Legal Nuggets (53): Effect of Failure to Timeously Challenge Auction of Immovable Property.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

EZEKWERE vs. OKIKE(2018)LPELR-45012(CA)
                             
ISSUE: AUCTION SALE-Effect of failure to timeously challenge the auction of an immovable property
                                             
PRINCIPLE:
"There is evidence on record that the Appellant and his father were present during
the auction of the said land by the Sheriff and that they did not raise any objection.
(See paragraph 14 of the witness deposition of Defendant/Respondent). This was not
denied by the Claimant. It needs be noted that the action challenging the auction of
the land in dispute was instituted on 28/1/2010 about 10 years after the auction.
The Defendant/Respondent purchased the piece of land by auction on 28/1/2000.
It seems to me too late in the day to challenge the sale by auction by Sheriff ten
years after the said auction. I resolve this issue against the Appellant.
I am more fortified in this view when one refers to the provision of Order XIV Rules
1-4 of the Customary Court Rules of Imo State 1989 which reads as follows:-

1. "Any person who claims that any property, whether movable or immovable, which
has been attached is liable to be sold on execution of a judgment or order against
the judgment debtor, may apply to the Court which issues the writ of attachment
and sale for the sale of a summons calling upon the judgment creditors to appear
before the Court on a date and at an hour specified in the summons to show cause
why the property should not be released from the attachment.

2. (1) When the claim is investigated by the Court, it shall have the same powers as
if the Claimant had been originally a party to the suit:
Provided that if it appears to the Court that owing to the value of the property
attached, it would not have been within its jurisdiction to determine the claim in an
original suit, it shall-

(a) Order the Claimant to institute proceedings in a Court of competent jurisdiction
within thirty days for the purpose of establishing his claim; and

(b) Stay the proceedings on the writ of attachment and sale until the issue between
the judgment creditor and the Claimant has been determined by a Court of
competent jurisdiction.

(2) If it appears that the property attached is not liable to be sold in execution of the
judgment or order, the Court shall make an order releasing the property from
attachment.

(3) If it appears that the property attached is the property of the judgment debtor,
the Court shall disallow the claim and dismiss the summons.
3. (1) A claim must be made to the Court at the earliest opportunity and if the
attached property has been advertised for sale, the sale shall be postponed until the
claim has been investigated.

(2) When it appears to the Court that there has been deliberate delay, or when the
sale has taken place before the claim was made, the interpleader proceedings shall
be dismissed.

4. (1) Every application by a Claimant for an interpleader summons shall be
supported by a declaration by the Claimant, which may be on oath at the discretion
of the Court, specifying the property of the Claimant and setting out the grounds
upon which it is claimed.

By the provision of Order XIV Rule 3(2) of the said Rules when the sale of the
immovable property is completed even an interpleader proceedings shall be
dismissed. Ordinarily, the Claimant should have timeously instituted interpleader proceedings
under Order XIV of the Rules. This he has failed to do. To add to it, the sale of the
property was completed 10 years before the action of the Claimant." Per AWOTOYE, JCA.(Pp.24-27,Paras.B-A).