The 2nd respondent obtained judgment against the appellant at the
Anambra State High Court in the sum of N6, 300,000.00 on 29th July 1998.
The 2nd respondent thereafter registered the judgment at the Lagos High
Court and on 15th April 1999 levied execution on the movable property of
the 2nd appellant. The sum recovered from the sale of the immovable
property did not satisfy the judgment debt and the 2nd respondent obtained
from the Lagos State High Court a writ of execution against the immovable

property of the 2nd appellant. 2nd appellant’s property situate at plot 19A
Salaudeen Akano Street Ogudu GRA Ikeja was thereafter sold to the 1st
respondent in an auction sale conducted by the Sheriff of the High Court of
Lagos State. By a motion ex parte dated 16th December 2002, the 1st
respondent who did not obtain vacant possession when she purchased plot
19A Salaudeen Akano Street, Ogudu GRA Ikeja applied to the Lagos State
High Court seeking an order putting her in exclusive and outright possession
of the said property. On 20-1-03 the Lagos State High Court made the order
sought by the 1st respondent and put her in exclusive and outright possession
of the said property.
By an application dated 26/3/03 the appellant sought of the High
Court of Lagos State the following prayers:
“1. An order extending the time within which the 1st and 2nd
Defendants/applicants may apply to set aside and discharge the
orders of this honourable court made on the 20th January 2003
granting “… exclusive and outright possession of the
immovable property known as Plot 19, Salaudeen Akano Street,
Ogudu G.R.A.” and belonging to the 2nd applicant to the herein
Purchaser/Respondent.
2. An order setting aside and in the process discharging the orders
of this honourable court made on the 20th January 2003
granting “… exclusive and outright possession of the
immovable property known as Plot 19, Salaudeen Akano Street,
Ogudu G.R.A.” and belonging to the 2nd applicant to the herein
Purchaser/Respondent.
3. An order granting immediate and outright possession of the
immovable property known as Plot 19, Salaudeen Akano Street,

Ogudu G.R.A. and covered by conveyance registered as No. 89
at page 89 in volume 1917 of the Lagos Land registry, Ikeja,
Lagos State to the herein 2nd defendant/applicant pending the
determination of the motion dated 5th February 2002 to set aside
the default judgment and orders for execution, pending before
the High Court of Anambra State, Onitsha (herein Exhibited).”
“GROUNDS FOR APPLICATION
1. The 1st and 2nd defendants/applicants fundamental and
constitutional rights to be heard were infringed upon.
2. The 1st and 2nd defendants/applicants fundamental and
constitutional rights to property and the peaceable enjoyment
thereof was infringed upon.
3. The honourable court lacked the jurisdiction to make the orders
dated 20th January 2003 and such further orders flowing there
from.
4. The ex parte orders made on the 20th January 2003 by this
honourable court were null and void for misrepresentation and
fraud there being a subsisting and pending motion dated 5th
February 2002 to set aside the default judgment and orders for
Execution, pending before the High Court of Anambra State,
Onitsha (herein Exhibited).”
Annexed to the motion paper is a nine paragraph affidavit. The most
relevant paragraphs of the said affidavit in my opinion are paragraphs 3(L),
3(N) and 4 and these are reproduced hereunder:
“3L. That 2nd defendant/applicant woke on Monday the 3rd day of
February 2003 only to find a detachment of police and one Mr.

Sunday Omijie – the bailiff of this honourable court in front of
his gate informing him that they had come to execute a court
order for possession.
3N. That he became aware of the fact that it was upon the
application of the Purchaser/Respondent that the said order was
obtained.
4. That the 2nd defendant was never put on notice in respect of any
application for leave to attach and sell his immovable property
neither was he made aware by service of the relevant court
processes of the writ of possession.”
The court below in a considered ruling on 18/9/03 refused the application
hence this appeal.
In their amended notice of appeal filed on 30/1/07 the appellants set
out four grounds of appeal to wit:
“1. ERROR IN LAW
The learned trial judge erred in law when he granted an ex parte
application filed by the 1st respondent for a writ of possession
of the immovable property known as plot 19, Salaudeen Akano
Street, Ogudu G.R.A. and belonging to the 2nd appellant herein
to the 1st respondent and refusing to set aside/discharge the said
ex parte orders upon the application of the appellants by his
ruling of 18th September 2003 especially as that was a negation
of the fair hearing principle as provided for under the Sheriffs
and Civil Process Act Cap 407 LFN.
1990 which clothes the court with the requisite jurisdiction.
2. ERROR IN LAW

The learned trial judge erred in law when he failed to avert his
mind to the basic rule of natural justice and also the appellants
constitutionally guaranteed rights to be heard in the
determination of their civil rights/interest. In this regard the
learned trial judge erred in law when without hearing the
appellant went ahead to grant ex parte orders for possession of
the immovable property known as Plot 19 Salaudeen Akano
Street, Ogudu G.R.A. to the 1st respondent.
3. MISDIRECTION IN LAW
The learned trial judge misdirected himself on the law when he
wrongfully justified the grant of his ex parte orders of 20th
January 2003 on the ground that the appellants have not been
diligent in attending to the suit and protecting their interests in
the property.
4. The judgment is against the weight of evidence.”
From these grounds of appeal, the appellants distilled three issues for
determination to wit:
“1. Whether or not given the peculiar circumstances of this case,
the High court of Lagos per Honourable Justice L.G.A. Marsh
was right to proceed to hear and grant to the 1st
respondent/purchaser ex parte, the exclusive and outright
possession of the immovable property at plot 19A Salaudeen
Akano Street, Ogudu GRA. Lagos without an appropriate
consideration of the audi alteram partem rule on the one hand
and to subsequently refuse to set aside such orders when an
application to that effect was brought to his attention. (Ground
2 of the Amended Notice of Appeal).

2. Whether the High Court of Lagos was right in granting the ex
parte orders of 20/01/2003 and further refusing to set aside the
same orders granting the 1st respondent/purchaser exclusive and
outright possession of the immovable property at plot 19A
Salaudeen Akano Street, Ogudu GRA. Lagos given the basic
and constitutionally guaranteed right of the 2nd appellant to
property. (Ground 1 of the Amended Notice of Appeal).
3. Whether or not the High Court of Lagos per Honourable Justice
L.G.A. Marsh was right to examine issues extrinsic to the
applications filed before the court and to consider issues not
canvassed by the parties for the purpose of determining the
application before the court and also whether the lower court
failed to consider material questions raised by the appellants
before it. (Ground 3 of the Amended Notice of Appeal).”
The 1st respondent in her brief of argument distilled these issues for
determination from the three grounds of appeal to wit:
“(i) Whether in the circumstances of the case the appellants were
denied fair hearing as a result of the order for possession
granted to the 1st respondent by the court below in view of the
valid and subsisting sale of the property to the 1st respondent by
the Deputy Sheriff of the High Court of Lagos State. (Ground
1).
(ii) Whether the remedy of the appellants is the relief being sought
in this Honourable Court in view of the complaint of the
appellants which is denied that the basic and constitutional
guaranteed right of the 1st appellant was breached (ground 2).

(iii) Whether the ruling of the court below dated the 18th day of
September 2003 did not consider the issues canversed by the
parties before it before arriving at its decision. (Ground 3).”
The issues as articulated by the appellants are apposite and this appeal
shall be determined along those lines.
Issue No. 1: Whether or not given the peculiar circumstances of this
case, the High Court of Lagos Per Honourable Justice L.G.A. Marsh
was right to proceed to hear and grant to the 1st respondent/purchaser
ex-parte the exclusive and outright possession of the immovable
property at Plot 19A Salaudeen Akano Street, Ogudu G.R.A. Lagos
without an appropriate consideration of the audi alteran patem rule on
the one hand and to subsequently refuse to set aside such orders when
application to that effect was brought to his attention.
In arguing this issue, appellants counsel had challenged the
competence of the court in making an order ex parte granting exclusive and
outright possession of the immovable property. He cited Madukolu vs
Nkemdilim (1962) ALNWLR 581 and Skenconsult (Nig) Ltd & Anr vs.
Secondy Ukey (1981) 1SC 6 to buttress his argument that having not been
put on notice of the application seeking to deny the appellants possession of
the property they were possessed of, the court below was incompetent to
hear the application. He cited Order 42 Rule 3 High Court of Lagos State
(Civil Procedure) Rules 1996 to show under the extant rules of the High
Court of Lagos the only circumstance in which the court below may proceed
ex – parte against a respondent and argued that this case did not come within
the circumstance contemplated. He argued that the whole proceedings was a
breach of the audi alteram patem rule of natural justice and that no court
ought to deprive any party of property without putting the party on notice

