1. M.O. OKOYE & SONS
2. M.O. OKOYE (APPLICANTS)
1. STANDARD BANK OF WEST AFRICA LTD. (1st RESPONDENT)
2. H.J. UMARU (2nd RESPONDENT)
(1971) All N.L.R. 396
Division: High Court, Benue-Plateau
Date of Judgment: 5th March, 1971
Case Number: SUIT NO. JD/9A/1970
Before: Bate S.P.J.
Application to set aside sale in execution of immovable property.
(1) That the only statutory power vested in the High Court to set aside an execution sale of immovable property is that conferred by the Sheriffs and Civil Process Law, s. 47.
(2) That the power under s. 47 could not be exercised to set aside the sale because the condition precedent to the exercise of this power had not been satisfied, that is, no material irregularity in the conduct of the sale had been alleged or proved; and, in addition, the applicant had not invoked s. 47.
(3) That if any other power were vested in the court to set aside the execution sale, there was no ground upon which it could properly be exercised since the property had been duly obtained under the Land Tenure Law and the appropriate subsidiary legislation thereunder and under the Abandoned Property (Control and Management) Edict, 1968.
(4) An execution sale will not be set aside merely because the judgment in respect of which the execution was levied is set aside.
Cases referred to:
Quartey-Papafio v. Laryea 3 W A C A 118.
Bank of the North v. Intra Bank 1968, (KANO, unreported, K/122/66).
APPLICATION to set aside Sale in Execution of Immovable Property.
SUIT NO. JD/9A/1970.
Ikomi for the Applicants.
Brown-Peterside for the 1st Respondent.
Fiebai for the 2nd Respondent.
Bate, S.P.J.:-The applicant, who trades under the name of M.O. Okoye and Sons, has applied by motion on notice for an order setting aside the sale in execution of immovable property at 27, Zaria Crescent, Jos. His affidavit in support of the application shows in effect that in 1966 he fled from Jos during a civil disturbance and did not return until January, 1970. In his absence the 1st respondent, the Bank of West Africa Limited, obtained judgment against him in a District Court at Jos and, with the leave of the High Court, his immovable property at 27, Zaria Crescent, was sold in execution to satisfy this judgment. The applicant was unaware of this until his return to Jos in 1970. He appealed against the judgment of the District court and succeeded in having it set aside, no retrial being ordered.
The purchaser at the execution sale of 27, Zaria Crescent was Mrs Umaru. These facts are not disputed and I accepted them as correct.
Mrs Umaru was put on notice to this application and made the 2nd respondent.
The first question is whether this Court has power to set aside an execution sale of immovable property. The only statutory power conferred on the court in this direction is that which appears in section 47 of the Sheriffs and Civil Process Law. No reliance has been placed on this by the applicant and it would not assist him since there is no evidence of irregularity in the conduct of the sale. Consequently a condition precedent to the exercise of the power conferred by section 47 has not been satisfied. No other express or statutory power has been drawn to my attention. Argument has been mainly directed towards the question whether or not the 2nd respondent acquired a good title by purchase at the execution sale.
It may be as well to say at this stage that the application as originally framed was "for leave to apply to discharge the order made on the 16th April, 1968, for the sale of the applicant's property lying being and situated at No. 27, Zaria Crescent, Jos..." What is described as an order was the grant of leave to levy execution on the applicant's immovable property as shown in Exhibit B to the applicant's affidavit. For the applicant it was submitted that the High Court has power to discharge such an order under the Supreme Court (Civil Procedure) Rules Order XXXIV, rule II. But when I observed that what is described in the notice of motion as an order is an order only in name since it blinds nobody to do anything and is in fact only a grant of leave, and then not in respect of 27, Zaria Crescent but in respect of the applicant's immovable property generally, Counsel for the applicant obtained leave to amend his notice of motion to its present form.
If the remedy given by section 47 of the Sheriffs and Civil Process Law is exclusive, then this application must fail. My attention has not been drawn to any other authority under which the High Court may set aside an execution sale. If it exists it must presumably be some common law power. But argument has proceeded on the assumption that such a power is vested in the High Court and has been concerned with the question whether or not that assumed power should be exercised. It does not appear to me that the High Court has any such power outside section 47 of the Sheriffs and Civil Process Law. But, in case I am wrong and in defence to the learned arguments which had been addressed to me, I will assume that there is such a power and will consider whether it should be exercised.
The first argument is that, since the District Court judgment was set aside, the execution sale of 27, Zaria Crescent must also be set aside. There is plenty of authority in relation to execution sales of goods but only two cases concerning land have been drawn to my attention. Neither of these helps the applicant. The first is Quartey-Papafio v. Laryea 3 W A C A 118 where it was held that the purchaser of land sold in execution obtained a good title even though the judgment which gave rise to the sale was set aside. And there is the earlier case cited in the English and Empire Digest, Blueband Edition, Vol. 21, at page 608, paragraph 971 to the same effect.
Both these decisions are mentioned by Wheeler J. in his judgment in Bank of the North v. Intra Bank 1968, (Kano, Unreported K/122/66). This case was concerned with shares in the Intra Bank sold in execution arising out of a decision subsequently set aside. In view of section 131 of the Evidence Law and the fact that no copy of Wheeler J's judgment has been admitted in evidence, I am uncertain of the extent, if any, to which I may properly refer to his judgment. But I think I may say that in his judgment Wheeler J. has collected an impressive number of authorities on the question whether an execution sale may be set aside when the judgment from which it arises is later set aside. The general rule to be gathered from these authorities is that an execution sale of goods will not be set aside merely because the judgment is set aside. It is true that the Intra Bank case refers to goods and is based, partly at least, on section 16 of the Sheriffs and Civil Process Law which applies to goods only. But it seems to me absurd to suppose that the Law would place the execution purchaser of immovable property in a different position to the execution purchaser of moveable property and give the former less protection than the latter.
But secondly it is argued that in the case of 27, Zaria Crescent the execution sale gave no title to the 2nd respondent because the necessary consent was not given under the Land Tenure Law or the Abandoned Property Edict. It has been submitted that the sale should therefore be set aside. The property sold was right of occupancy and section 53 of the Sheriffs and Civil Process Law requires consent or approval under the Land Tenure Law before a certificate of title may issue under section 50 of the Sheriffs and Civil Process Law. It is said that consent is required under section 28 of the Land Tenure Law and such consent has not been proved. If section 28 applies; the consent or approval required by the Land Tenure Law depends on the nature of the right of occupancy. It appears from the certificate of occupancy, Exhibit 3 and from the file Exhibit 1 that the right of occupancy relating to 27, Zaria Crescent is a statutory right of occupancy granted by a local authority. The relevant section of the Land Tenure Law would therefore be section 28 (3) which provides that "A statutory right of occupancy granted by a local administration or local authority under any regulations made under this law or under any written law replaced by this Law shall be transferred in the manner prescribed in such regulations." The relevant regulations appear to be the Land Tenure (Local Authority-Right of Occupancy) Regulations, and notably regulation 14. This regulation, on the face of it, requires the consent of the Provincial Commissioner and the approval of the local authority. There has not, so far as I have been able to discover, been any formal amendment with regard to the expression "Provincial Commissioner" although this office has long since ceased to exist.
The position is as follows. The office of Provincial Commissioner was created by the Provincial Administration Law in 1962: this transferred to Provincial Commissioners all statutory functions vested up to that time, that is 1962, in Residents. The Law Revision (Preparatory General Amendments) Law, 1963, section 6, made the necessary amendments to the laws. A fortnight after the Provincial Administration Law came into force the Land Tenure (Local Authority-Right of Occupancy) Regulations were introduced; regulation 14 required the consent of a Provincial Commissioner to the alienation of a local authority right of occupancy. In 1966, as is notorious, the office of Provincial Commissioner ceased de facto to exist. But it was not until the 1st October, 1968, that the Administrative Reforms Edict, 1968, repealed the Provincial Administration Law and in effect abolished de jure the office of Provincial Commissioner. The same Edict amended the Land Tenure (Local Administration-Rights of Occupancy) Regulations and the Land Tenure (Local Administration-Control of Settlements) Regulations by substituting for "Provincial Commissioner" the expression "Administrative Officer in charge of the Division." But, so far as I am aware, no similar amendment has been made to the Land Tenure (Local Authority-Right of Occupancy) Regulations, though from the repeal in October, 1968, of the Provincial Administration Law there has been no such office as that of Provincial Commissioner. However, in 1966, the Interpretation Law (Amendment) Edict, 1966, section 2( c) amended the Interpretation Law by adding to section 3 a new subsection in the following terms:
"(2) A reference in any Law of Edict, in relation to any functions, to an officer described by a designation which, under the system of government in force in a particular part of Nigeria, is no longer appropriate in relation to those functions shall be construed in relation to those functions and that part, as a reference to the person on whom the functions have devolved under the system of government of the time being in force in that part."
When that Edict was passed in 1966 the reference to Provincial Commissioners in regulation 14 of the Land Tenure (Local Authority-Right of Occupancy) Regulations was inappropriate. It is apparent from the evidence of Mr Sanda, the Permanent Secretary, and Mr Jang, the Senior Estates Officer, and from the file Exhibit 1, and in particular from page 89, that the functions of the Provincial Commissioner in relation to the alienation of local authority rights of occupancy in Benue-Plateau State have devolved on the Military Governor or the Commissioner for Lands and Surveys and I so find. The alternative arises from the evidence of the Permanent Secretary, which I accept, that the Military Governor at the material time himself held the portfolio of the Commissioner for Lands and Surveys. I conclude that the reference in regulation 14 to the Provincial Commissioner must be construed as a reference to the Military Governor or the Commissioner for Lands and Surveys.
In the present case I find that consent was given to the sale to the 2nd respondent of 27, Zaria Crescent by the Military Governor who was also the Commissioner for Lands and Surveys and this is sufficient consent under section 28 of the Land Tenure Law and the Land Tenure (Local Authority-Right of Occupancy) Regulations. The fact that the word "consent" was not used is immaterial. The necessary consent is clearly implied by the word "Approved". There is therefore no substance in the argument that no title passed to the 2nd respondent for lack of the necessary consent under section 28 of the Land Tenure Law and that therefore the sale ought to be set aside.
