Ibrahim Master V. Mohammed Mansur & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal is against the decision in the ruling of the Kaduna State High Court in Suit No. KDH/KAD/284/2003 delivered by Honourable Justice M. T. M. Aliyu on the 15th of March 2006. The Appellant commenced an action in the lower Court under the Fundamental Right (Enforcement Procedure) Rules and he prayed for:

i. A declaration and an Order that the purported attachment and confiscation of the Applicant’s property lying and situate at No. MK 14, Magaji Sambo Road, Tudun Wada, Kaduna purportedly made in the course of the judgment in satisfaction of the terms of the said judgment without affording the Applicant an opportunity to pay the judgment debt and without previously attempting to dispose of his movables and without affording him a hearing is unconstitutional and a breach of his right to fair hearing as guaranteed by Section 36 of the 1999 Constitution.

ii. A declaration that the sale of the Applicant’s property lying and situate at MK 14, Magaji Sambo Road, Bakinruwa Tudun Wada, Kaduna which was carried out on the 20th of February, 2004 in the unlawful execution of the judgment of the Upper Sharia Court Tundun Wada, Kaduna, in case No. 192/2003 amounts to a violation of the Applicant’s inviolable right to acquire and own immovable property contrary to the provisions of Sections 43, 44 of the Constitution of the Federal Republic of Nigeria, 1999 and the African Charter on Human and Peoples Right (Ratification and Enforcement) Act Cap 10, Laws of Federation 1990 and is therefore unconstitutional, unlawful, illegal, null and void.

iii. A declaration that the purported sale of the Applicant’s property lying and situate at No MK 14, Magaji Sambo Road, Tudun Wada, Kaduna on the 20th of February, 2004 under the guise of execution of the judgment of the Upper Sharia Court Tudun Wada Kaduna in Case No. 192/2003 violates the Applicant’s sacred and inviolable right to own property and from being expropriated by others without due process or compensation and has deprived him of his proprietary vested right in the said property.

iv. An order of this Honorable Court setting aside the purported sale of the Applicant’s property situate at No. MK 14, Magaji Sambo Road, Bakinruwa Tudun Wada, Kaduna (by quashing the proceedings of the Upper Sharia Court Tudun Wada, Kaduna) and reverting tide in the property to the Applicant.

v. An order of injunction staying all proceedings including the appeal in this matter before the Sharia Court of Appeal, pending the determination of this application for the enforcement of the Applicant’s fundamental rights.

The case of the Appellant in the affidavit in support of the application was that the first Respondent commenced an action against him in the Upper Sharia Court, Tudun Wada for criminal breach of trust and claiming the sum of N470,000.00 which he allegedly collected from the first Respondent for the purpose of acquiring a shop and that the matter was transferred to the civil cause list and that on the 8th of December, 2003, the Upper Sharia Court entered judgment against him and ordered him to pay the sum of N470,000.00 to the first Respondent; certified copies of the judgment in Hausa and its English version were Exhibits 1 and 1A.

It was his case that he filed an application before the Upper Sharia Court for an order setting aside the notice of sale pasted on the property and for instalmental payment of the judgment sum on the 24th of January, 2004 and that while the application was pending, the Upper Sharia Court ordered that his house be sold in execution of the judgment a copy of the application was Exhibit 2.

It was his case that on the 23rd of February, 2004, the second Respondent wrote to inform him that his property has been sold pursuant to the judgment and that he filed an application on 6th of January, 2004 for leave to appeal out of time to the Sharia Court of Appeal and for stay of execution of the judgment of the Upper Sharia Court the Hausa and English versions of the letter and the application were Exhibits 3, 3A and 4.

It was the case of the Appellant that he was granted leave to appeal out of time by the Sharia Court of Appeal, copy of ruling was Exhibit 5, and that he filed two separate applications for certiorari before the High Court of Kaduna Sate for the quashing of the proceedings, judgment and orders of the second Respondent and the two applications were refused; copies of the rulings were Exhibits 6 and 6A.

It was his case that the Upper Sharia Court did not have jurisdiction to order the sale of his property in satisfaction of the judgment debt and that the rules governing execution of judgment of Sharia Courts only empower the Courts to deal moveable properties and that there are no rules in respect of immovable property.

It was his case that the unlawful sale of his property in execution of the judgment of the Upper Sharia Court amounted to a contravention of his fundamental rights as it denied him proprietary rights to his property and in consequence of which he and his family have been rendered homeless.

The Respondents did not file any response to the application. The lower Court heard the application and counsel to all the parties addressed the lower Court. At the conclusion of the hearing, the lower Court struck out the application of the Appellant for being incompetent. The lower Court stated thus: