LEGAL PRINCIPLE: CIVIL PROCEDURE – Execution – Setting Aside Sale of Property – Requirement to Prove Both Irregularity and Substantial Injury
PRINCIPLE STATEMENT
For the sale to be set aside the Appellant must not only prove that there was material irregularity in the conduct of the sale but also that he sustained substantial injury by reason of such irregularity (See for example section 46 of the Sheriffs and Civil Process Law Cap. 118 Laws of East Eastern Nigeria, 1963 Alhaji Nakyauta v. Alhaji Maikima (1977) 6 SC. 51 Government of Ashanti v Korkor 4 WACA 83).
RATIO DECIDENDI (SOURCE)
Per Kutigi, JSC, in Akpunonu v. Beakart Overseas & Ors (2000) NLC-601995(SC) at p. 5; Paras A–B.
"For the sale to be set aside the Appellant must not only prove that there was material irregularity in the conduct of the sale but also that he sustained substantial injury by reason of such irregularity (See for example section 46 of the Sheriffs and Civil Process Law Cap. 118 Laws of East Eastern Nigeria, 1963 Alhaji Nakyauta v. Alhaji Maikima (1977) 6 SC. 51 Government of Ashanti v Korkor 4 WACA 83)."
EXPLANATION / SCOPE
Setting aside a court sale of property requires proof of two cumulative elements: (1) material irregularity in the conduct of the sale; and (2) substantial injury suffered by the applicant as a result of that irregularity. Irregularity alone is insufficient; the applicant must demonstrate actual prejudice—that they suffered significant loss or that the sale price was inadequate due to the irregularity. This dual requirement prevents frivolous challenges and balances the need for procedural fairness with finality in execution proceedings. Substantial injury is assessed based on the circumstances of each case.