Supreme Court backs sale of Lagos property

For failure to halt the sale of her property within the stipulated time, the Supreme Court of Nigeria, has conferred ownership of No 23, Osipitan Street, Bariga, Lagos, on one Rev. CJ.M. Fajemirokun, practicing under the name and style of Chris Fajemirokun and Associates.

Justice Suleiman Galadima, said since the appellant was late in the day to have raised an objection over the sale of her property, she had lost her right to do so, more so, when the new owner bought into the building, which was attached by a court verdict to satisfy a judgment.

The facts of the case were that CLM Fajemirokun, second respondent on appeal against Mrs. Titilayo Cole, the appellant had been previously tied in Lagos State High Court, Ikeja Division.

Fajemirokun, as plaintiff, was successful and the sum of N169,000 was awarded in his favour against the appellant.

Consequently, a writ was filed to cause execution against appellant’s moveable property and that execution yielded sum of N15, 812.50. And because the sum was insufficient to satisfy the judgment debt, Fajemirokun consequently applied to the court for issuance of a writ of attachment and sale of the immovable property of the appellant.

The court eventually made an order for writ of attachment to issue against the immovable property.

But appellant after the order of writ of attachment of her property, still failed, neglected and/or refused to pay the judgment debt.

However, on 24th April 1994, she filed a motion seeking to set aside the order of writ of attachment by the court.

Upon the dismissal of the application of the judgment debtor, the Deputy Sheriff, Lagos State High issued a Public Notice of Auction sale, advertising the sale of the property of the judgment debtor.

On November 23, 1994, the sale was conducted publicly and the appellant’s property was sold of at N450,000 to the Fajemirokun, the highest bidder and accordingly a certificate of purchase of the property was issued to him, after 21 days from the date of sale.

Dissatisfied with the sale of her property, the judgment debtor, instituted a fresh suit No. 1D/3228/94 on 23/12/94 challenging the sale and seeking to declare it null and void.

In reaction, Fajemirokun filed a notice of preliminary objection challenging the jurisdiction of the court to try the suit on grounds that the issues raised in suit No. 1D/3228/94 had been raised and determined in the previous Suit No. ID/1082/90 and that the sale of Cole’s property had become absolute pursuant to the provision of the Sheriff and Civil Process Law of Lagos State.

Although it was established that it took Cole 30 days to challenge the sale, which was against the law, the trial Judge had ruled that there was no merit in the preliminary objection filed by Fajemirokun. He then dismissed the preliminary objection to try the suit.

Being dissatisfied Fajemirokun appealed to the court below. On October 4, 2005, the court below allowed Fajemirokun’s appeal.

Rejecting that verdict, Cole appealed against it to the Supreme Court where she contended that Justices of the Court of Appeal erred in law when they held “that issue of estoppel has been successfully raised to sustain the plea of Res Judicata”.

Suleiman said the ruling of the trial Court that it had jurisdiction to entertain the present suit was due to the averments of fraud contained in the statement of claim, whereas the substance or issue in the suit was a challenge and a disguise to set aside the decision and auction carried out by virtue of an order made by a Court of coordinate jurisdiction in the early Suit No. ID/1082/90. This was not proper. “In view of the foregoing, the 1st Respondent can rightly raise issue estoppel to sustain plea of res judicata in the circumstances.”

According to the Apex Court, “Even if the allegation contained in the Statement is proved, it cannot affect the sale of the property to the appellant because he has acquired legal title over it by virtue of the Writ of Possession granted to him. If the application had been made timeously, and the sale was eventually set aside the appellant would be entitled to receive back the money he paid for the purchase while the 2nd Respondent will still be left with the remedy of executing the Judgment obtained in Suit No. ID/1082/90”.

The court added: “The failure on the part of the appellant to set aside the sale of her property within 21 days of the sale of her property under S.47 of the Act (supra) has exposed her as an indolent party who has not come to Court with clean hands.

“Consequently, the provisions of Sections 48 and 50 of the Law reproduced above, become effectual. She lost the armour provided for in the said S.47 of the Act. She failed to utilize same as a “saving grace and anchor” to salvage her immovable property, the subject of a writ of attachment. It is too late in the day to cry over split milk.”

Galadima concluded: “In view of the foregoing I consider this appeal as lacking in merit and it is accordingly dismissed, while the decision of the court below is affirmed. I award costs of N100,000 against the appellant but in favor of the first and second respondents jointly.