Alhaji Moukhtar Dauda V. Alhaji Abdulkadir Aliyu (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Kaduna State in Suit No KDH/KAD/154/2010 delivered by Honorable Justice Hajaratu Gwadah on the 19th of November, 2010. The Appellant commenced the action in the lower Court against the Respondents by an application for judicial review and by which he prayed for:

i. An order of certiorari to remove to the lower Court the judgment, order and proceedings of the Rent Tribunal Court 2 sitting at the Upper Sharia Court, Tudun Wada Kaduna in Case No RT/CT2/304/2007 and which judgment was delivered on the 17th of February, 2010 for the purpose of quashing same.

ii. An order directing that since the Applicant resides in property known and situate at KZ. 21 Zango Road, Tudun Wada, Kaduna, the judgment of the lower Court given against KZ.31, Zango Road, Tudun Wada, Kaduna cannot affect him and he cannot be evicted from the said KZ. 21, Zango Road, Tudun Wada, Kaduna since no judgment of the lower Court or any other judgment is to that effect.

?iii. An order directing the respondent to pay to the applicant the sum of N500,000.00 which was lost during

1

the forceful ejection of the applicant.

iv. The sum of N500,000.00 as general and exemplary damages against the respondents for their acts of recklessness.

The facts of the case as garnered from the records of appeal are pretty straightforward. The Appellant was the owner of a property situate and known as No KZ.21, Zango Road, Tudun Wada, Kaduna. There was a dispute between the Appellant and the School of Practice of Islamic Teaching over a plot of land that the school purchased from the Appellant and in respect of which the school demanded a refund.

The matter was taken before the Upper Sharia Court in Case No 146/2003 and on the 28th of April, 2003, the Upper Sharia Court, after hearing the parties, entered judgment against the Appellant in the sum of N463,000.00 and the Appellant was given thirty days, i.e. alt the 28th of May, 2003, to settle the judgment sum. The Appellant appealed against the judgment to the Sharia Court of Appeal in Appeal No KDS/SCA/KD/32/2003, but the appeal did not go anywhere. When the Appellant failed to settle the judgment debt as directed by the Upper Sharia Court the Upper Sharia Court carried out a public auction of

2

his property which was described as being At KZ.31, Zango Road, Tudun Wada, Kaduna on the 26th of February, 2004 and the property was purchased by the first Respondent at the auction which took place at location of the property in question.

The Appellant commenced an action in the High Court of Kaduna State to challenge the auction of his property in Suit No KDH /KAD/72M/2004 and this action was dismissed by the High Court on the 27th of July 2005 for want of diligent prosecution. The Appellant retained possession of the property all these while. Upon the dismissal of the action, the Upper Sharia Court issued an ejection order dated the 20th of October, 2005 directing the Appellant to hand over possession of the property to the first Respondent forthwith. The Upper Sharia Court also issued the first Respondent with a certificate of purchase of the property dated the 28th of November, 2005 and it wrote a letter dated the 3rd of January, 2005 to the Appellant requesting him to come and collect the balance of the sale price of the property, after the deduction of the judgment sum. The Appellant thereupon commenced another action in the High Court of

3