This is an appeal against a ruling of Kolo, C.J. of Borno State High Court, Holden at Maiduguri in suit No. M/140M/93, delivered on 28/3/95, wherein he refused to set aside the sale of 1st respondent's landed properties which had been sold by auction with leave of the said Court in part satisfaction of a debt of N3,764,863.85 adjudged by the said Court to be due and payable by the 1st respondent to the appellant.

The plaintiff/applicant at the court below by way of Motion on Notice south several reliefs. The main grounds for the application was that the auction sale sought to be set aside was conducted without advertisement in any of the National Newspapers or Print Media as ordered by the trial Court, and also that the said houses or landed properties were sold at gross undervalue, far below the reserved prices given by the applicant.

In opposition to this, the 1st – 4th respondents filed their counter-affidavits in which they disclosed that the auction sale was indeed advertised by means of posters pasted at strategic places, and also published in the New Nigeria Newspaper, on a date that was not mentioned, and no copy exhibited. It was also argued by the learned counsel for all the respondents that under the Sheriffs and Civil Process law of Northern Nigeria, any application to set aside an auction sale ordered by the court for substantial irregularities, must be filed within 21 (twenty-one) days from the date of the said auction sale. But in the instant case, the applicant waited until after four years and some months before filing his application. As for alleged non-advertisement of the sales they argued that the onus was on the auctioneer (5th respondent), who was the agent to applicant to have taken steps to advertise the sale, but he failed to do so, and resorted to pasting of posters. Applicant should not be allowed to profit from his own wrong. They therefore urged the court to refuse the application. After careful consideration of all the facts and law on the matter, the learned trial Judge, Kolo, C. J. upheld the arguments of the respondents and dismissed the application of the applicant in it entirety with N1, 000.00 costs.

Dissatisfied, the applicant appealed to the Court of Appeal.

The 4th respondent filed a preliminary objection to the competence of the appeal on the ground that the appellant needed leave of court before it could appeal, which was neither sought nor obtained.