and relied on Leed O Presidential Motel vs B.O.N. Ltd (1998) 10 NWLR
(pt.570) 353.
In answer to this argument the 1st respondent posited that by her
purchase of the property the subject matter of this dispute in a public
auction, she had acquired vested right and interest in the property. She
argued that from the fact of the case there had been no miscarriage of justice
and that S.51 of the Sheriffs and Civil Process Act under which the
application at the lower court was argued and granted did not provide that
the respondent should be put on notice.
This issue brings to the fore yet again S.36 (1) of the Constitution of
the Federal Republic of Nigeria 1999 and its jurisprudential foundation
which are constituted by the two basic tenets of the concept of fair hearing to
wit: audi alteram patem and nemo judex in causa sua i.e. hear the two
sides in a dispute, and no man shall be a judge in his own case. The facts in
this case are not in dispute. The appellants are judgment debtors against the
2nd respondent. The 2nd respondent had levied execution against the
appellants and in the process caused the property situate at Plot 19A
Salaudeen Akano Street, Ogudu GRA Lagos to be sold by public auction to
the 1st respondent with the sale, title to the property became vested in the 1st
respondent. But possession still remained in the 2nd appellant. To recover
possession therefore, the 1st respondent approached the Lagos State High
Court pursuant to S.51 of the Sheriff and Civil Process Act and her
application was granted. It is the procedure for the grant of this application
that is being challenged. S.36 (1) of the Constitution of the Federal Republic
of Nigeria 1999 provides as follows:
“36(1) In the determination of his civil rights and obligations,
including any question or determination by or against any

government or authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other tribunal
established by law and constituted in such manner as to secure
its independence and impartiality.”
This provision encapsulates the two basic rules of natural justice
earlier set out. See Ndulue vs Ibezim (2002) 12 NWLR (pt 780) 139, AZU
vs U.S.N Plc (2004) 14 NWLR (pt 893) 402.
The courts have consistently held that where an order is made against a party
who was not informed or given notice of the suit or proceeding and therefore
was not given an opportunity of being heard, the party has been denied fair
hearing and the denial amounts to a violation of S. 36(1) of the 1999
Constitution. See Ndulue vs Ibezim Supra: In fact in OTAPO VS
Sunmonu (1987) 2 NWLR (pt 58) 587 OBASEKI, JSC HAD THIS TO
SAY: “A hearing can only be fair when all parties to the dispute are given a
hearing or an opportunity of a hearing. If one of the parties is refused a
hearing or not given an opportunity to be heard, the hearing cannot qualify
as fair hearing….. Without fair hearing, the principles of natural justice are
abandoned, and without the guiding principles of natural justice, the concept
of the Rule of Law cannot be established and grow in the society.” Hearing
a suit or motion ex-parte i.e. without putting the other party on notice or
giving that party the opportunity of being heard is therefore intrinsically
unconstitutional. However, circumstances do arise in which courts can
legitimately make orders ex-parte and these are (a) when from the nature of
the application the interest of the adverse party will not be affected and (b)
when time is of the essence of the application. See Bayero vs F.M.B.N.

(1998) 2 NWLR (pt 538) 509. This is also embedded in Order 42 Rule 3 of
the High Court of Lagos State (Civil Procedure) Law 1994 which reads thus:
“3. Except where according to the practice existing at the time of
the passing of the Law any order or rule might be made
absolute ex-parte in the first instance, and except where
notwithstanding rule 2 a motion or application may be made for
an order to show cause only, no motion shall be made without
previous notice to the parties affected thereby. But the Court if
satisfied that the delay caused by proceeding in the ordinary
way would or might entail irreparable or serious mischief, may
make any order ex-parte upon such terms as to costs or
otherwise and subject to such undertaking, if any, as the Court
may thing just; and any party affected by such order may move
to set it aside.”
In the application under review, the possessory interest of the appellants was
affected by the application which in effect was an application for ejection
and time was not of the essence as nothing would have happened to the res
had there been a delay of a few days to put the appellants on notice.
The respondent had argued that S.51 of the Sheriffs and Civil Process
Act under which the application was made did not provide that the
application should be made on notice. The section reads:
“51. If the property sold shall consist of a house, land or other
immovable property in possession of a judgment debtor or
some person on his behalf or of some person claiming under a
title created by the judgment debtor subsequently to the
attachment of such property, the court shall, on the application
of the purchaser, order delivery thereof to be made by putting

