LEGAL PRINCIPLE: CONSTITUTIONAL LAW – Fair Hearing – Invalidity of Ex Parte Order for Execution Against Immovable Property
PRINCIPLE STATEMENT
A judgment debtor is entitled to be put on notice of a motion to attach and sell his immovable property. Failure to do so is a defect affecting the competence of the court, and the whole proceedings leading to the grant of leave are a nullity.
RATIO DECIDENDI (SOURCE)
Per Ogundare, JSC, in Leedo Presidential Motel Ltd v. Bank of the North Ltd (1998) NLC-411992(SC) at pp. 29–30; Paras B–D.
"I hold that the appellant was entitled to be put on notice of motion brought by the judgment creditor to attach and sell her immovable property... The failure is a defect that affected the competence of the trial High Court... Condition (3) was breached in this case and the whole proceedings leading to the grant of leave to attach and sell are a nullity."
EXPLANATION / SCOPE
Notice is a condition precedent for execution against immovable property. Failure to give notice renders the proceedings a nullity. The principle protects fair hearing rights. The court loses competence without notice. The rule applies to all execution proceedings. The judgment creditor must follow the prescribed procedure. The principle is constitutional.