It was argued with regard to section 28 of the Land Tenure Law generally that, even if consent had been obtained, it was not prior consent as required by section 28(1) and therefore not effective consent. But, if I am right in thinking that the right of occupancy to 27, Zaria Crescent is a local authority right of occupancy to which section 28(3) and the Land Tenure (Local Authority-Right of Occupancy) Regulations apply, prior consent is not required by regulation 14 and is not necessary. And, in any event, the requirement of prior consent cannot be interpreted to mean that consent is required before an execution sale because section 53 of the Sheriffs and Civil Process Law indicates that it is after the sale that consent is to be obtained and the tenor of sections 44-52 of that Law is to the same effect. Apart from this, it would be absurd to suppose that consent is required before the sale and before the identity of the purchaser is known.
But I do not think that section 28 is the relevant section. It is section 42 which controls execution sales. This section provides that "No right of occupancy granted under the provisions of this Law or under the provisions of any written Law replaced by this Law which is subject to a covenant, whether express or implied, by the holder not to assign, or which under any law may not be alienated without the consent or approval of the Military Governor or the Commissioner or a local administration or local authority shall be sold by or under the order of a court save to a purchaser approved in writing by the Commissioner and upon terms also so approved." Since the right of occupancy in question is a local authority right of occupancy the relevant regulations are the Land Tenure (Local Authority-Right of Occupancy) Regulations and notably regulation 14. This regulation requires the consent of the Military Governor or the Commissioner. Since the right of occupancy to 27, Zaria Crescent was granted under the Land Tenure Law or its predecessor, the Land and Native Rights Ordinance, and it may not be assigned except with the consent of the Military Governor or the Commissioner, section 42 applies and the written approval of the purchaser by the Commissioner is required. Written approval of the 2nd respondent as purchaser was given at page 89 of the file, Exhibit 1, by the Military Governor who, as I have already found, was at the material time also the Commissioner. The grant appears to be unconditional and not upon terms requiring approval. This appears to me to satisfy the requirements of section 42 and I do not think that there is any such lack of consent as would justify the setting of the execution sale.
I must also mention the argument for the 1st respondent that the certificate of occupancy to 27, Zaria Crescent, that is Exhibit 3, has been improperly admitted in evidence since it had not been registered in accordance with the Land Registration Law. Reliance was placed on section 15 of that Law and it was submitted that regulation 6 of the Land Registration Regulations which excepts local authority certificates was void for inconsistency by virtue of section 20(1)(d) of the Interpretation Law. This argument fails because section 34 of the Land Registration Law gives power to make regulations excepting from the Law any class of instrument. This is exactly what regulation 6 does. There is therefore no inconsistency.
But is argued further that, even if consent was given under the Land Tenure Law, no title passed to the 2nd respondent because she did not obtain the consent required by the Abandoned Property Edict, 1968. Section 8(3) of that Edict provides that:-
"Subject to the provisions of subsection (1) any transaction entered into after the 15th January, 1966, relating to the sale, lease or disposal of any abandoned property shall be null and void unless such transaction is approved by the Military Governor on or before 31st day of December, 1970."
The 2nd respondent frankly admitted that she had not applied for any such consent because she had not known that she was under any obligation to do so. This is hardly surprising since the Edict did not come into force until the 1st August, 1968, several months after the execution sale on the 11th May, 1968; and, even if she had read the first seven sections, the 2nd respondent would not have known that section 1 does not mean what it says but that its meaning with regard to the date of commencement is qualified by section 8(3). On the other hand it is clear from the evidence of the Permanent Secretary and the Senior Estates Officer and from page 89 of the file Exhibit 1 that the Military Governor gave his approval. It is true that, in relation to land matters, the Military Governor evidently has more than one statutory function in his capacity as Commissioner for Lands and under the Abandoned Property Edict, 1968, and that there does not appear to have been any formal reference to him under the Edict with regard to 27, Zaria Crescent. But I see no reason to believe that the Governor would express his approval in general terms and then in some other capacity would withhold his consent to the same transaction. A more common sense solution and one more appropriate to an honest attempt to introduce order into the confusion resulting from the various changes in political control in the last few years is to construe the Military Governor's approval as a general approval and this is the construction which I adopt. Therefore, even if power were vested in this Court to set aside the execution sale of 27, Zaria Crescent, I do not think that this is a case where it ought to be exercised and I decline to do so.
To summarise, I find that I have no power to set aside the execution sale of 27, Zaria Crescent; and, that if there were such power, this is not a case where is should be exercised since no sufficient reason has been supplied for disturbing the respondent's title as a bona fide purchaser for value at an execution sale. In any event, if the sale were ineffective to pass a valid title, there would be no point in setting the sale aside. I do not say that the applicant has no remedy but he is not entitled to the relief which he asks in this application.
The application is dismissed.