the party to whom the house, land or other immovable property
may have been sold or any person whom he may appoint to
receive delivery on his behalf, in possession thereof and, if need
be, by removing any person who may refuse to vacate the
same.”
As I had stated earlier, ex-parte applications are intrinsically
unconstitutional. Where as in the instant case there is not statutory
requirement that the application be heard ex-parte, prudence ought to have
demanded of the trial judge in the circumstances of the case particularly the
fact that the possessory interests of the appellants would be affected by the
order sought, to order that the appellants be put on notice see Bayero vs
F.M.B.N. Supra, Leedo Presidential Motel vs B.O.N. Ltd supra.
I am not in doubt that the hearing of the application by the High Court
of Lagos State without putting the appellants on notice did violence to the
principles of fair hearing and is in breach of the audi alteram paterm rule
and S.36(1) of the Constitution of the Federal Republic of Nigeria 1999.
The appellant has made some ingenious submission contending that there is
a want of jurisdiction in the court below to hear the application, relying on
some decided cases. However, the most apposite decision of the Supreme
Court relating to the given situation is to be found in Ohai vs. Akpoemonye
(1999) 1 NWLR (pt 588) 521 where the court held that though the
observance of the rules of natural justice is an essential requirement in the
administration of justice, it has nothing to do with defect in jurisdiction
because defect in jurisdiction relates to embarking on the case and not to
miscarriage in the course of it or to the correctness of the decision as it is
after the court has assumed jurisdiction properly that observance of the rules

of natural justice would be looked into. Over all I find this issue in favour of
the appellant. Ground 2 of the Ground of Appeal succeeds.
Issue No. 2 Whether the High Court was right in granting the ex-parte
order of 20-01-03 and further refusing to set aside the same orders
granting the 1st respondent/purchaser exclusive and outright possession
of the immovable property at Plot 19A Salaudeen Akano Street GRA
Ikeja Lagos given the basic and Constitutionally guaranteed right of the
2nd appellant to property.
This issue and ground 1 of the grounds of appeal on which it is
founded are totally misconceived as the application on which the court
below ruled on 20-01-2003 was only in relation to possession. The 2nd
appellant had earlier through the execution of the judgment of the High
Court of Anambra State lost his property right to the property in question.
The application being considered by the court below and which was
determined on 20-01-03 was not an application challenging the writ of
execution or sale of the property in question. Neither ground 1 of the
grounds of appeal nor the issue formulated there from emanated from the
contested issues that was ruled on 20-01-03. This issue does not succeed
and ground 1 of the grounds of appeal fails.
Issue No. 3: Whether or not the High Court of Lagos per Honourable
Justice L.G.A. Marsh was right to examine issues extrinsic to the
applications filed before the court and to consider issues not canvassed
by the parties for the purpose of determining the application before the
court and also whether the court failed to consider material questions
raised by the appellant before it.
I had earlier in this judgment found for the appellant on issue no 1 and
held that the hearing of the application in the court below was in breach of

the rules of fair hearing. The question of the fairness of a proceeding is
extrinsic to the question of the merit of the trial court’s decision. See
Idakwo vs Ejiga (2002) 13 NWLR (pt783) 156. What I am required to do
at this point is to set aside the proceedings at the court below and order fresh
hearing of the application for possession.
This appeal succeeds. The proceedings in the application for
possession up to and including the ruling of the Lagos State High Court on
20-01-2003 is hereby set aside. The said application is hereby ordered to be
given fresh hearing which hearing shall be by another Judge of the Lagos
State High Court. There shall be costs in favour of the appellants against the
1st respondent in the sum of N10, 000.00.