the application to re-list the case, the reasons for the delay, the nature of the claim and the effect of granting leave on the rights of the respondent. On appeal by the appellant:—

Held

That the length of the delay, the inadequacy of the explanation of the delay, and the consequences of setting aside the sale of land as against a bona fide purchaser for value who had been in occupation of the land during the whole period of the nine years and had apparently altered the buildings thereon caused a ” balance of justice ” in favour of the respondent within the meaning of the dictum of Lord Blackburn in Erlanger v. New Sombrero Phosphate Company (1) at p. 1279, and the case ought not to have been re-listed, and having been re-listed ought to have been dismissed.

Appeal dismissed.